<x-flowed>   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
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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

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