I read the cases differently. In Hibbs, for example, the Supreme Court largely relied on evidence that did not violate the Fourteenth Amendment, a point that the Supreme Court majority made in Tennessee v. Lane, the most recent of these cases:
"Moreover, what The Chief Justice calls an "extensive legislative record documenting States' gender discrimination in employment leave policies" in Nev. Dep't of Human Res. v. Hibbs, 538 U.S. 721, 155 L. Ed. 2d 953, 123 S. Ct. 1972 (2003), post, at ____, 158 L. Ed. 2d, at 853, in fact contained little specific evidence of a pattern of unconstitutional discrimination on the part of the States. Indeed, the evidence before the Congress that enacted the FMLA related primarily to the practices of private-sector employers and the Federal Government.
"Given the sheer volume of evidence demonstrating the nature and extent of unconstitutional discrimination against persons with disabilities in the provision of public services, the dissent's contention that the record is insufficient to justify Congress' exercise of its prophylactic power is puzzling, to say the least. Just last Term in Hibbs, we approved the family-care leave provision of the FMLA as valid § 5 legislation based primarily on evidence of disparate provision of parenting leave, little of which concerned unconstitutional state conduct.
Tennessee v. Lane, 541 U.S. 509, 527-29 (2004).
Moreover, in the specific case of Section 2, both Congress and the Supreme Court have recognized that Section 2 was designed remedy conduct that was the byproduct of unconstitutional conduct:
"The Senate Committee found that 'voting practices and procedures that have discriminatory results perpetuate the effects of past purposeful discrimination.' Id., at 40 (footnote omitted). As the Senate Report notes, the purpose of the Voting Rights Act was 'not only to correct an active history of discrimination, the denying to Negroes of the right to register and vote, but also to deal with the accumulation of discrimination.'' Id., at 5 (quoting 111 Cong. Rec. 8295 (1965) (remarks of Sen. Javits))."
Thornburg v. Gingles, 478 U.S. 30, 44 n.9 (1986).
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
The information contained in this message from the Lawyers' Committee for Civil Rights Under Law and any attachments are confidential and intended only for the named recipient(s). If you have received this message in error, you are prohibited from copying, distributing, or using the information. Please contact the sender immediately by return e-mail and delete the original message.
-----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 1:34 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
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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
The information contained in this message from the Lawyers' Committee for Civil Rights Under Law and any attachments are confidential and intended only for the named recipient(s). If you have received this message in error, you are prohibited from copying, distributing, or using the information. Please contact the sender immediately by return e-mail and delete the original message.
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
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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