[EL] Response to Jim Blacksher

[Pildes, Rick]

I feel an obligation to respond to Jim’s post yesterday.  I think the point Jim is trying to make is that the Court ought to understand its prior cases as leading to the view that Section 5 should be upheld as long as there is evidence of continuing problems in the covered areas, regardless of how they compare to non-covered areas.  I discuss this position in my contribution<http://www.scotusblog.com/2012/09/online-vra-symposium-the-supreme-court-response-to-congressional-avoidance/> to the VRA Symposium on Shelby County the Supreme Court blog recently held.  As I said there, there are three different understandings of what constitutional doctrine requires here that the Court could, in theory, accept:  (1) taking the covered jurisdictions in isolation, Congress might only have to show that voting problems continue to exist in those areas; (2) taking the covered jurisdictions in the aggregate and comparing them to the non-covered ones, Congress might only have to show significant continuing differences between “the covered” and the “non-covered” areas; (3) taking the covered jurisdictions one by one, Congress might have to show that significantly different problems plague particular jurisdictions to justify their continued inclusion (at least at the state level, as a first cut at requiring close tailoring between Section 5’s coverage and contemporary circumstances).

Jim would like the Court to take position (1).  That view, indeed, was the view that Jim and others took in 2006 when Congress focused nearly all its attention on building a record based on the belief that all that modern doctrine and the current Court would require is evidence to support (1).  But in light of yesterday’s argument and NAMUNDO, I consider that view mistaken and that result extremely unlikely.  Rightly or wrongly, the majority of the Court seems quite likely to adopt either position (2) or (3).  The question, then, is going to be whether there is enough evidence to meet those legal standards.

The larger point, though, is that the choice between these three positions is a normative choice about what constitutional doctrine ought to be.  That issue has nothing to do with the factual question of what Congress might have intended when it first enacted Sections 4 and 5 in 1965.  I have said nothing about that factual question at all – thus, there is nothing to have been fundamentally mistaken about.  Nor is there much reason to get into that historical debate about what Congress did or did not have in mind in 1965.  The question here is what the Constitution (as understood by the majority) requires:  that is a question about what the law requires, not about what Congress understood itself to be doing and why (whether in 1965 or at any other time).

Indeed, what is “fundamentally mistaken” is Jim’s view that a factual matter (what Congress intended in 1965) could ever resolve a legal question of what constitutional doctrine requires.  It can’t.  Moreover, I have never expressed a view on whether I think the Constitution ought to require Section 5 to meet standards (1), (2), or (3).  When I testified to the Senate Judiciary Committee in 2006, I said that the way to best protect Section 5 was to assume that the modern Court would judge Section 5 under the latter two standards.  And based on my reading of NAMUNDO and yesterday’s argument, I have now predicted that the Court is not going to embrace position (1), as Jim would apparently prefer.  But predictions, of course, cannot be factually mistaken either.  They can only turn out to be right or wrong once the decision comes down.




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