[EL] The curious disappearance of Boerne and the future jurisprudence of voting rights and race : SCOTUSblog

[Lori A Ringhand]

Perhaps the problem is that the congruence and proportionality test does not map very well onto the Court's actual objection to the statute. The majority opinion doesn't turn on a determination that there are not underlying constitutional violations occurring in the covered jurisdictions, or that pre-clearance is not a c&p way to remedy or prevent such violations. Rather, the objection is that the statute does so selectively, without (as the court sees it) sufficient evidence that violations in the covered jurisdictions are worse than violations in uncovered jurisdictions. The problem, in other words, is not that Congress has tried to expand the scope of substantive protections of the 15th Amendment, but that its remedy is geographically selective in ways the Court finds inappropriate. 

Lori A. Ringhand
J. Alton Hosch Professor of Law
University of Georgia College of Law
Athens, GA 30601

ringhand at uga.edu
706 542 3876
http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=332414

________________________________________
From: law-election-bounces at department-lists.uci.edu [law-election-bounces at department-lists.uci.edu] on behalf of Pildes, Rick [pildesr at exchange.law.nyu.edu]
Sent: Wednesday, June 26, 2013 2:06 PM
To: Brian Landsberg; Justin Levitt; law-election at department-lists.uci.edu
Subject: Re: [EL] The curious disappearance of Boerne and the future jurisprudence of voting rights and race : SCOTUSblog

I don't understand Rick Hasen's point, or Justin's elaboration, regarding possible 14th/15th Amendment distinctions and Boerne.  The "congruence and proportionality" test is designed to enforce a boundary between Acts that expand the substantive scope of the 14th Amendent and those that provide remedies for violations of the actual substantive scope of the Amendment.  The Boerne view is that Congress is limited to enforcing the Amendment and does not have power to expand its substantive scope.  Whatever one thinks of Boerne, how could th same logic not apply to the 15th Amendment.  How can Boerne not mean that Congress can only enforce the 15th Amendment, but not expand its substantive scope?

Now, I realize there will be lots of issues about what it means properly to apply the congruence and proportionality standard in any particular case, as well as to cases that arise under the 14th versus the 15th amendment.  But in terms of the constitutional requirement that Congress is limited to enforcing the actual amendment, what's the case that Congress has power to expand the substantive scope of the 15th Amendement even if it does not have power to do that for the 14th?  Nothing said so far explains that to me.

-----Original Message-----
From: law-election-bounces at department-lists.uci.edu [mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of Brian Landsberg
Sent: Wednesday, June 26, 2013 1:57 PM
To: Justin Levitt; law-election at department-lists.uci.edu
Subject: Re: [EL] The curious disappearance of Boerne and the future jurisprudence of voting rights and race : SCOTUSblog

DOJ made a similar argument in Mobile v. Bolden, though not about enforcement authority.  We argued that the reasons for rejecting the effects test under the Fourteenth Amendment did not apply to the Fifteenth.  The Court rejected the argument.

Brian K. Landsberg
Distinguished Professor and Scholar
Pacific McGeorge School of Law
3200 Fifth Avenue, Sacramento CA 95817
916 739-7103


-----Original Message-----
From: law-election-bounces at department-lists.uci.edu [mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of Justin Levitt
Sent: Wednesday, June 26, 2013 10:45 AM
To: law-election at department-lists.uci.edu
Subject: Re: [EL] The curious disappearance of Boerne and the future jurisprudence of voting rights and race : SCOTUSblog

Congressional enforcement power has to be related to its substantive constitutional provision, which means that the Court needs some standard of review.

But even if textual grants of enforcement power are identical -- and even if Congressional power to act is equal under each enforcement provision, which need not be the case -- it is not a necessary conclusion that the Court should review all enforcement activity with an equally skeptical eye.  (Cf. the equal protection clause, where the single textual standard of equal protection spawns judicial review with varying degrees of deference depending on the context.)

One argument to believe in broader deference for 15th Amendment enforcement activity power stems from the relative perceived danger of expansive congressional power.  The 14th Amendment is a substantive protection that is quite broad, which renders Congressional enforcement
power quite broad.   A Court worried about overly expansive
congressional activity might review this enforcement power more strictly, to reduce congressional latitude: enforcement power would be
broad but somewhat shallow.   The 15th Amendment is a substantive
protection that is much narrower, and so perhaps there is less reason to fear overly expansive congressional activity: review might be more deferential, to allow enforcement power that is topically narrow but comparatively deeper.  (I'm not claiming that this is actually the view of the Court -- but it's a nontrivial reason to think that standards of review might be different.  As Rick pointed out, none of this was clarified yesterday.)

Justin

--
Justin Levitt
Associate Professor of Law
Loyola Law School | Los Angeles
919 Albany St.
Los Angeles, CA  90015
213-736-7417
justin.levitt at lls.edu
ssrn.com/author=698321

On 6/26/2013 10:31 AM, Rick Hasen wrote:
> I'm on vacation without access to everything but others have written about why the 15 th amendment power should be broader.  Ellen Katz I think for one.
>
> Rick Hasen
>
> Sent from my iPhone. Please excuse typos.
>
> On Jun 26, 2013, at 2:09 AM, "Jonathan Adler" <jha5 at case.edu> wrote:
>
>> Rick --
>>
>> Interesting post.  Here's my question.  Is there any reason to assume
>> that the test governing Congressional exercises of the 15th
>> Amendment's enforcement power should be different than for the 14th
>> Amendment?  That is, if one believes Boerne is correct, what would
>> the reason be for not applying a similar approach to the 15th
>> Amendment?  I recognize that Boerne may be wrong, but the question
>> would be the same.  Assume the Court should apply a different test
>> for Section 5 of the 14th, why should the test for a parallel
>> enforcement provision adopted contemporaneously be any different?
>>
>> JHA
>>
>> ------
>> Jonathan H. Adler
>> Johan Verheij Memorial Professor of Law Director, Center for Business
>> Law & Regulation Case Western Reserve University School of Law
>> 11075 East Boulevard
>> Cleveland, OH 44106
>> ph) 216-368-2535
>> fax) 216-368-2086
>> cell) 202-255-3012
>> jha5 at case.edu
>> http://www.jhadler.net
>> SSRN: http://ssrn.com/author=183995
>>
>>
>> -----Original Message-----
>> From: law-election-bounces at department-lists.uci.edu
>> [mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of
>> Rick Hasen
>> Sent: Tuesday, June 25, 2013 7:20 PM
>> To: law-election at UCI.edu
>> Subject: [EL] The curious disappearance of Boerne and the future
>> jurisprudence of voting rights and race : SCOTUSblog
>>
>>
>> http://www.scotusblog.com/2013/06/the-curious-disappearance-of-boerne
>> -and- the-future-jurisprudence-of-voting-rights-and-race/
>>
>>
>> Rick Hasen
>>
>> Sent from my iPhone. Please excuse typos.
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