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

Fri Jul 19 05:51:53 PDT 2013

I examined updating the participation formula in:

Michael P. McDonald. 2006. "Who's Covered?  Section 4 Coverage Formula and Bailout."in The Future of the Voting Rights Act, David Epstein, Richard H. Pildes, Rodolfo O. de la Garza, and Sharyn O'Halloran, eds.  New York, NY: Russell Sage Publications.

============
Dr. Michael P. McDonald
Associate Professor
George Mason University
4400 University Drive - 3F4
Fairfax, VA 22030-4444

phone:   703-993-4191 (office)
e-mail:  mmcdon at gmu.edu               
web:     http://elections.gmu.edu
twitter: @ElectProject

From: law-election-bounces at department-lists.uci.edu [mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of JBoppjr at aol.com
Sent: Friday, July 19, 2013 7:33 AM
To: rhasen at law.uci.edu; mpoweru4 at gmail.com
Cc: law-election at uci.edu
Subject: Re: [EL] A test of seriousness for those who say that Section 2 is sufficient

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] 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, "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

-- 
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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