[EL] Sections 4 and 5 of the VRA are artifacts of US history, not all-purpose anti-discrimination measures

[Chad Dunn]

I will go out on a limb here and express an opinion I have not seen much
here on the listserv.  As I sat and watched the argument yesterday I came to
the conclusion that Section 5 and its coverage formula would survive this
challenge.  The questions by the four so called liberal justices concerning
standing were quite damning and left unanswered.  The vacuum created by
these initial unanswered questions was so uncomfortable that it even lead
Justice Kennedy to re-phrase it and ask the question for himself again.
Justice Kennedy similarly could not get an answer.  The basic question is
this:  If Alabama would be covered under any formula Congress could adopt,
then how has Alabama been harmed by that same coverage formula?  No harm no
injury, right?  Alabama had no answer to the question and it is not
particularly rare or difficult for the Court to require a showing of harm to
support a case.  If the Court takes this approach to dispose of the case,
then jurisdictions one after another can come forward and demonstrate how
they were inappropriately included.  As the General argued, they must first
seek bail-out to have standing to bring such a claim.  Seven Justices voted
only a little while ago to avoid this constitutional question in a case
that, in my opinion, better presented the issue.  I think it is likely five
of those Justices will do so again in this, a case with Plaintiffs who lack
standing.  It is true that when the questions turned to the constitutional
argument, there is no doubt a majority seriously questioned Section 5.  I am
not sure this Court will reach that question however.

My last rationale for my belief that Section 5 will survive rests in the
much quoted soliloquy offered by Justice Scalia toward the end.  I think it
is dangerous to read motives into the action and speech of others.  But,
since Justice Scalia was comfortable questioning the motives behind the
votes of 98 U.S. Senators, I will try my shot.  To see the argument in
person, I was struck by the passion behind (some might say anger) and the
energy of the delivery to Justice Scalia's long statement on racial
entitlement.  My experience with appellate courts is that an impassioned
judge/justice who has the votes for his/her position often says little.  It
is when the passionate Judge is short on votes that loud protests are heard.

Now, having said all this, predicting the Supreme Court is a fool's errand.
My thoughts on the health care argument were absolutely incorrect.  Thus, I
stand ready to eat my words.  I chose to lay out this position here because
I thought there was another angle on this argument I had not seen presented
yet.

-----Original Message-----
From: law-election-bounces at department-lists.uci.edu
[mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of James
Blacksher
Sent: Thursday, February 28, 2013 2:22 PM
To: Rick Hasen
Cc: law-election at uci.edu
Subject: [EL] Sections 4 and 5 of the VRA are artifacts of US history, not
all-purpose anti-discrimination measures

Rick Pildes is fundamentally mistaken about the purpose of Sections 4 and 5
of the Voting Rights Act.  They were never intended to place preclearance
requirements on states and jurisdictions that were engaging in measurably
more voting discrimination than were other states and jurisdictions.  As
South Carolina v. Katzenbach explained, the jurisdictions the Section 4
formula was designed to cover were the former secessionist states who after
the Civil War embedded white supremacy and black disfranchisement in their
constitutions, statutes, and official political cultures.  These were the
institutional conditions that had proved impervious to ordinary federal
enforcement measures.  Congress did not find – either in 1965 or in 2006 –
that whites in the South were more racist (whatever that means, Mr. Chief
Justice) than whites elsewhere in the US.  Indeed, as we know, the Fifteenth
Amendment was enacted to enfranchise blacks in the North.
Freedmen in the South were already enfranchised by federal statute.

So the question before the Court in Shelby County v. Holder should be
whether Congress had reason to conclude that the institutional policies and
practices of the Southern states that historically were designed to exclude
or to minimize African Americans’ participation in the political process
have been eliminated or reformed to the extent practicable and whether they
are not likely to return once preclearance of voting changes is no longer
required.  The comparison of incidents of voting discrimination in the South
and voting discrimination elsewhere has no relevance to the question whether
Sections 4 and 5 are still appropriate measures for enforcing the Fifteenth
Amendment.

