Perhaps the way the substantive standard is written is that it's intended to
be severable.  In other words, if the Court decides that Section 5 would be
unconstitutional if Bossier II is reversed (and Scalia hints in Bossier II
that it might be), then the Court can strike subsection (c), but that will
still preserve the intent to retrogress framework from (b).  With the same
going for subsection (c)--that if the Court decides that Section 5 would be
unconstitutional if Georgia v. Ashcroft is reversed then Section (b) serves
to preserve the post-Georgia retrogression standard.

Best,
Mike

Visiting Assistant Professor
University of Nebraska College of Law
P.O. Box 830902
Lincoln, NE 68583-0902
402-472-1251
mpitts3@unl.edu 

-----Original Message-----
From: owner-election-law_gl@majordomo.lls.edu
[mailto:owner-election-law_gl@majordomo.lls.edu] On Behalf Of Mark & Franca
Posner
Sent: Wednesday, May 03, 2006 12:32 PM
To: Rick Hasen; election-law
Subject: Re: VRA Renewal Battle Coming

I agree that sections 5(b), (c), and (d) are less than transparently clear 
and completely direct in stating a "purpose or effect" standard that 
encompasses a reversal of Bossier II and Ashcroft.  Section 5(b) sounds a 
lot like "purpose to retrogress" though perhaps 5(c) in combination with the

findings gets you back to the pre-Bossier constitutional purpose standand. 
Section 5(d) indicates that something different from Ashcroft is intended, 
though it may not be clear whether that something is simply the pre-Ashcroft

approach.  Also, whle the focus on whether minority citizens may elect their

preferred candidates is a focus that is relevant to most potential 
objections (those dealing with redistrictings and election method changes), 
it is not really the focus in some (e.g., polling place changes).   I wonder

whether all this ambiguity is thought to serve some purpose or is it just a 
case of too many legislative cooks being involved in preparing this brew?

Lastly, it should be noted that this legislation, if adopted this year, 
would extend Section 5 (and the observer authorization) to 2031, while 
extending Section 203 to 2032.  There wouldn't seem to be any policy reason 
for this, so it must be something that the drafters overlooked.

Mark Posner