[EL] A test of seriousness for those who say that Section 2 is sufficient

[Michael Dimino]

Sam's points are well taken.  I'll add, for what it is worth, that Mr. Carvin similarly argued at the GW symposium last November that the Court should rule for Shelby County at least in part because preclearance is unnecessary given the existence of section 2 and its results test.



The long-term strategy of such an approach seemed to me questionable.  If the Court had rested its result on that logic, it would have been difficult for the Court in a future case to declare section 2 unconstitutional -- for the same reasons that seem to be the basis of Sam's message.



Given that the Court did not rely on such reasoning, however, it seems quite reasonable to speculate on the possibility that section 2 will be held unconstitutional.  Even if it is struck down, however, it would be possible to argue that milder forms of section 2 would do a good enough job of protecting against voting discrimination.  Even if the results test is unconstitutional, for example, placing the burden of proof on the state or local government in cases alleging intentional voting discrimination and adding resources to enable DOJ to bring more challenges alleging intentional discrimination might be alternatives bearing on the necessity for preclearance.








Original E-mail
>From :
Samuel Bagenstos [sambagen at umich.edu]

Date :
07/17/2013 09:02 PM

To :
Rick Hasen [rhasen at law.uci.edu]

CC :
"law-election at UCI.edu" [law-election at UCI.EDU]

Subject :
[EL] A test of seriousness for those who say that Section 2 is sufficient






In his testimony at today's Senate Judiciary Committee hearing, Michael Carvin argued that preclearance is unnecessary because Section 2, with its post-1982 "results test," provides sufficient protection against voting discrimination nationwide.  In their prepared testimony for tomorrow's House Judiciary Committee hearing, both Christian Adams and Hans von Spakovsky make versions of the same argument (though they give it less prominence than Carvin's prepared testimony did).  


I would like to offer a simple test for whether this is a serious, good-faith argument or just a political talking point.  Anyone who argues that Section 2's results test, applied nationwide, is sufficient to address today's problems of voting discrimination should have to answer the following two or three questions:


1.  In your view, is Section 2's results test constitutional?
2.  Do you predict that the Supreme Court, as currently constituted, will uphold Section 2's results test as constitutional?
3.  If the answer to question #2 is yes, why do you think the current Court, given the case law from Boerne through Shelby County, will uphold a statute that, in Will Baude's words, "sweeps far more broadly" than does the Constitution itself, and that, as Rick Hasen points out, "has no geographic or temporal limits"?


Unless an advocate of the Section-2-results-test-is-sufficient line is willing to give a clear and unqualified affirmative answer to questions #1 and #2, and can give a persuasive explanation in response to question #3, there is no reason to accept her position as a serious and good-faith argument instead of a political talking point.


Of course, even if the argument is serious and offered in good faith, it might be wrong.  I happen to think that even if Section 2's results test survives a constitutional challenge it is woefully insufficient as a replacement for preclearance.  That's a matter we can debate.  But to say that Section 2's results test is sufficient without being willing to say that the results test is constitutional, predict that the Court will uphold it as constitutional, and persuasively explain the basis for that prediction is to make the promise to the ear but break it to the hope.



Samuel R. Bagenstos
Professor of Law
University of Michigan Law School
625 S. State St.
Ann Arbor, MI  48109
sambagen at umich.edu

http://www.law.umich.edu/FacultyBio/Pages/FacultyBio.aspx?FacID=sambagen

http://disabilitylaw.blogspot.com/

Twitter: @sbagen













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