[EL] “Voting Law Decision Could Sharply Limit Scrutiny of Rules”

[Derek Muller]

Rick, I'm not convinced that this Section 2 point made by Justice Kennedy
is the one that's more salient in the analysis. Granted, Justice Kennedy
raised the issue and noted "it's not clear to me that there's that much
difference in a Section 2 suit now and preclearance," but followed with "I
may be wrong about that. I don't have statistics for it. That's why we're
asking." And Mr. Verrilli followed with a less-than-satisfactory answer (at
least, I imagine, from Justice Kennedy's perspective), that petitioners
"haven't made any effort to" demonstrate that point, and that he didn't
"have any statistics for you." I think there's a strong case to be made
(and has been made by some) that Section 2 "plus" is not "as good as"
Section 5, but Justice Kennedy was, I think, at least genuinely inquiring
(or, I'm inclined to give him the benefit of the doubt that it was a
genuine inquiry), and Mr. Verrilli did not have a strong retort (as right
as he might have been that petitioners failed to present adequate evidence).

But, that aspect aside, there are repeated instances in which Justice
Kennedy articulated the point that Section 2's bail-in mechanism would
provide a much more credible basis for Section 5 preclearance. And this is
consistent with the theme of the case--that is, the preclearance formula in
Section 4 is improperly tailored; that it will be struck down for a lack of
findings by Congress that it was necessary; but, that the bail-in mechanism
of Section 2 via Section 3, which requires individualized litigation by the
Government and individualized findings of fact before preclearance applies,
etc., would work quite well. Justice Kennedy twice mentions Section 3 in
the context of Section 2 (Tr. at 24, 54); and, in fact, he's the only one
who raises Section 3 in the transcript (at least, by my search function).

So, perhaps Justice Kennedy (and a majority of the Court) will rely on
Section 2 as an adequate basis to enforce the protections otherwise
afforded by Section 5, but I think the Court would be more inclined to
focus on the coverage formula, and, in doing so, would be more inclined to
rely on Section 2 and Section 3 as an alternative basis for a *coverage
formula*. While it may also acknowledge that Section 2 "plus" provides
remedies, shall we say, "comparable to" (if not "as good as") the existing
Section 5 in covered jurisdictions, I don't think that's the thrust of
Justice Kennedy's concern. But, again, perhaps I just have a more generous
reading of the transcript.

Derek

Derek T. Muller

Associate Professor of Law

Pepperdine University School of Law

24255 Pacific Coast Hwy.

Malibu, CA 90263

+1 310-506-7058

SSRN Author Page: http://ssrn.com/author=464341



On Thu, Feb 28, 2013 at 8:05 AM, Rick Hasen <rhasen at law.uci.edu> wrote:

>
>  “Voting Law Decision Could Sharply Limit Scrutiny of Rules”<http://electionlawblog.org/?p=47852>
> Posted on February 28, 2013 8:00 am <http://electionlawblog.org/?p=47852>
> by Rick Hasen <http://electionlawblog.org/?author=3>
>
> Must-read Charlie Savage NYT report on the difference between sections 2
> and 5 of the Voting Rights Act<http://www.nytimes.com/2013/03/01/us/politics/voting-law-decision-could-sharply-limit-scrutiny-of-rules.html?hp>begins:
>
> If the Supreme Court strikes down or otherwise guts a centerpiece of the
> Voting Rights Act, there will be far less scrutiny of thousands of
> decisions each year about redrawing district lines, moving or closing
> polling places, changing voting hours or imposing voter identification
> requirements in areas that have a history of disenfranchising minority
> voters, voting law experts say.
>
> A close look at the law demonstrates how a series of seemingly technical
> details amount to what is essentially a safeguard against violations in
> those states and regions covered by the law — most of which are in the
> South.
>
> It also shows how that very bulwark comes at the cost of sharply tilting
> the playing field against those areas in ways that several
> conservative-leaning Supreme Court justices expressed alarm about during
> arguments on Wednesday.
>
> The legal issue turns on two main parts of the act: Section Five, which
> covers jurisdictions with a history of discrimination, and Section Two,
> which covers the entire country. Both sections outlaw rules that
> intentionally discriminate against or otherwise disproportionately harm
> minority voters. Section Two would remain in effect even if the court
> strikes down Section Five.
>
> But reliance only on Section Two would mean a crucial difference in how
> hard it may be to block a change in voting rules in an area that is
> currently covered by Section Five. Those jurisdictions, because of their
> history of discrimination, must prove that any proposed change would not
> make minority voters worse off.
>
> I hope to write more about this soon, because Justice Kennedy seems to
> mistakenly believe that section 2 liability plus preliminary injunctions
> would be just as good as section 5 liability.
>  [image: Share]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D47852&title=%E2%80%9CVoting%20Law%20Decision%20Could%20Sharply%20Limit%20Scrutiny%20of%20Rules%E2%80%9D&description=>
>   Posted in Supreme Court <http://electionlawblog.org/?cat=29>, Voting
> Rights Act <http://electionlawblog.org/?cat=15> | Comments Off
>
>
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