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

[Ellen Katz]

Congress already enacted something akin to what I understand Mike to be
suggesting when it reversed Bossier Parish II in 2006.  Suffice it to say,
the Shelby County majority wasn't impressed.


On Thu, Jul 18, 2013 at 12:25 AM, Michael Dimino
<mrdimino at mail.widener.edu>wrote:

> 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<http://www.volokh.com/2013/07/16/what-will-happen-to-section-two-of-the-voting-rights-act/>,
> "sweeps far more broadly" than does the Constitution itself, and that, as
> Rick Hasen points out <http://electionlawblog.org/?p=53071>, "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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>



-- 
Ellen D. Katz
Ralph W. Aigler Professor of Law
University of Michigan Law School
625 S. State Street
Ann Arbor, MI 48109
(734) 647-6241

Online papers:  http://ssrn.com/author=265855
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