I think Jon gets the better of this debate as to whether Section 2
violations provide evidence that will significantly help to support the
constitutionality of an extension of Section 5. First, in the context of
racial discrimination in voting, the Court won't be quite as strict (i.e.,
Garrett-strict) about the need to prove "actual" constitutional
violations--with this contextual review of the record seeming be the lesson
of Hibbs and Lane. Second, and related to the first point, is that when it
comes right down to it, the Section 2 statutory results standard very
closely approximates the constitutional standard handed down in Rogers v.
Lodge.
I've written about both of these ideas in an article published less than a
month ago--"Congressional Enforcement of Affirmative Democracy Through
Section 2 of the Voting Rights Act," 25 N. Ill. U. L. Rev. 183 (2005).
Some members of this list have already seen a reprint, but I'd be happy to
e-mail a PDF version to anyone else on the list who wants one.
Mike
Visiting Assistant Professor
University of Nebraska College of Law
P.O. Box 830902
Lincoln, NE 68583-0902
402-472-1251
mpitts3@unl.edu
-----Original Message-----
From: owner-election-law_gl@majordomo.lls.edu
[mailto:owner-election-law_gl@majordomo.lls.edu] On Behalf Of
rick.hasen@lls.edu
Sent: Sunday, July 17, 2005 12:34 PM
To: Jon Greenbaum; Rick Hasen; election-law
Cc: Election-law@majordomo.lls.edu
Subject: RE: Will Reauthorization of the Voting Rights Act Come Too Quickly
andEasily, Rendering It Unconstitutional?
Jon,
I disagree with your assessment of the relevant constitutional standard. A
Court majority since Boerne and especially Garrett has required that
Congress point to a pattern of intentional discrimination by states. If
Congress shows such a pattern it may craft a congruent and proportional
remedy, which may go beyond barring intentional discrimination. So i donlt
believe proof of section 2 violations helps with the first part of the test.
-----Original Message-----
From: Jon Greenbaum <jgreenbaum@lawyerscommittee.org>
Subj: RE: Will Reauthorization of the Voting Rights Act Come Too Quickly
andEasily, Rendering It Unconstitutional?
Date: Sun Jul 17, 2005 8:51 am
Size: 18K
To: Rick Hasen <Rick.Hasen@lls.edu>, election-law
<election-law@majordomo.lls.edu>
v\:* {behavior:url(#default#VML);} o\:* {behavior:url(#default#VML);}
w\:* {behavior:url(#default#VML);} .shape {behavior:url(#default#VML);}
st1\:*{behavior:url(#default#ieooui) } Rick,
I, and others in the civil rights community, agree with your basic point
#8211; that a rush to reauthorization in the post-Boerne era is a recipe for
disaster. We know that Congress needs to develop an extensive record of
discrimination in voting for the subsequent legal attack and we will do
everything in our power to ensure that Congress does what the Supreme Court
requires.
The need for a record is why, as Mike Pitts alluded to, the Lawyers#8217;
Committee created the National Commission on the Voting Rights Act with the
assistance and support of the civil rights community. The National
Commission, which is chaired by Bill Lann Lee, is holding regional and
state-based hearings throughout the country (the 4th of 9 is the Midwest
hearing in Minneapolis on Friday) to hear from attorneys, community leaders,
elected officials, election officials, and the public to hear about
discrimination in voting. The National Commission is also combing DOJ#8217;s
enforcement record and the files of voting rights lawyers and taking facts
from research done by others. Chandler Davidson, one of the National
Commissioners, is spearheading the research effort and has been working
full-time on this since September 2004. We expect that the report will be
done by January 2006. For more information, see www.votingrightsact.org
You imply that only intentional discrimination is relevant to the
Congressional record. While there are some conservative members of the
Supreme Court who have taken that position, the Court#8217;s majority has
never explicitly taken that position. It would be particularly troubling to
limit the relevant record to intentional discrimination when Congress
amended Section 2 in 1982 to allow for results claims and there have been
hundreds of such claims that have been successful through court decision or
settlement since. Indeed, racially polarized voting is often a byproduct of
past purposeful discrimination. We believe that the discrimination reflected
in Section 2 cases is an important part of the record, in addition to the
more direct examples of intentional discrimination, such as the pre-Bossier
II intent objections and the dispatching of DOJ observers, who are sent when
the Attorney General determines that observers are necessary to prevent
violations of the voting gua!
rantees of the 14th and 15th Amendment.
