[EL] full text of my SCOTUSBlog post`
Rick Hasen
hasenr at gmail.com
Tue Jun 25 19:58:28 PDT 2013
The curious disappearance of Boerne and the future jurisprudence of
voting rights and race <http://electionlawblog.org/?p=52148>
Posted on June 25, 2013 7:17 pm <http://electionlawblog.org/?p=52148> by
Rick Hasen <http://electionlawblog.org/?author=3>
[Cross-posted from SCOTUSBlog
<http://www.scotusblog.com/2013/06/the-curious-disappearance-of-boerne-and-the-future-jurisprudence-of-voting-rights-and-race/>]
*The curious disappearance of /Boerne/ and the future jurisprudence of
voting rights and race*
/Richard L. Hasen publishes Election Law Blog and is //Chancellor's
Professor of Law and Political Science at UC Irvine. /
A funny thing happened between the Supreme Court's 2009 opinion in
/NAMUDNO v. Holder
<http://www.bloomberglaw.com/public/document/Northwest_Austin_Mun_Utility_Dist_No_One_v_Holder_129_S_Ct_2504_1>/,
sidestepping the question of the constitutionality of Section 5 of the
Voting Rights Act, and the Court's new /Shelby County /decision
effectively <http://t.co/dWN4s24S00> striking it down on a five-to-four
basis: the Court majority failed to expressly resolve an open question
of how to scrutinize Congress's power to enforce the Fifteenth amendment
in voting rights cases. It is not clear what that means for challenges
to other voting and civil rights provisions going forward, but the Court
for now seems to have foreclosed greater deference for voting decisions
under Congress's Fifteenth amendment powers. That could spell trouble
for Section 2 of the Voting Rights Act, Section 203 of the Act (the
language provisions), and other laws aimed at preventing race
discrimination in voting.
In /South Carolina v. Katzenbach
<http://www.bloomberglaw.com/public/document/South_Carolina_v_Katzenbach_383_US_301_86_S_Ct_803_15_L_Ed_2d_769/3>/,
a case from the 1960s initially upholding the Voting Rights Act Section
5, the Court endorsed a "rational basis" standard of review which gave
Congress broad Fifteenth Amendment powers to pass anti-discrimination
voting laws. That's no surprise: the whole point of the Fifteenth
Amendment was to stop racial discrimination in voting and it was going
to take the federal government to bring the former Confederacy into line.
But in/NAMUDNO/, the Court raised the possibility that a line of
Fourteenth Amendment power cases beginning with /City of Boerne v.
Flores
<http://www.bloomberglaw.com/public/document/City_of_Boerne_v_Flores_521_US_507_117_S_Ct_2157_138_L_Ed_2d_624_/3>
/could apply now to review of voting rights. The /Boerne/ test is much
tougher on Congress, requiring that it pass laws burdening states only
when Congress demonstrates with admissible evidence (to the satisfaction
of the Court, not itself) that there is evidence of significant
unconstitutional conduct being undertaken by the states and that the
means Congress chooses to address it are "congruent and proportional" to
the constitutional violations.
Here's how the Court sidestepped the issue in /NAMUDNO/:
The parties do not agree on the standard to apply in deciding
whether, in light of the foregoing concerns, Congress exceeded its
Fifteenth Amendment
<http://www.law.cornell.edu/supct-cgi/get-const?amendmentxv>
enforcement power in extending the preclearance requirements. The
district argues that " '[t]here must be a congruence and
proportionality between the injury to be prevented or remedied and
the means adopted to that end,' " Brief for Appellant 31, quoting
/City of Boerne/ v. /Flores/, 521 U. S. 507
<http://www.law.cornell.edu/supct-cgi/get-us-cite?521+507>, 520
(1997) ; the Federal Government asserts that it is enough that the
legislation be a " 'rational means to effectuate the constitutional
prohibition,' " Brief for Federal Appellee 6, quoting /Katzenbach/,
/supra/, at 324. That question has been extensively briefed in this
case, but we need not resolve it. The Act's preclearance
requirements and its coverage formula raise serious constitutional
questions under either test.
Perhaps the biggest surprise of /Shelby County/ is that the majority
purported to ignore this /Boerne /issue. The majority does not even
/cite/ to /Boerne/ even though this has been a key issue involving the
constitutionality of Section 5 for years. (I first wrote about the
issue in 2005
<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=561241>, even before
the 2006 renewal.) Here's all that the Court has to say in /Shelby
County /on the standard of review, in its first footnote: "Both the
Fourteenth and Fifteenth Amendments were at issue in /Northwest Austin/
. . . and accordingly /Northwest Austin/ guides our review under both
Amendments in this case."
The failure to set the standard of review is no mere oversight by Chief
Justice Roberts. The footnote appears deliberately inscrutable: the
Court sidesteps an issue about the standard of review in Case 1, and in
Case 2 the Court endorses Case 1's analysis of the standard of review.
And the rest of the opinion is not helpful either: the equal federal
sovereignty analysis which the Court uses to kill Section 5 of the VRA
is a /Bush v. Gore/-like one-day-only ticket. Few other voting laws fit
this pattern (though one could imagine the language provisions of the
Voting Rights Act in Section 203 falling under this analysis).
I presume the Chief Justice obfuscated the standard of review in this
case as a time bomb <http://electionlawblog.org/?p=51773>: in a future
case he could cite to /NAMUDNO/ and /Shelby County /fn. 1 for the
proposition that the Court has held that the Fourteenth and Fifteenth
amendment standards are the same, and then bootstrapping the /Boerne/
standard into a Fifteenth Amendment case. Saying so directly would have
made today's controversial decision even more provocative than it is;
obfuscation better serves the Chief Justice's attempt to portray his
decision as an act of judicial modesty rather than a radical restricting
on Congress's power against the states (more on that in my op-ed for
/The/ /New York Times/). A future opinion can still look back on the
obscure footnote as having resolved a key issue. The time bomb explodes
<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1750398>.
If that prediction's right, then I expect to see new challenges to
Section 2 of the Voting Rights Act (which applies nationwide) and other
voting laws on grounds they exceed Congress's Fourteenth and Fifteenth
Amendment voting powers. (Watch as conservatives move the goalposts
here: a key argument against Section 5 was that it was not needed thanks
to Section 2. But now that Section 5 has fallen, I expect lawsuits to
next challenge the constitutionality of Section 2.)
How successful these new attacks on voting rights are likely to be
depends upon the future of the Court. Liberals have to hope that the
slow moving train of conservative jurisprudence will move slowly enough
to await the departure of Justice Kennedy or Justice Scalia
<http://www.slate.com/articles/news_and_politics/jurisprudence/2013/02/campaign_finance_reform_when_scalia_leaves_the_supreme_court.html>
during the administration of a Democratic president, at which point the
liberal Justices can turn the train around and rightly proclaim that
/Shelby County/ never expressly endorsed the tough /Boerne/ standard for
voting cases.
Posted in /Shelby County v. Holder
<http://www.scotusblog.com/case-files/cases/shelby-county-v-holder/>/,
Merits Cases <http://www.scotusblog.com/category/merits-cases/>, The
Court and the Voting Rights Act
<http://www.scotusblog.com/category/special-features/the-court-and-the-voting-rights-act/>
*Recommended Citation:* Rick Hasen, /The curious disappearance of
/Boerne/ and the future jurisprudence of voting rights and race/,
SCOTUSblog (Jun. 25, 2013, 7:10 PM),
http://www.scotusblog.com/2013/06/the-curious-disappearance-of-boerne-and-the-future-jurisprudence-of-voting-rights-and-race/
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Rick Hasen
hasenr at gmail.com
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