My agreement
is with Bolden's rejection of a constitutional vote dilution claim in
the absence of discriminatory purpose, and it is based upon the Court's
factual premise that there was no proof of intentional racial
discrimination in Mobile's choosing the at-large voting system. I
don't have an opinion on whether the factual premise is correct, not
having looked at the evidence.
Morgan may well be right that the DOJ would have objected to the
hypothetical change for Mobile that I posited in my earlier post. I
think my reading is a fair one based on Beer, but what has become clear
to me over the last few months in my (very helpful) interaction with
former DOJ lawyers is that law professors' views of how section 5
preclearance worked and the views of DOJ lawyers are often very
different. Of course, the neatness (or apparent neatness) of the Beer
test is gone following Ga. v. Ashcroft.
Rick
J. Morgan Kousser wrote:
I agree with Rick that Roberts would be a likely fifth
vote to overturn Section 5, but I'd add Miller v. Johnson "colorblind"
grounds to City of Boerne "insufficient congressional homework"
grounds, and I'd note that the more homework Congress does for renewal
in 2006-07, the greater the danger that Section 5 will be overturned on
colorblind grounds.
I don't believe, however, that his hypothetical from Mobile is
justified. It's just not clear in Beer v. U.S. whether the baseline
for retrogression is the general political status of minorities or the
effect of the particular innovation. If the latter, then the DOJ and
the DC District Court would overturn a switch to three white-majority
single-member districts (and they'd have to be very gerrymandered in
Mobile to have 3 white-majority districts), comparing them to three
fairly drawn single-member districts, rather than to the previous
at-large system. While I agree that one COULD read Beer as having the
implication Rick draws, I think the opposite reading is equally likely,
and the literature on objection letters seems to indicate that the DOJ
usually, if not always, read it by determining the effect of the change
in isolation.
As regards Bolden, I read Stewart in Bolden and City of Rome (issued
the same day; Stewart joining Rehnquist in dissent in City of Rome) as
saying Congress can't go further than the 14th/15th and write an effect
standard into the VRA. I realize that this is inconsistent with Beer,
but I think Stewart didn't recognize the inconsistency or had moved on
by then in a more general effort to sabotage minority voting rights.
If this reading is right, then Stewart's decision for the plurality in
Bolden would have negated Rick's position that it would not be possible
to overturn at-large elections without proving intent if one were
relying on the constitution, but that Congress could authorize courts
to strike down at-large elections on an effect basis, using Section 2
of the VRA, or ban all changes to at-large under Section 5. (I also
disagree with Rick's approval of the Bolden plurality decision and note
that I helped Peyton McCrary develop the evidence that found racially
discriminatory purposes in the 1874-76 adoptions of the city government
and school board at-large systems in Mobile in the remand Bolden and
Brown cases. But these points are irrelevant to the factual argument
on what Bolden says.)
I'd appreciate any comments on these remarks, on-list or off-list.
They're reflective of the paper I'm madly trying to finish for the
Russell Sage volume, and I'd like to get things right.
Morgan
Prof. of History and Social Science, Caltech
snail mail: 228-77 Caltech, Pasadena, CA 91125
phone 626-395-4080
fax 626-405-9841
home page: <http://www.hss.caltech.edu/~kousser/Kousser.html>
to order Colorblind Injustice:
http://uncpress.unc.edu/books/T-388.html
"Peace if possible, Justice at any rate" -- Wendell Phillips
--
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