Judge Roberts and the Voting Rights Act: What do we know?

As I have been writing, there is no question that whoever replaces Justice O'Connor on the Supreme Court can have a great deal of influence on election law. Depending upon how that new Justice votes, we could potentially see an end to the current rules for campaign financing (for example, making it easier for corporations and unions to spend money for election related activities), a change in the rules for partisan gerrymandering claims, and potentially a holding that a reauthorized preclearance provision of the Voting Rights Act is unconstitutional as exceeding Congressional power.

President Bush's newly named nominee to replace Justice O'Connor, D.C. Circuit judge John G. Roberts, Jr., does not appear to have much of a paper trail on election law issues. We are told that Roberts will be a lot like Chief Justice Rehnquist, that he could make a dynamic center of the Court (with Justices Kennedy and Breyer), and that he is someone with reverence for the Court, not anger like a Justice Scalia or Thomas.

These generalizations don't help much in knowing how a Justice Roberts would rule in election law cases. For example, even if he believed that it should be unconstitutional to limit corporate and union expenditures in elections, an "institutionalist" with respect for stare decisis might move slowly, not boldly, to overturn precedents such as McConnell or Austin.

Opponents of Judge Roberts have tried to paint him as an opponent of the Voting Rights Act. This San Francisco Chronicle editorial, for example, states that Roberts advocated "against a congressional effort to make it easier for minorities to argue that their votes had been diluted under the Voting Rights Act."

Although this statement appears technically true, it tells us nothing about what Judge Roberts actually thinks of the Voting Rights Act. I found this information on page 4 of this Alliance for Justice report opposing the nomination of Roberts for confirmation to the D.C. Circuit:

After a 1980 Supreme Court decision, Mobile v. Bolden, dramatically weakened certain sections of the Voting Rights Act, Roberts was involved in the administration’s effort to prevent Congress from overturning the Supreme Court’s action. The Supreme Court had decided, despite a lack of textual basis for this interpretation of the statute, that plaintiffs claiming certain violations of the Voting Rights Act, such as minority vote dilution, had to prove that the discrimination was intentional rather than just having a discriminatory effect.5 Roberts joined the Administration in opposing the “Section 2” extension of the Act, strongly supported by both the House and the Republican-controlled Senate, which would have reinstated the effects standard. Instead, he participated in the effort to amend the extension of the Act so that voting rights plaintiffs would continue to have to prove discriminatory intent, a much harder task.6

Footnote 6 to the report states: "Critical portions of the FOIA documents that could show Roberts’ positions on this issue were redacted, making it impossible to document the actual level and substance of his influence and involvement."
So Judge Roberts' position on rewriting section 2 of the Voting Rights Act in 1982 appeared to be one taken at the behest of the administration he was serving, and may or may not represent his personal opinions.
Unless the White House agrees to turn over internal memoranda from Judge Roberts' service in earlier administrations, the only additional insight we are likely to get on Judge Roberts' views of election law cases is going to come from answers that he gives to the committee. In the meantime, it does not appear to be a fair characterization to paint him as opposed to all or part of the Voting Rights Act (or campaign finance laws for that matter). It is fair to say that he has no record in this area from which those who support campaign finance reform or a strong Voting Rights Act can take any comfort.

"Avoid the Rush To Judgment: Don’t Abolish 527s"

Nan Aron and David Keating write this Roll Call oped (paid subscription required). It begins:

Congress is considering several bills that would limit free expression to such an extent that they have drawn the united opposition of groups that almost never see eye-to-eye — and are more accustomed to slugging things out toe-to-toe.

Like us.

What could create such an unlikely coalition of political pugilists? S. 271, S. 1053 and H.R. 513 — bills that would effectively abolish the groups that, in Washington shorthand, are known as 527s.

Who Will Be the New Commissioners at the FEC?

The Hill offers this very interesting report. Thanks to Jason Levitis for the pointer.

-- 
Rick Hasen
William H. Hannon Distinguished Professor of Law
Loyola Law School
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