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

Fri Jul 19 04:33:11 PDT 2013

I was wondering if anyone has proposed criteria to determine what  
jurisdictions would be covered by Section 4?  I see this as a  potentionally 
insurmountable problem which needs to be addressed to revive  Section 5.  Jim Bopp

In a message dated 7/18/2013 3:30:22 P.M. Eastern Daylight Time,  
rhasen at law.uci.edu writes:

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)   
[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_ (mailto: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_ (mailto:rhasen at law.uci.edu) 

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

_http://electionlawblog.org_ (http://electionlawblog.org/) 

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