Others on the list know much more about this than I, but:
Isn't there an argument that some of the stronger applications of the voting
rights laws to reapportionment have increased the chances of minority
candidates being elected at the cost of effectively reducing their political
clout? Minority voters who vote disproportionately for Democrats may find
that they have elected ethnic minority Democratic legislators who are
ineffective as a result of Republican control of the legislative body.
Mark Scarberry
Pepperdine
-----Original Message-----
From: George Waters
To: election-law
Sent: 9/13/2005 6:48 PM
Subject: Re: More on Judge Roberts' Testimony Related to the 1982 Voting
Rights Act
1. I certainly agree that "we are getting really no explicit
statements from Judge Roberts about his personal views of the benefits
of section 2."
2. But I would think that anyone advising Justice Roberts would
recommend that he not air his personal views about section 2 for the
simple reason that it would be very difficult at that point to refuse to
air his opinions about sections 3 through 100,000 of whatever code. Not
that I feel good about this, but this appears to be the way this game
is played. If he offered any criticism of section 2, however nuanced,
the nuances would be lost for purposes of the public debate.
3. In the unlikely event that anyone on this list were nominated for
the Supreme Court, would anyone offer his/her personal views on the the
benefits of section 2? To do so seems to be fulfilling a death wish.
George Waters
2600 Kadema Drive
Sacramento, CA 95864-6900
bokarie@sbcglobal.net <mailto:bokarie@sbcglobal.net>
916/483-6367
916/483-7033 (fax)
----- Original Message -----
From: Rick Hasen <mailto:rick.hasen@lls.edu>
To: election-law <mailto:election-law@majordomo.lls.edu>
Sent: Tuesday, September 13, 2005 4:57 PM
Subject: More on Judge Roberts' Testimony Related to the 1982 Voting
Rights Act
More on Judge Roberts' Testimony Related to the 1982 Voting Rights Act
Here is the relevant language from a transcript (see here
<http://www.nytimes.com/2005/09/13/politics/politicsspecial1/13text-robe
rts.html?pagewanted=82> and continuing to the next page) of a
discussion between Judge Roberts and Senator Feingold (there are clearly
some things missing or garbled in this transcript, but you can get the
gist):
ROBERTS: Senator, my personal view of the Voting Rights Act is
not somebody was interested in. You have people who serve on your staff,
and their job is to help you implement your views as a senator.
FEINGOLD: I'm not questioning what your view was then...
ROBERTS: I'm just saying...
FEINGOLD: ... I'm asking what you think now, having -- this is
pretty settled area; I think you'd agreeing -- having seen all this,
having been intimately involved in it, knowing it as well as you do, do
you believe that the intent test was still the more appropriate standard
by which to evaluate vote dilution claims?
ROBERTS: Senator, I haven't studied the Voting Rights Act to
determine whether the intent test or the effects test would have
different results in different cases under section two. I'm in no
position to make a judgment on that.
FEINGOLD: It would be my sense that you would be a person who
would, with your enormous abilities and background, to have some sense
about that. Obviously, understand that requiring a voter to prove any
additional factor makes it harder for the voter to win the case and that
to prove the intent of an entire legislative body can be very difficult,
especially when a voting system was put in place many years ago,
requiring African Americans, Latino voters, many of whom have had
limited financial resources, to find evidence of intent was adding an
enormous hurdle for them to overcome.
In the Mobile v. Bolden case itself, which was pursued after the
Supreme Court's decision in 1980 and before Congress amended the law in
1982, makes it very clear, I think clear to all of us over the years,
how difficult that standard was.
African Americans from Mobile, Alabama, had been unable to elect
any candidates to the position of city commissioner for every election
cycle for something like seven decades. They challenged the method of
electing city commissioners that allowed the same majority to choose all
the commissioners all the time in at-large elections, and the evidence
was very clear that as a practical mater, although African Americans
could register and vote, they couldn't elect anyone.
But to get relief under the Supreme Court standard, which you
appear to have supported, they had to go to enormous effort and
financial expense to prove discriminatory intent, including hiring a
historian who could piece together the motivations of city officials who
had designed the electoral system almost 100 years earlier.
In this situation, the administration was not bound by a Supreme
Court decision in deciding what position to take on the proposed Voting
Rights Act amendment. So why at that point did you want to make section
two cases so difficult to prove?
ROBERTS: Senator, you keep referring to what I supported and
what I wanted to do. I was a 26-year-old staff lawyer. It was my first
job as a lawyer after my clerkships.
I was not shaping administration policy. The administration
policy was shaped by the attorney general, on whose staff I served. It
was the policy of President Reagan. It was to extend the Voting Rights
Act without change for the longest period in history at that point. And
it was my job to promote the attorney general's view and the president's
view on that issue. And that's what I was doing.
FEINGOLD: I recognize that. What I'm trying to figure out is,
given the fact that you've followed this issue for such a long time, I
would think you would have a view at this point about whether you were
right about -- or the department, let's say, since you were working for
them -- whether the department was right on seeking to keep the intent
test or whether time has shown that the effects test is really the more
appropriate test.
ROBERTS: Well, Senator, I haven't followed the issue of the
particular litigation. I had involvement in some litigation when I was
in the Solicitor General's Office in which we were effective in proving
violations under the Voting Rights Act.
Many of those cases arose under issues under Section 5 -- pre-
clearance issues -- and not under Section 2. I, as a judge, had a case
-- a three-judge district court case -- again arising under the
pre-clearance provisions. But I'm certainly not an expert in the area
and haven't followed and have no way of evaluating the relative
effectiveness of the law as amended or the law as it was prior to 1982.
FEINGOLD: Well, with all respect, and I realize I should move on
to another topic, but it just seems how strongly you stated some of
these memos -- and I understand you were doing your job -- I would think
you'd have a view today whether or not those strong statements still
make sense.
The point appears to be that Judge Roberts was given a chance to declare
section 2 a success (see the sources cited in Lowenstein and Hasen,
Election Law at page 208---noting, inter alia, the post 1982 75% success
rate in challenges to at large voting districts), as most people believe
it now is, and he declined to do so. At the same time, he sought to
distance himself personally from the views in the memos. So we are
getting really no explicit statements from Judge Roberts about his
personal views of the benefits of section 2.