[EL] “Voting Law Decision Could Sharply Limit Scrutiny of Rules”
Rick Hasen
rhasen at law.uci.edu
Thu Feb 28 16:11:39 PST 2013
I think that could well be at least part of Justice Kennedy's thinking.
But the repeated references to "preliminary injunctions" under section 2
show that this is part of what's at stake in his thinking too. I'm
planning on writing more about it. But I do think that you are
certainly right that this is at least part of the story.
On 2/28/13 1:42 PM, Derek Muller wrote:
> 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
> <mailto: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.
>
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>
>
--
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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