Judge Roberts and the 1982 Voting Rights Act Memos: Why I Now Expect They Will Be Produced

I have noted that civil rights opponents of Judge Roberts' nomination to the Supreme Court have pointed to his role in crafting the Reagan Administration's initial opposition to amended the Voting Rights Act. In 1982, despite the Administration's efforts, Congress passed amendments creating an "effects" test in section 2 of the VRA, achieving the goal of making it easier for minority plaintiffs to bring vote dilution claims following the Supreme Court's decision in Mobile v. Bolden.

My earlier post noted that the memos prepared by Judge Roberts had not been released, so it was impossible to know the extent to which his own views on the desirability (or not) of the new section 2 were reflected in Administration policy. I had assumed that the Bush administration would block production of the memo, on grounds of executive privilege. I now think the memo will indeed be produced.

This Boston Globe report on Judge Roberts' civil rights record notes that civil rights groups are intensely interested in the voting rights memos. Today's Washington Post features this extensive article based upon memoranda Roberts prepared in other matters that are now available at the Reagan Library (a 30 minute ride from my house, by the way). And the New York Sun reports the following:

The Simi Valley, Calif., library lists hundreds of files prepared by Mr. Roberts on subjects ranging from the Abscam bribery scandal to humanitarian assistance to Nicaragua. About 4,200 pages of the files are available to the public, but the vast majority of his documents, numbering in the tens of thousands or more, are still awaiting processing.

Senate Democrats have said they will ask for full access to the records, but an archivist said the nonpublic files will be released only upon the request of the Bush administration.

So here the case against release of the documents falls apart. One cannot plausibly claim, as Shannen Coffin does here, that releasing the documents will chill candid speech of those lawyers working for the administration. The papers are 25 years old. Roberts' papers on other topics from the ear are already coming out, and the very papers of concern to the civil rights community apparently already would have been released, but for the administrative delay at the Reagan Library in having them produced. And apparently it will just take a phone call from the White House to get them released.

Richard Epstein on the Roberts Confirmation and the McConnell Case

See this Wall Street Journal editorial (paid subscription required). Thanks to Mike Renaud for the pointer.

"Historic Voting Rights Conference Set for July 25-26"

See this announcement at civilrights.org.

"Federal officials investigate LA compliance with voting law"

A.P. offers this report.

"Tea Leaves" on How the FEC Will Come Down on Whether Bloggers Should Get the Press Exemption?

Adam Bonin sees some hints in the FEC's ruling on a complaint against CBS. Allison Hayward excerpts the most important statement in this MUR signed by 2 commissioners. An excerpt of that excerpt: "we can find no statutory, constitutional, or especially, policy justification that would deny the so-called press exemption to any periodical publisher of political news or views, whether publishing in print, by broadcast, or over the internet." See also this Washington Post report.

"New secretary of state describes himself as a 'redneck farmer'"

See this news from Louisiana.

"Reform Legal, But Stalled"

The Palm Beach Post offers this editorial, which begins: "The Federal Election Commission is supposed to enforce campaign laws, but the two major political parties have turned it into a loophole machine."

"Gov.'s Remap Bid Ruled Invalid"

The Los Angeles Times offers this report.

Breaking News: Judge Orders California Redistricting Initiative Removed from the Ballot

UPDATE: A.P.'s story is here.

Update 2: I think I was a bit hasty in writing that the appellate review will be de novo. In fact, the court did make some factual findings about what the initiative proponents' knew and when they knew it that could be potentially relevant on appeal. For more on this see this post by Dan Lowenstein (who is involved with the case on the side of the measure's opponents) and this post at the Southern California law blog. Factual findings are subject to a more deferential standard of review, making it even more likely that the judge's ruling gets upheld on appeal.

-- 
Rick Hasen
William H. Hannon Distinguished Professor of Law
Loyola Law School
919 Albany Street
Los Angeles, CA  90015-1211
(213)736-1466
(213)380-3769 - fax
rick.hasen@lls.edu
http://www.lls.edu/academics/faculty/hasen.html
http://electionlawblog.org