[EL] The Voting Rights Act and Congruence & Proportionality (in response to Derfner and Hebert)

Thu Jun 13 00:24:00 PDT 2013

I  haven't been following the Shelby County case as carefully as most list members probably have been. My guess is that everything I'm going to say here has been said (or that there are holes in this reasoning that others have already exposed). And this may also be too obvious a rejoinder to the post by Armand Derfner and Gerry Hebert for it to need to be said. But:
It has always seemed to me that congruence & proportionality deal with how much of a "hedge," so to speak, Congress can put around a constitutional right, so as to remedy violations that may be happening but that may be difficult to prove, or to deter such violations. One might argue, for example, that states and municipalities that burden religion without a particularly good reason for doing so may be intentionally burdening it in a non-neutral way, in violation of the Free Ex. Clause, even as the Court limited it in Smith. But that may be hard to prove in any particular case. So RFRA could be seen as an attempt to remedy likely violations of the Free Exercise Clause that otherwise would go unremedied (or to deter them). But it swept too broadly. It applied a standard that was not required by the Free Exercise Clause (of course as applied to the states by way of the 14th Am.), and that was (1) not proportional to the degree to which actual violations were going unremedied (note, if I remember correctly, the Court's reliance on the absence of much in the way of evidence of such violations), and (2) not designed and relatively well-tailored to deal with the actual unremedied violations or to deter them, so as to be congruent to Free Exercise rights as explicated by the Court in Smith. Contrast RLUIPA, in which there was a record (whether you believe it was an accurate record or not) of use of facially neutral land use regulations to hinder religious activities in a non-neutral way, and use of other regulations or discretionary powers to prevent prisoners and other institutionalized persons from exercising their religion.
As applied to the Voting Rights Act, this would lead us to ask:
(1) Is the degree of intrusiveness on the activities of the states and municipalities in running their elections proportional to the level of actual violations of equal protection under the 14th Am., or of denials of the right to vote on account of race or color under the 15th Am. (that is, the level of actual violations that would otherwise be unremedied)?  I realize that this is a bit like comparing apples and oranges (or, "Is the sky more blue than sugar is sweet?"), but some comparison of the seriousness of the actual violations that will not otherwise be deterred or remedied vs. the seriousness of the "enforcement" steps would seem to be required. (I put "enforcement" in quotes because the issue here is whether Congress is acting to enforce constitutional rights or doing something else.)
(2) Has Congress, in requiring states and municipalities to take actions that would not otherwise be mandated by the 14th or 15th Amendments (or to refrain from actions that are not otherwise prohibited), designed its regulation so as to get at the unremedied actual violations, in a way that is relatively well-suited to doing so?
If the answer to either of those questions is "no," then Congress is imposing obligations on states and municipalities beyond that which the Amendments require and without a sufficient relationship to what they require for imposition of those obligations to be enforcement of the Amendments.
I'm not a fan of the Boerne case, which I think limited Congress's powers too much. The 14th and 15th amendments were, if I understand the history correctly, designed in part to confer power on Congress as against the Supreme Court - power to overcome the Supreme Court's resistance to measures that would the protect the rights of the newly-freed African Americans. But the Court nevertheless has decided to impose its "proportional & congruent" test to see whether Congress really is enforcing rights or is doing something else.
If Congress says that a county can't move a polling place across the street without approval from DOJ or the federal courts, Congress is placing a barrier in the way of the county taking an action that likely does not violate either the 14th Amendment or the 15th Amendment. If Congress otherwise does not have power to erect such a barrier (but see, if a congressional election is involved, Art. I, sec. 4, cl. 1), then someone has to decide whether the barrier "enforce[s]" the provisions of one or both of the amendments. The Court has taken for itself the power to decide that question, and it has, as far as I can see, decided to use a "proportional & congruent" test to decide it.
Looking at this as a matter of legal realism, it is pretty clear that the Supreme Court thought it had to push back against Congress with respect to the RFRA. As I tell my students, with apologies to Jim Croce, "You don't tug on Superman's cape, you don't spit into the wind, you don't pull the mask off that old Lone Ranger, and you don't mess around with" the Supreme Court. But the mechanism the Court used was the "proportional & congruent" test. It seems that it would apply here, as well, even when it doesn't seem that the Congress is giving the Court the back of its hand.
I don't know whether the test is met. It seems that there is evidence of continued attempts to violate voting rights, and the geographical scope of the preclearance requirement may be sufficiently related to the likelihood of violations in various places. To the extent that there is substantial evidence of violations by way of such apparently small changes as moving of polling places small distances, then the preclearance requirements may be proportional (in the sense that the seriousness of the violations justifies intrusive regulation to remedy or deter violations that otherwise would be unremedied or undeterred)  and congruent (in the sense that the preclearance requirements are designed to get at those unremedied violations in a somewhat tailored way, both in term of the geographical coverage and the likelihood that the regulations will prevent or remedy those violations).
Mark

Mark S. Scarberry
Professor of Law
Pepperdine Univ. School of Law

...
Derfner and Hebert: The Voting Rights Act: Does the City of Boerne case or the "congruence and proportionality" test have anything to do with the Voting Rights Act?<http://electionlawblog.org/?p=51525>
Posted on June 12, 2013 8:37 am<http://electionlawblog.org/?p=51525> by Rick Hasen<http://electionlawblog.org/?author=3>

Armand Derfner and Gerry Hebert have written this guest post<http://electionlawblog.org/wp-content/uploads/Shelby-County-blog-post-final.pdf> (available as a pdf) for ELB, which begins:

Much of the debate in the pending Shelby County case centers on whether the remedy in Section 5 of the Voting Rights Act is "congruent and proportional" to the evidence of violations, as the Supreme Court first began requiring in 1997 in City of Boerne v. Flores. However, simply reading City of Boerne and the cases following it suggests that this is not the right test for evaluating the constitutionality of Section 5, and that applying it would be wholly without precedent.
That may surprise some people who believe - mistakenly - that the Supreme Court has already held that Section 5 must meet a test of "congruence and proportionality." One such surprised person would be Chief Justice Roberts, who thought (Tr. Oral Arg. 56) the Court applied that test in the 2009 case of N.W. Austin MUD v. Holder. One party in that case did say that test should be applied, but the Court specifically said it wouldn't address the issue and decided the case on other grounds
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Posted in Supreme Court<http://electionlawblog.org/?cat=29>, Voting Rights Act<http://electionlawblog.org/?cat=15> | Comments Off

--

Rick Hasen

Chancellor's Professor of Law and Political Science

UC Irvine School of Law

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rhasen at law.uci.edu<mailto:rhasen at law.uci.edu>

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