You also suggest that the scope of Section 5 should be narrowed to satisfy
a constitutional challenge. There might be a need to narrow Section 5 in
some respects to comport with Boerne -- we will not know until the record is
more complete. But broadening/restoring Section 5 should also be considered;
to give one example, a legislative overturning of Bossier II should not
raise serious constitutional concerns because it would prevent only
unconstitutional behavior.
These issues will be coming to the fore in the coming months and I#8217;m
glad that you taking great interest in them.
Jon Greenbaum
Director - Voting Rights Project
Lawyers' Committee for Civil Rights Under Law
1401 New York Avenue, NW
Suite 400
Washington, DC 20005
(202) 662-8315 (phone)
(202) 628-2858 (fax)
jgreenbaum@lawyerscommittee.org
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From: owner-election-law_gl@majordomo.lls.edu
[mailto:owner-election-law_gl@majordomo.lls.edu] On Behalf Of Rick Hasen
Sent: Friday, July 15, 2005 5:26 PM
To: election-law
Subject: Will Reauthorization of the Voting Rights Act Come Too Quickly
andEasily, Rendering It Unconstitutional?
http://electionlawblog.org/archives/003710.html Will Reauthorization of
the Voting Rights Act Come Too Quickly and Easily, Rendering It
Unconstitutional? The preclearance provision (section 5) of the Voting
Rights Act, along with some other provisions of the Act, come up for renewal
in 2007, and it was originally expected that Congressional debate over
renewal would come in 2006 or early 2007.
Things now appear to be moving much faster. Back in February, it appeared
that President Bush did not even know that the reauthorization issue was
coming, and his spokesperson was non-committal about reauthorization. Now,
the President not only expressed support for reauthorization; he wants to
look for ways to strengthen the act. Perhaps even more importantly,
according to this press release, House Judiciary Committee Chairman F. James
Sensenbrenner, Jr. (R-Wis.) today is announcing he will introduce
legislation to extend the Voting Rights Act for 25 years and is calling for
a bipartisan approach to civil rights issues. In his prepared remarks,
Sensenbrenner said: The Voting Rights Act must continue to exist #8211; and
exist in its current form. This Washington Post report notes that House
Speaker J. Dennis Hastert (R-Ill.) included reauthorization of the Voting
Rights Act among his immediate priorities when he outlined his upcoming
agenda on the House floor before the F!
ourth of July district work period. This new urgency may explain today's
Wall Street Journal oped by Thernstrom and Blum opposing reauthorization.
So it may be that we are on track for a quick renewal of section 5 of the
Voting Rights Act to apply to the same jurisdictions as in 1982, and to
apply for another 25 year period. That might sound like a great potential
victory for the civil rights community, which so far has been applauding
these actions (and the Post suggests that this is part of Republican
outreach to minority communities).
But this might not be much of a victory. There are strong reasons to
believe that a reauthorization tied to the use of a test or device for
voting in 1965 and 1982 and that extends federal intrusion into state and
local voting rules for another generation would be unconstitutional. The
basic point (spelled out in much greater detail here) is that in recent
years the Supreme Court has limited the scope of Congress's power to burden
the states with onerous requirements. If Congress passes a broad-based law
subjecting some states to preclearance for 25 more years without showing a
strong evidentiary record that states are engaging in unconstitutional
racial discrimination in voting could well be struck down by the Supreme
Court, especially a Court lacking Justice O'Connor.
What should proponents of reauthorization do? (1) Slow down. (2) Craft a
careful evidenitary record of intentional discrimination by states. (3)
Explore potential bases for the exercise of congressional power that would
withstand Supreme Court scrutiny. (4) Consider whether a narrower and more
carefully crafted law might be worthwhile in order to save the law from
judicial nullification.
-- Rick Hasen William H. Hannon Distinguished Professor of LawLoyola Law
School 919 Albany Street Los Angeles, CA 90015-1211 (213)736-1466 - voice
(213)380-3769 - fax rick.hasen@lls.edu
http://www.lls.edu/academics/faculty/hasen.html http://electionlawblog.org