How Would a Justice Roberts Vote on the Constitutionality of a Reauthorized Section 5?

In my recent L.A. Times oped, I wrote about Judge Roberts' views on the 1982 Voting Rights Act amendments. He strongly opposed efforts to expand the Act to make it easier for members of protected minority groups to prove claims of vote dilution:

In these documents, Roberts wrote that the new Section 2 would "establish a quota system" and "provide a basis for the most intrusive interference imaginable by federal courts into state and local processes." He added that it "would be difficult to conceive of a more drastic alteration of local government affairs."

Imposing the new Section 2 nationwide, he concluded, would be "not only constitutionally suspect, but also contrary to the most fundamental [tenets] of the legislative process on which the laws of this country are based."

I concluded that these views provide a good indication that if Judge Roberts is confirmed to the Supreme Court, he would well cast the deciding vote holding that a reauthorized section 5 goes beyond Congressional power under the Court's recent federalism jurisprudence. I concluded:

Roberts' writings, on the other hand [i.e., compared to Justice O'Connor's vote recently in Tennessee v. Lane], show much more skepticism of congressional power, particularly on voting rights. Because Roberts viewed the "effects" language in Section 2 as an "intrusive interference" that is a "drastic alteration" of American government and "constitutionally suspect," why would he look charitably on a renewed Section 5?

In an interesting post, Patterico points to language from a Roberts memo endorsing the effects test for section 5 which Patterico claims "contradicts the premise of" my oped by showing Roberts' views that "an 'effects test' made sense for Section 5 but not for Section 2." (Patterico also suggested that I somehow hid this memo which he says contradicts my premise.)

I wish that Patterico's views were correct but I don't believe that they are. On August 2 (the day before my oped appeared), I put up this post with all the documents I relied upon in writing my oped (linking to the documents again on August 3). The language Patterico cites to is all over the documents I posted (see, for example, pdf page 8, of these documents I posted on August 2). These were part of the Attorney General's talking points for why the Reagan Administration opposed the new section 2.

Before explaining why I don't think the language cited by Patterico indicates that a Justice Roberts would vote to uphold a renewed section 5, it is worth pointing out that the argument made by Roberts (we already have an effects test in covered jurisdictions) is misleading at best. Consider again the example of Mobile, Alabama that I gave at the beginning of my oped:

At the beginning of the 1980s, African American voters made up about one-third of the electorate of Mobile, Ala. Studies showed clearly that these black voters preferred different candidates than white voters, but the nature of the electoral system in the city — in which candidates for city commissioner were elected by majority vote throughout the entire city — meant that the candidates backed by blacks were never elected. The two-thirds of the electorate that was white always outvoted the one-third that was black.

African American civil rights organizations sued, claiming that the at-large voting system unconstitutionally "diluted" their votes. But the U.S. Supreme Court disagreed, holding that Mobile's election system did not violate the 14th or 15th Amendments because there was no evidence it had been designed with the intent of discriminating against minority voters.

Mobile, Alabama was a covered jurisdiction under section 5 of the VRA. So why didn't the "effects" test of section 5 require Mobile to change its at-large system? The reason is that section 5's effects test was the very narrow "non-retrogresson" principle, which was meant to prevent backsliding by jurisdictions with a history of discrimination. Covered jurisdictions that wanted to make voting changes needed to get preclearance from the Department of Justice proving that there was no retrogressive purpose or effect. Thus, section 5 only said you could not make the position of protected minority groups worse off.

Because Mobile simply stuck with its old at-large voting system, section 5 did not come into play. Indeed, if Mobile moved from the at-large voting system to create three white-majority districts, it would not have violated section 5 because the change would not have made members of protected minority groups worse off. Under both the old and hypothetical new system, African-American preferred candidates would have no chance of being elected. It took section 2, with its more expansive test for vote dilution, to get Mobile to change its at-large electoral system in the face of racially polarized voting.

Beyond this debating point put forward by Judge Roberts, what does the language tell us about whether he would vote to uphold a renewed section 5? Not what Patterico thinks In South Carolina v. Katzenbach (1966), the Supreme Court by an 8-1 vote upheld the preclearance provisions of section 5, despite the federalism costs, because of the long history of discrimination in covered jurisdictions and because these jurisdictions played all kinds of games to keep their intentionally discriminatory voting systems in place.

