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

Wed Jun 26 13:21:47 PDT 2013

I would say that the majority's objection goes not to the sufficiency of
the evidence that Congress amassed, but to the lack of a plain, "on its
face" connection between the coverage formula and the constitutional
injuries that Congress meant to remedy circa 2006.  How else to explain
the majority's utter disinterest in the record itself, and the majority's
assertion that the coverage formula is "irrational" as a means of
combating second generation barriers because it is "based on voting tests
and access to the ballot, not vote dilution"?

In spirit if not so consistently in rhetoric, the majority opinion seems
to me a natural sibling to the Shaw line of cases, with their concern for
the "messages" sent by race-conscious election rules.  On this view, the
"message" of the 2006 Amendments was that Congress presumed the Southern
states as either unchanged since the mid-1960s, or, if changed,
undeserving of any acknowledgment of the changes.

I think the majority opinion leaves Congress with ample room to establish
a new coverage formula expressly grounded in current data, so long as it
is plain to the ordinary observer how the new formula--on its
face--relates to the constitutional injuries that Congress means to remedy
or prevent.  If the new formula ends up picking out mostly Southern
states, that's okay.  But the Southern states can't be stereotyped based
on history alone. 

I do not mean to defend the majority opinion.  This just seems to me the
only way to make sense of the majority's indifference to the record and
lack of engagement with the Boerne question.

Chris

Christopher S. Elmendorf
Professor of Law
UC Davis School of Law
400 Mrak Hall Drive
Davis, CA 95616 
530.752.5756

On 6/26/13 12:05 PM, "Lori A Ringhand" <ringhand at uga.edu> wrote:

>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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