[EL] Section 2

[Justin Levitt]

The argument by Mr. Clegg and Mr. von Spakovsky is predicated on the 
notion that it's constitutionally questionable to construe section 2 to 
exact liability upon statistical evidence of disparate impact alone.  
They ask the courts to steer clear of this purported danger zone, and 
counsel for a much narrower interpretation of section 2.

But the statute only needs extra steering if there's actually a danger.  
The image of section 2 as predicated on effects alone is yet another bad 
caricature <http://ssrn.com/abstract=2265729> of what the Voting Rights 
Act does.  (I've been working on a sequel to that linked paper.  There 
are plenty of assumptions about what section 2 does and doesn't do that 
aren't based on the actual statute.)

It's true that section 2 is often called an "effects" or "results" test 
-- as imprecise shorthand.  But as Mr. Clegg and Mr. von Spakovsky 
mention, and as I've explained 
<http://redistricting.lls.edu/files/_%20Levitt%20responses%20to%20Franken%20QFRs.pdf#page=5>, 
that's not what the text does.  At least recently (and perhaps since the 
1982 amendment), courts have demanded more than just purely disparate 
results.  That is, "calling section 2's test a 'results test' is 
something of a misnomer" -- US v. Blaine County, 363 F.3d 897, 909 (9th 
Cir. 2004).  And Mr. Clegg and Mr. von Spakovsky themselves cite a 
litany of cases holding that section 2 is _not_ violated purely by a 
showing of disparate impact.

Is there a case, anywhere in the country, actually finding liability 
under section 2 based on disparate impact _alone_, with nothing more to 
the "totality of circumstances"?  (That's a real question.)

And if not, doesn't that suggest that the statute is already tailored to 
avoid the supposed constitutional difficulty?

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 3/17/2014 9:24 PM, Rick Hasen wrote:
>
>
>     On the Road to Arguing for the Unconstitutionality of Section 2 of
>     the Voting Rights Act <http://electionlawblog.org/?p=59492>
>
> Posted on March 17, 2014 9:20 pm 
> <http://electionlawblog.org/?p=59492>by Rick Hasen 
> <http://electionlawblog.org/?author=3>
>
> I've been sounding this alarm for a while, beginning with leading up 
> to the /Shelby County/ oral argument. Opponents of the 
> constitutionality of Voting Rights Act Section 5 made the claim, among 
> others, that Section 5 was no longer necessary to protect minority 
> voting rights because other provisions of the Act, including Section 
> 2, would do that work.  Yet some of the very constitutional arguments 
> against Section 5 (such as the argument that /City of Boerne/ and 
> other new federalism cases require Congress to show intentional state 
> racial discrimination and that the law is a "congruent and 
> proportional remedy" for such intentional discrimination) could be 
> pushed equally against Section 2.
>
> Now that Section 5 is essentially gone, it is time for the attack on 
> Section 2.
>
> Here is the final stage before the unconstitutionality argument: an 
> extensive argument by Roger Clegg and Hans von Spakvosky 
> <http://www.heritage.org/research/reports/2014/03/disparate-impact-and-section-2-of-the-voting-rights-act>that 
> courts must interpret Section 2 very, very narrowly or else the law 
> would be an unconstitutional exercise of congressional power under 
> /City of Boerne/ and /Shelby County/.
>
> It's a win-win for them as far as the argument goes: either section 2 
> is sapped of any of its remaining vitality through an anemic reading 
> under the doctrine of constitutional avoidance; or Section 2 is now 
> unconstitutional.
>
> Sad but predictable.
>
> Posted in The Voting Wars <http://electionlawblog.org/?cat=60>, Voting 
> Rights Act <http://electionlawblog.org/?cat=15>
>
>

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