[EL] simple-minded question about Shelby County decision

[Scarberry, Mark]

I believe eight Justices joined the opinion in NAMUDNO. If I am reading that decision correctly, it treated Katzenbach in the way the CJ treats it in Shelby County. Here is an excerpt from NAMUDNO quoting key language from Katzenbach:

"The Act also differentiates between the States, despite our historic tradition that all the States enjoy 'equal sovereignty.' United States v. Louisiana, 363 U. S. 1, 16 (1960) (citing Lessee of Pollard v. Hagan, 3 How. 212, 223 (1845)); see also Texas v. White, 7 Wall. 700, 725-726 (1869). Distinctions can be justified in some cases. 'The doctrine of the equality of States . . . does not bar . . . remedies for local evils which have subsequently appeared.' Katzenbach, supra, at 328-329 (emphasis added [to the word 'local']). But a departure from the fundamental principle of equal sovereignty requires a showing that a statute's disparate geographic coverage is sufficiently related to the problem that it targets."

The analysis in Katzenbach, as eight justices seem to have understood it in NAMUDNO, is that states must be admitted on an equal basis, but if "local evils ... subsequently appear[]," they can be treated unequally. It may follow logically that when the local evils end or are no longer local (in the sense of being particularly present in a state so as to justify unequal treatment), then the equality norm comes back into force. That logic was the basis, it seems, for the eight justices agreeing in NAMUDNO that the unequal treatment of the states created a federalism concern. Note the use of the present tense ("is") in describing the Court's concern with whether "a statute's disparate geographic coverage is sufficiently related to the problem that it targets."

The coverage formula may still be sufficiently related to the problem of equal voting rights; list members have provided data suggesting that it is. But that's the question. It seems that eight Justices signed on to the principle that a sufficient relationship is needed, for states to be treated differently.

It is interesting, though, that Shelby County is not a state, and perhaps should not be able to assert the right of states to be treated equally. (I haven't looked carefully at the dissent; maybe it makes that point, or perhaps it was made in the briefs.)

Mark

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







From: law-election-bounces at department-lists.uci.edu [mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of Adam Bonin
Sent: Tuesday, June 25, 2013 3:05 PM
To: 'Jonathan Adler'; richardwinger at yahoo.com; law-election at uci.edu
Subject: Re: [EL] simple-minded question about Shelby County decision

I didn't realize that rational basis review now required the most current research and data.  I thought it was just that Congress just had to have some rational basis, not the most rational basis.

The underlying question to me regards the textual basis for the new Equal Dignity Clause, as the Chief Justice puts it:

Not only do States retain sovereignty under the Constitution, there is also a "fundamental principle of equal sovereignty" among the States. Northwest Austin, supra, at 203 (citing United States v. Louisiana, 363 U. S. 1, 16 (1960) ; Lessee of Pollard v. Hagan, 3 How. 212, 223 (1845); and Texas v. White, 7 Wall. 700, 725-726 (1869); emphasis added). Over a hundred years ago, this Court explained that our Nation "was and is a union of States, equal in power, dignity and authority." Coyle v. Smith, 221 U. S. 559, 567 (1911) . Indeed, "the constitutional equality of the States is essential to the harmonious operation of the scheme upon which the Republic was organized." Id., at 580. Coyle concerned the admission of new States, and Katzenbach rejected the notion that the principle operated as a bar on differential treatment outside that context. 383 U. S., at 328-329. At the same time, as we made clear in Northwest Austin, the fundamental principle of equal sovereignty remains highly pertinent in assessing subsequent disparate treatment of States. 557 U. S., at 203.

Here's what Katzenbach said:

[T]he Act intentionally confines these remedies to a small number of States and political subdivisions which, in most instances, were familiar to Congress by name. [n35] This, too, was a permissible method of dealing with the problem. Congress had learned that substantial voting discrimination presently occurs in certain sections of the country, and it knew no way of accurately forecasting whether the evil might spread elsewhere in the future. [n36] In acceptable legislative fashion, Congress chose to limit its attention to the geographic areas where immediate action seemed necessary. See McGowan v. Maryland, 366 U.S. 420, 427; Salsburg v. Maryland, 346 U.S. 545, 550-554. The doctrine of the equality of States, invoked by South Carolina, does not bar this approach, for that doctrine applies only to the terms [p329] upon which States are admitted to the Union, and not to the remedies for local evils which have subsequently appeared. See Coyle v. Smith, 221 U.S. 559, and cases cited therein.

As for NAMUDNO, the Chief just threw this notion out there, now embedded in the law: "But a departure from the fundamental principle of equal sovereignty requires a showing that a statute's disparate geographic coverage is sufficiently related to the problem that it targets."

>From where in the text and history of the Constitution this "sufficiently related" test come?

Adam "Dignity. Always dignity" Bonin
The Law Office of Adam C. Bonin
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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 Jonathan Adler
Sent: Tuesday, June 25, 2013 5:42 PM
To: richardwinger at yahoo.com<mailto:richardwinger at yahoo.com>; law-election at uci.edu<mailto:law-election at uci.edu>
Subject: Re: [EL] simple-minded question about Shelby County decision

I think this question misunderstands the premises underlying the majority opinion.  For the majority, the question is not whether a given constitutional provision compels this result.  Rather, the question is what provision of the Constitution authorizes this exercise of federal power.  Given that the 15th Amendment merely provides Congress with the power to "enforce" the Amendment's guarantees through "appropriate" legislation, the argument would be that Congress cannot be said to enforcing the Amendment's guarantees against present threats through "appropriate" legislation insofar as it has re-enacted a coverage formula based upon what was occurring 40-some years ago.

I should note that I don't know whether I agree with the majority opinion, as I don't feel I've studied either the 15th Amendment or the VRA enough to have a firm opinion on the question, but I think this is the best way to understand the majority's rationale (even if this is not quite how Roberts explained it).

JHA

------
Jonathan H. Adler
Johan Verheij Memorial Professor of Law
Director, Center for Business Law & Regulation
Case Western Reserve University School of Law
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Cleveland, OH 44106
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fax) 216-368-2086
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jha5 at case.edu<mailto:jha5 at case.edu>
http://www.jhadler.net<http://www.jhadler.net/>
SSRN: http://ssrn.com/author=183995


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<mailto:law-election-bounces at department-lists.uci.edu>] On Behalf Of Richard Winger
Sent: Tuesday, June 25, 2013 12:52 PM
To: law-election at uci.edu<mailto:law-election at uci.edu>
Subject: [EL] simple-minded question about Shelby County decision

I have only read today's decision once, and that was over an hour ago.  I could re-read it to answer my question, but I'm lazy and will ask the list.   What part of the US Constitution supports today's decision?

It can't be the 10th amendment, because the 15th amendment gives Congress authority to act against racial discrimination in voting.

It can't be the 14th amendment.  The equal protection clause applies to people, not states.

Today's decision seems to place the Court in the role of a super-legislature, not a court.  The court can't strike down a law without relying on some part of the US Constitution, so what part is it relying on?

Richard Winger
415-922-9779
PO Box 470296, San Francisco Ca 94147


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