Jim Blacksher


>
> The following is a guest post from *Rick Pildes*:
>
>     In light of today’s oral argument concerning the constitutionality
>     of Section 5 of the VRA, I remain deeply disappointed that Congress
>     did nothing in 2006 either to update the scope of Section 5′s
>     coverage or to explain why it continued to make sense to continue to
>     cover all the areas (and only the areas) first put under Section 5′s
>     unique regime in the 1960s (or, at latest, 1975).  Congress’ failure
>     to do so now appears likely to be the basis for a Supreme Court
>     decision that will hold Section 5 unconstitutional, to the extent
>     oral argument foreshadows outcomes.
>
>     The House did not even consider evidence comparing race and voting
>     issues in the covered and non-covered jurisdictions; it did not seem
>     to consider these comparisons necessary or relevant.  The Senate
>     Judiciary Committee was certainly told in 2006 that the failure to
>     update the Act would put it in constitutional jeopardy.  But even
>     there, the only major piece of evidence comparing the covered and
>     non-covered jurisdictions before the Senate was “the Katz study,”
>
> <http://sblog.s3.amazonaws.com/wp-content/uploads/2012/09/Katz-cite.png>
>       not designed for this purpose in the first place, and which
>     subsequent academic work (here
>     <http://papers.ssrn.com/sol3/papers.cfm?abstract_id=977271>, here
>     <http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1142986> and
>     here <http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1260998>)
>     has shown does not provide significant evidence that distinguishes
>     between the covered and non-covered areas.  To be sure, meaningful
>     distinctions might exist between covered and non-covered areas, or
>     between some of the covered areas and those not covered.  But the
>     record before Congress was simply not constructed with this
>     comparative question very much in mind, let alone with that question
>     being a central focus of the congressional process.
>
>     So why did Congress not look in more detail at what was going on in
>     both the covered and non-covered areas and modernize Section 5,
>     instead of simply extending Section 5 for another 25 years unchanged
>     in coverage?
>
>     The actual answer is realpolitik:  it was politically easier for
>     Congress to simply reaffirm the status quo, rather than confront the
>     difficult policy and political questions posed by making judgments
>     about where problems of race and voting rights were most acute today
>     (are Ohio and Pennsylvania similar today to Virginia and North
>     Carolina?).  As I wrote at the time in the /Yale Law
>     Journal/ online, in a short essay
>
> <http://http/yalelawjournal.org/the-yale-law-journal-pocket-part/election-law/political-avoidance,-constitutional-theory,-and-the-vra/>
> called
>     /Political Avoidance, Constitutional Theory, and the Voting Rights
>     Act/, by failing to update the Act:
>
>     /Congress has, whether intentionally or not, in effect thrown down a
>     gauntlet to the Court. The renewed VRA . . . makes no concessions to
>     the[Court's] post-1982 /Boerne/ doctrines nor to the social,
>     political, and institutional changes since 1982. . . .  Section 5
>     stands at the intersection of race-conscious policymaking and
>     federalism, the latter in the unique context of regionally specific
>     legislation; in each of these domains, the Court has insisted  that
>     legislation rest on an adequately documented
>     foundation. [R]ealpolitik provides the best explanation for why
>     Congress left the VRA’s essential structure and coverage unchanged.
>     The question waiting in the wings is whether realpolitik provides an
>     adequate justification when the Supreme Court confronts the
>     inevitable constitutional challenge to the power of Congress to
>     reenact the distinct coverage regime of section 5 for another
>     twenty-five years./
>
>     Similarly, Professor Nate Persily, writing
>
> <http://yalelawjournal.org/the-yale-law-journal-pocket-part/election-law/the-promise-and-pitfalls-of-the-new-voting-rights-act-%28vra%29/>about
>     the legislative process in 2006, concluded that any debate “about
>     the purpose and utility of section 5 itself . . . likely would have
>     led to the complete unraveling of the bill.”
>
>     If today’s argument accurately predicts the outcome, it seems to
>     suggest that realpolitik is going to be an insufficient explanation
>     to meet a majority of the Court’s judgment about what constitutional
>     doctrine requires in this area.
>
>     Rick Pildes
>

--
James U. Blacksher
P.O. Box 636
Birmingham, AL 35201
phone: 205-591-7238
fax: 866-845-4395
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