[EL] thoughts on today's oral argument

Wed Feb 27 12:51:04 PST 2013

http://electionlaw2.blogspot.com/2013/02/no-hope-reading-tea-leaves-in-voting.html

[posted to backup site until ELB is back]

  No Hope: Reading the Tea Leaves in the Voting Rights Case
  <http://electionlaw2.blogspot.com/2013/02/no-hope-reading-tea-leaves-in-voting.html>

Yes, it is true that most of us (including me) predicted the Supreme 
Court would strike down section 5 of the Voting Rights Act back in 2009 
in the NAMUDNO case 
<http://www.law.cornell.edu/supct/html/08-322.ZS.html>.  In that case, 
however, the Court punted, with a serious warning to Congress (not 
heeded to fix the Act).  And we all remember Jeffrey Toobin running to 
CNN after the oral argument in the health care case to predict it would 
fall.  It didn't, as Chief Justice Roberts blinked.  But I've read the 
transcript 
<http://www.supremecourt.gov/oral_arguments/argument_transcripts/12-96.pdf> 
from today's oral argument and I have no hope that the Voting Rights Act 
will continue in its current form after the Supreme Court is done with 
it in the Shelby County case.

So why will things be different this time?

First, there's the issue of respect for the Supreme Court. In the 
conservative Justices' minds, there seems no doubt that the Court is 
miffed that Congress didn't fix the Act's (in their view) outdated 
coverage formula after /NAMUDNO/. Justice Kennedy seems to think the 
reason Congress didn't update in the first place is that they didn't 
want to take the time or were too lazy. That's not it at all---it is 
that it is hard to come up with a politically acceptable new coverage 
formula which would pass in the current Congress.  (Justice Scalia for 
his part believes that simply overturning the VRA would be a radioactive 
move for politicians, something I believe is no longer true---witness 
Rick Perry dissing the Voting Rights Act section 5 during a Republican 
presidential debate and getting nary a mention.)  Congress had four 
years to react to /NAMUDNO /and did nothing.

Second, the real action here in this case is with Chief Justice Roberts 
or Justice Kennedy. (Alito and Scalia expressed clear hostility to the 
law, and Thomas already in /NAMUDNO/ said it was unconstitutional.) The 
thought that the Chief Justice would blink (or be a "stateman") not once 
(in /NAMUDNO/), not twice (in the health care case), but thrice in four 
years seems unbelievable. And this is Roberts' signature issue.  
Remember, he's the Justice who said that it is "a sordid business" to 
divvy people up by race, and that "the way to stop discriminating on the 
basis of race is to stop discriminating on the basis of race." Since he 
was in the Reagan administration he's supported a weakened Voting Rights 
Act.  And now he's given Congress time to fix the problem and they haven't.

And that leaves Justice Kennedy.  Liberals always pin their hopes on 
him, but they are usually disappointed (outside the context of social 
issues such as (sometimes) abortion and gay rights). But he's been very 
hostile to the VRA and very strong on federalism and the sovereignty and 
dignity of states. One might say that is a signature issue for him. 
Reading his questions at oral argument, he is clearly troubled by the 
Act, and believes it is outdated (claiming that the Marshall Plan was 
great for then, but this is now).  Justice Kennedy seems to believe, 
wrongly in my view, that section 2 and the use of preliminary 
injunctions, could do the same work as section 5.  In a future post I'll 
explain why this is wrong (the burden of proof is different, the 
substantive standard is different, and the threat of section 2 
litigation is not the same bargaining chip 
<http://www.slate.com/articles/news_and_politics/jurisprudence/2013/01/voting_rights_act_what_s_lost_if_the_supreme_court_kills_it.html>as 
Section 5 is).

The one area of hope which some observers see from Justice Kennedy in 
today's oral argument is the suggestion that even if the Act is not 
constitutional as to some covered jurisdictions, Alabama would be 
covered under any provision of the Act. I think people are overreading 
this exchange. Justice Kennedy did not seem convinced---it seems more 
likely he would buy Justice Scalia's point that if Congress wants to 
cover Alabama, let it pass a statute covering Alabama and then justify it.

Let me be clear. If Justice Kennedy or the Chief want to use this as a 
way to get around a finding of unconstitutionality they clearly could. 
After all, the Justices in /NAMUDNO/ all (aside from Thomas) engaged in 
a disingenuous act of statutory interpretation 
<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1436669> to avoid 
striking down the Act last time. But this time what is different is that 
I don't see Kennedy or the Chief having any appetite to do so.

Posted just now by Rick Hasen 
<https://plus.google.com/104025824362826279249>

-- 
Rick Hasen
Chancellor's Professor of Law and Political Science
UC Irvine School of Law
401 E. Peltason Dr., Suite 1000
Irvine, CA 92697-8000
949.824.3072 - office
949.824.0495 - fax
rhasen at law.uci.edu
http://law.uci.edu/faculty/page1_r_hasen.html
http://electionlawblog.org

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