[EL] @TheRepLawyer, 2/7/12 12:43 PM
Justin Levitt
levittj at lls.edu
Tue Feb 7 14:01:18 PST 2012
Well, I seem to recall not only novel schemes, but old schemes applied
in new ways in order to disenfranchise. I'm not sure that focusing on
novelty alone would get at the relevant harm. And approving laws in the
absence of evidence of discriminatory purpose or effect is essentially
how section 2 works now; section 5, flipping the burden of proof, was
designed to be stronger medicine.
But on Sam's point, I think there's another logical flaw in South
Carolina's argument.
The Court in /Crawford/ found that the /Crawford/ plaintiffs did not put
forth evidence proving that the law they were challenging created a
burden on the right to vote in violation of the standard under the
federal Constitution.
That doesn't say much about whether, in the context of a different law
with different evidence, the law in question might violate a different
(statutory) standard. Indiana's ID law wasn't shown to violate the
Constitution. That doesn't say much about whether the same law or a
different law would have a statutorily retrogressive effect in a
different jurisdiction.
Put differently, nothing about the /Crawford/ opinion addressed whether
Indiana's law would or would not have been precleared; Supreme Court
approval in that case is not approval of a practice generally, but
application of a particular test to particular evidence. Supreme Court
approval in Indiana v. DOJ disapproval in South Carolina is an
apples-to-oranges comparison.
Which means, actually, that the Georgia case might now work against
South Carolina's argument. Georgia's ID law was (controversially)
precleared in 2005. South Carolina's was not. That suggests that if
South Carolina is complaining about unequal treatment, then the
complaint is traced not to whether a state is subject to preclearance or
not, but to the specific retrogressive effect on the ground of specific
ID provisions in specific contexts.
Justin
On 2/7/2012 1:40 PM, Scarberry, Mark wrote:
>
> Sam's analysis is persuasive.
>
> I wonder, though, whether there is another approach. One of the
> problems that led to adoption of the VRA (if I remember correctly) was
> adoption by covered jurisdictions of novel schemes to disenfranchise
> minority voters. Practices that have been adopted somewhat widely in
> non-covered jurisdictions, and that have been upheld as
> nondiscriminatory in those jurisdictions, are not novel, and probably
> reflect nondiscriminatory purposes when adopted in covered
> jurisdictions. Automatic pre-approval of such practices, in the
> absence of evidence of discriminatory purpose or effect, would leave
> novel practices subject to more substantial pre-clearance scrutiny.
>
> It might also be appropriate to consider whether the practice proposed
> to be adopted in a covered jurisdiction provides for discretion in its
> application. Literacy tests, for example, were not just objectionable
> because of their general disenfranchisement of illiterate persons, but
> also because the discretion given to officials in applying literacy
> tests could be used (and was used) to discriminate against black
> voters (as was predicted by members of the Reconstruction Congress in
> their rejection of literacy requirements for voters in local DC
> elections). If the ability of officials to exercise discretion in
> using non-novel practices were taken into account, then even practices
> like occasional moving of polling places could be subject to the
> current preclearance standards.
>
> My apologies if these points are too obvious or have already been
> made, either on this list or in the literature.
>
> Mark
>
> Mark S. Scarberry
>
> Pepperdine Univ. School of Law
>
> Malibu, CA 90263
>
> (310)506-4667
>
> *From:*law-election-bounces at department-lists.uci.edu
> [mailto:law-election-bounces at department-lists.uci.edu] *On Behalf Of
> *Samuel Bagenstos
> *Sent:* Tuesday, February 07, 2012 1:18 PM
> *To:* Rick Hasen
> *Cc:* law-election at uci.edu
> *Subject:* Re: [EL] @TheRepLawyer, 2/7/12 12:43 PM
>
> Just a quick reaction to the complaint. Aren't paragraphs 35 and 36,
> which seem like the fulcrum, a bit too cute? They read:
>
> 35. This Court should adopt a reasonably permissible construction of
> Section 5 of the VRA that preclears South Carolina's voter photo
> identification requirements and thereby avoids the grave
> constitutional concerns recognized by the Supreme Court in Nw. Austin
> Util. Dist. No. 1 v. Holder, 557 U.S. 193 (2009). The Supreme Court
> has expressly upheld voter identification requirements in non-covered
> jurisdictions. See Crawford, 553 U.S. at 203 (opinion of Stevens, J.)
> (holding that Indiana's voter identification law was a "neutral,
> nondiscriminatory regulation of voting procedure"); id. at 204-05
> (Scalia, J., concurring in the judgment) (holding that the Indiana law
> was a "generally applicable, nondiscriminatory voting regulation").
> Yet South Carolina is barred from implementing an almost-identical
> law, solely because it is covered by Section 5---based on nearly
> 50-year-old evidence of discrimination that was remedied long ago.
>
> 36. If Section 5 of the VRA is interpreted to prohibit South
> Carolina's Act R54, it will create a situation in which similarly
> situated, but non-covered States may enact voting-fraud prevention
> legislation while covered States are barred from doing so. This would
> create the anomalous situation in which covered jurisdictions would be
> precluded from enacting legislation that the Supreme Court has found
> to be perfectly constitutional in a non-covered State. Such a reading
> of Section 5 of the VRA would raise serious constitutional concerns
> whether Section 5 of the VRA violates South Carolina's right to equal
> sovereignty and should be avoided.
>
> As an analytic matter, paragraph 36 does no more than restate
> /Northwest Austin -- /which expressly declined to decide any
> constitutional question -- no? The whole point of legislation that
> applies to only some states is that it will sometimes make conduct
> unlawful in those states that would be lawful in others. /Northwest
> Austin/ said that's what raises serious constitutional concerns. But
> the remedy can't be to "interpret[]" or "constru[e]" Section 5 so that
> it never creates the situation in which conduct is unlawful in covered
> states when it is lawful in others. To do so is to *effectively*
> decide that Section 5 is unconstitutional without going through the
> necessary analysis -- or having the guts -- to actually come out and
> say the statute is unconstitutional.
>
> Samuel R. Bagenstos
>
> Professor of Law
>
> University of Michigan Law School
>
> 625 S. State St.
>
> Ann Arbor, MI 48109
>
> sambagen at umich.edu <mailto:sambagen at umich.edu>
>
> http://web.law.umich.edu/_FacultyBioPage/facultybiopagenew.asp?ID=411
>
> http://disabilitylaw.blogspot.com/
>
>
>
> On Feb 7, 2012, at 3:48 PM, Rick Hasen wrote:
>
>
>
> *RNLA (@TheRepLawyer <https://twitter.com/TheRepLawyer>)*
> 2/7/12 12:43 PM
> <https://twitter.com/thereplawyer/status/166985488266301440>
> Text of South Carolina #voterID
> <http://search.twitter.com/search?q=#voterID> complaint
> rnla.org/Blogs/blogs/pu... <http://t.co/eFNbaraD>
>
>
>
> Rick Hasen
>
> Sent from my iPhone. Please excuse typos.
>
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--
Justin Levitt
Associate Professor of Law
Loyola Law School | Los Angeles
919 Albany St.
Los Angeles, CA 90015
213-736-7417
justin.levitt at lls.edu
ssrn.com/author=698321
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