So I've now read the Mobile Register editorial, and I have a question.
It seems like Rev. Jackson made two statements to which the editorial
board objects. The first is that Americans "have not yet reached the
voter protection system afforded to Iraqis." I don't know what that
means, and given the obvious differences in situations it's clearly just
rhetoric. The second, which is not a quote but a paraphrase of Rev.
Jackson, is that "President Bush and Republican allies are suppressing
minority voters in the United States." Because it's just a paraphrase,
we can't tell from the editorial exactly what Rev. Jackson said, but I
bet lots of informed people would agree that minority vote suppression
remains a problem in the US. To the extent that that's the substance of
what Rev. Jackson said -- and, again, the editorial doesn't give us any
real way to know -- it's hard (for me, at least) to disagree.
But the question is this: How will continuing Section 5's preclearance
remedy help solve this problem? My sense, from having worked on these
kinds of cases and followed the news, is that voter suppression these
days is not really a problem that is implemented by overt changes in
standards, practices, and procedures with respect to voting. Rather,
it's a problem of illicit, covert acts by folks who are quite successful
in covering their tracks. Maybe what they do technically counts as a
voting change (particularly since political parties are covered by
Section 5), but the problem is in figuring out who's doing what rather
than in figuring out whether a change is retrogressive or not.
Moreover, minority voter suppression is a nationwide problem, certainly
not limited to the covered jurisdictions.
If vote suppression is the problem, why isn't the right answer to let
Section 5 lapse and adopt in its place tough, privately enforceable,
nationwide prohibitions on vote suppression? I ask this honestly as a
question. I don't know what I think about this, and I have some
personal investment in Section 5 having spent a chunk of my professional
life defending broad interpretations of it. But it strikes me that the
arguments I keep hearing for renewal of Section 5 don't fit very well
with what Section 5 actually does.
====================================
Samuel R. Bagenstos
Professor of Law
Washington University School of Law
One Brookings Drive
St. Louis, MO 63130
314-935-9097
Personal Web Page:
http://law.wustl.edu/Academics/Faculty/Bagenstos/index.html
Disability Law Blog: http://disabilitylaw.blogspot.com/
"James Blacksher" <jblacksher@ns.sympatico.ca> 3/13/2005 7:40:21 AM
One of the traditions that survive from the nineteenth century that
I
can be proud of as a white Alabamian is the continued refusal of our
newspapers to feign impartiality. For the same reason I frequently
cite
Professor Dixon's aphorism that "in academia, there are no
nonpartisans,
although there may be noncombatants." I am a passionate proponent of
reauthorization of Section 5 of the Voting Rights Act, and the
editorial
policy of this listserv, by aligning itself with the Mobile Register,
is
duly noted.
Jim Blacksher
----- Original Message -----
From: "Lowenstein, Daniel" <lowenstein@law.ucla.edu>
To: <election-law@majordomo.lls.edu>
Sent: Saturday, March 12, 2005 9:35 PM
Subject: RE: news of the day 3/12/05
According to the Mobile Register editorial that Mr. Hauser
finds
objectionable, the Reverend Jackson is leading a petition drive for
extension of Section 5 of the VRA. The statements that the editorial
characterizes as falsehoods, scare tactics, and demagogic are
statements
made by the Rev. Jackson in support of his drive. You can quarrel
with
these characterizations if you like, though they seem accurate to me.
Readers of the editorial can judge for themselves.
But no, Mr. Hauser, I do not consider it an "ad hominem
attack"
to criticize--even to criticize sharply--arguments made by a prominent
supporter of the position one opposes. I do not understand the
relevance of
whether the Rev. has held public office. One thing he has done more
times
than you can shake a stick at is inject himself into public
controversies
(as he has the right to do). And he apparently has done that here. So
what
is wrong or "ad hominem" about criticizing his arguments?
I certainly do not suggest that all arguments in favor of
extending Section 5 are falsehoods, scare tactics, or demagogic. The
Mobile
Register might be criticized for failing to follow Valery's excellent
maxim:
"The first task of anyone who would refute an opinion is to master it
a
little more than its ablest defenders." But that is a far cry from an
ad
hominem attack.
-- Daniel Lowenstein
-----Original Message-----
From: Jeff Hauser [mailto:jeff_hauser95@post.harvard.edu]
Sent: Sat 3/12/2005 5:53 PM
To: Lowenstein, Daniel
Cc:
Subject: RE: news of the day 3/12/05
Apparently framing an argument over public policy by accusing someone
who
has never genuinely held public office (DC Shadow Senator not being a
real
office) of "FALSEHOODS and scare tactics" isn't argument by ad
hominem
according to Professor Lownestein.
I beg to differ; the VRA is about far more than Jesse Jackson, but
rather
than engage the arguments on favor of renewal, the Mobile Register
appeals
"to feelings or prejudices rather than intellect"
Given the loose standards Professor Lowenstein has employed at other
times
for the term "ad hominem," I'd think making a debate over federal
legislation about Jesse Jackson would surely qualify.
-----Original Message-----
From: owner-election-law_gl@majordomo.lls.edu
[mailto:owner-election-law_gl@majordomo.lls.edu] On Behalf Of
Lowenstein,
Daniel
Sent: Saturday, March 12, 2005 7:51 PM
To: election-law@majordomo.lls.edu
Subject: RE: news of the day 3/12/05
The "ad hominem attack" on Jesse Jackson consists of quoting
a
couple of his recent statements and characterizing those comments,
quite
accurately, as "demagogic."
-- Daniel Lowenstein
-----Original Message-----
From: owner-election-law_gl@majordomo.lls.edu on behalf of
Jeff
Hauser
Sent: Sat 3/12/2005 1:00 PM
To: 'election-law'
Cc:
Subject: RE: news of the day 3/12/05
IT'S WORTH NOTING THAT the tone of the Mobile Register's ad
hominem
attack on Jesse Jackson goes a long way to showing why many of us
believe
that, indeed, pre-clearance for past offending polities needs to be
renewed.
Newspaper Editorializes Against Renewing Section 5 of the
Voting
Rights Act
See this Mobile Register editorial
<http://www.al.com/opinion/mobileregister/index.ssf?/base/opinion/1110622673
108010.xml> . I believe this is the first editorial I have seen
taking a
position against renewing Section 5. It is sure not to be the last.
I
expect
a vigorous debate over this issue in the next two years before
preclearance
expires unless it is renewed.
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