But Katzenbach predates the federalism revolution of the Rehnquist Court. As I explained on August 4 in response to a post by Ed Whelan, who pointed to the very same documents that Patterico now points to:

The problem is that Judge Roberts wrote those words in 1982, when there was still ample evidence that jurisdictions covered under section 5 were engaged in intentional race discrimination in voting, and before the "New Federalism" revolution on the Rehnquist Court, making it much harder for Congress to impose requirements (like preclearance) on the states. In part, the problem is that the Voting Rights Act has been so effective that it is hard to find evidence of intentional state discrimination on the basis of race in voting, even if it would reemerge if section 5 were allowed to sunset. I term this the "Bull Connor is Dead" problem in my forthcoming article, Congressional Power to Renew the Preclearance Provisions of the Voting Rights Act after Tennessee v. Lane, 66 Ohio State Law Journal ___ (forthcoming 2005). An updated and revised version of the article will appear in the book, The Future of the Voting Rights Act, edited by Epstein, O'Halloran, Pildes and de la Garza.

In short, then, the answer to Patterico is this: the 1982 Roberts memos show a person who is skeptical of broad federal power in the area of voting rights. The new federalism cases of the Rehnquist Court provide someone with such skepticism a jurisprudential ground to strike down the renewed preclearance provisions as an "intrusive interference" on the rights of covered jurisdictions. He could well write that what was appropriate for 1965 is no longer appropriate for 2005.

One final point. When I write that Judge Roberts opposed a more expansive view of voting rights, that does not mean I think he opposes all voting rights (as some have mischaracterized me as saying). I think he takes a very narrow view of appropriate Congressional intervention to protect minority voting rights. Consider Roberts' defense of at-large voting in documents released last week.

Probably like Judge Roberts, and unlike many in my field, I believe that City of Mobile v. Bolden was correctly decided. That is, the Supreme Court was right not to strike down at-large districts, even in the face of racially polarized voting, as a constitutional violation. To rule otherwise would have enshrined a proportional-like election system in the constitution that could not be changed. But what is inappropriate as a matter of constitutional law is perfectly appropriate as a matter of Congressional statutory lawmaking. Unlike (what I believe to be the position of) Judge Roberts, I believe that the Supreme Court should defer to a congressional determination (if one is made) that preclearance continues to be required to combat intentional discrimination in voting. (For an extended version of this last argument, see chapter 3 of my book.)

"Commentary: There's good reason for paranoia about Voting Rights Act"

Earl Ofari Hutchinson writes this oped.

"GOP accuses newspaper of boosting Casey with ad blitz"

The Philadelphia Inquirer offers this report, with the subhead: "The Democrat's name appears in headlines on mock front pages of the Scranton Times-Tribune on buses and billboards." Thanks to Adam Bonin for the pointer.

"Georgia Map Gets Closer"

Roll Call offers this report (paid subscription required), which begins: "The office of Georgia Attorney General Thurbert Baker (D) is moving closer to submitting the state’s new Congressional boundaries to the Justice Department for review, the final hurdle for the GOP-led mid-decade redistricting effort. Because Georgia falls under the Voting Rights Act, any changes made to representative lines must be preapproved by Justice before going into effect. "

Prop. 77 News and Commentary

Howard Bashman has a nice collection of links here to stories on Friday's California Supreme Court decision to restore Prop. 77, the redistricting initiative, to the ballot. Randy Riddle has some interesting observations (scroll down to "Proposition 77 Notes") on the intermediate appellate court Justice who voted with three California Supreme Court Justices to grant review. This morning the SF Chronicle reports "A deal unlikely on ballot measures; Partisanship driving legislative agenda." Meanwhile, George Skelton writes that "Sacramento is stiffing the counties by not providing money for Gov. Arnold Schwarzenegger's special state election. It's even stiffing California's chief elections officer, Secretary of State Bruce McPherson."

More Post-BCRA Rulemaking on the Way

The FEC is engaged in new rulemaking (post Shavs v. FEC) concerning various aspects of the "electioneering communications" rules. Bob Bauer links to the general counsel's draft and offers some commentary on the draft.

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