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

[Rick Hasen]

Let's try to avoid ad hominem attacks on the list.
Thanks.

Rick

On 7/18/13 12:28 PM, Legal Works of Marc Greidinger wrote:
>
> In my humble opinion, all that is needed to determine whether such 
> opinions are political talking points is whether the last names von 
> Spakovsky and/or Adams are attached to them.
>
> Regards,
>
> Marc Greidinger
>
> Outside Counsel, Fairfax County Democratic Committee
>
> Springfield, VA
>
> *From:*law-election-bounces at department-lists.uci.edu 
> [mailto:law-election-bounces at department-lists.uci.edu] *On Behalf Of 
> *Samuel Bagenstos
> *Sent:* Wednesday, July 17, 2013 9:02 PM
> *To:* Rick Hasen
> *Cc:* 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 <mailto:sambagen at umich.edu>
>
> http://www.law.umich.edu/FacultyBio/Pages/FacultyBio.aspx?FacID=sambagen
>
> http://disabilitylaw.blogspot.com/
>
> Twitter: @sbagen
>

-- 
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
hhttp://www.law.uci.edu/faculty/full-time/hasen/
http://electionlawblog.org

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