[EL] Section 2

[Christopher S. Elmendorf]

I think the real question here is not whether Section 2 establishes a simple effects test, or even whether Section 2 requires some evidence of disparate treatment or allows for some accommodation of legitimate state interests (the arguments advanced by Clegg and von Spakovsky).  Rather, the important question is what kind of initial showing the courts expect plaintiffs to make with respect to disparate treatment, and how the  courts allocate the ultimate burden of persuasion.  I have a new paper with Doug Spencer that addresses these questions, which we will soon post to SSRN.

Chris

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

From: Justin Levitt <levittj at lls.edu<mailto:levittj at lls.edu>>
Date: Tuesday, March 18, 2014 12:32 AM
To: "law-election at department-lists.uci.edu<mailto:law-election at department-lists.uci.edu>" <law-election at department-lists.uci.edu<mailto:law-election at department-lists.uci.edu>>
Subject: [EL] Section 2

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<mailto: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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