[EL] Schuette & the VRA

Wed Apr 30 09:17:21 PDT 2014

Yesterday Rick linked to an essay<http://www.newrepublic.com/article/117552/supreme-courts-affirmative-action-setback-could-boost-voting-rights> that Doug Spencer and I wrote for The New Republic about the implications of the Michigan affirmative action case for the constitutionality of Section 2 and the pending “bail in” litigation against Texas and North Carolina.

Rick questioned whether our take was “unduly rosy.”  I’d be curious to hear others' thoughts about this.  I had expected the Court in Schuette to inter the “political process doctrine,” citing Mobile v. Bolden for the proposition that equal protection / race discrimination challenges to political-process arrangements are subject to the same intent test as equal protection / race discrimination challenges to any other state action.  But instead, the Kennedy plurality opinion (joined by Roberts and Alito) distinguished the earlier political process cases on the ground that they involved political-process changes undertaken in conditions of widespread societal discrimination.

To the extent that Section 2 is understood to require some showing that connects the disparate impact of the challenged election procedure to societal discrimination (see for example yesterday’s opinion in the Wisconsin voter ID case), doesn’t Schuette provide considerable support for the constitutionality of the results test?

--Chris

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

From: rick hasen <rhasen at law.uci.edu<mailto:rhasen at law.uci.edu>>
Date: Tuesday, April 29, 2014 at 11:56 AM
To: "law-election at UCI.edu<mailto:law-election at UCI.edu>" <law-election at UCI.edu<mailto:law-election at UCI.edu>>
Subject: [EL] Breaking News - Wisconsin voter id case/more news

“Last Week’s Affirmative Action Setback Could Be a Boost to Voting Rights”<http://electionlawblog.org/?p=60959>
Posted on April 29, 2014 7:34 am<http://electionlawblog.org/?p=60959> by Rick Hasen<http://electionlawblog.org/?author=3>

An (unduly?) rosy read<http://www.newrepublic.com/article/117552/supreme-courts-affirmative-action-setback-could-boost-voting-rights> at TNR from Chris Elmendorf and Doug Spencer.

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