Hasen: Why Bother Trying to Fix Section 5?

In a thoughtful and provocative post on the VRA renewal debate, Heather Gerken asks a provocative question: "If the deal is going to go through regardless of what a few academics think about its merits, why allow the perfect to be the enemy of the good?"

I think there are a few reasons to engage in this debate.

1. Perhaps Heather is closer to the politics than I am, but I am not convinced that the chances of getting at least some improvement on the current bill are nil. It could be, for example, that when Sen. Judiciary Committee chairman Specter hears that many leading academic voices (though certainly not all) have serious questions about both the constitutionality of a renewed section 5 and about the wisdom of certain details of "the deal," he could push for some changes to the bill.

2. The idea that the deal should just go through as is and the country should "roll the dice" on preclearance is riskier than those who support this strategy have let on. The risk is portrayed as merely that section 5 in its current form is struck down, and then Congress goes back and writes a law to meet the Supreme Court's "congruence and proportionality" standard. But there's a bigger risk. The precedent that such a Supreme Court holding could set could endanger the constitutionality of section 2 of the Voting Rights Act as well (a much more important provision of the Act at this point), as well as other civil rights laws. I am quite concerned with what the Roberts Court could do if Congress gives them a beautiful pitch right over home plate. At the very least, people who support the deal should acknowledge the serious risks.

3. As academics---particularly those of us with tenure--we have an opportunity to offer frank analysis that others cannot do. Case in point: I have heard from many people privately in the voting rights community who agree with my analysis of the potential constitutional problems with "the deal" but who do not want to publicly be associated with that position. If we don't speak up, no one will.

4. The sunset provision of section 5 for academics is a great opportunity to take stock and analyze the law, an opportunity that is being lost as "the deal" goes through. Indeed, it would be a good thing if many major pieces of legislation had sunset provisions, so that these debates can go forward. Ideally, this debate should occur in Congress; but if Congress won't do it, we should.

Next week I want to talk in more detail about ways to fix the bill that aren't dealbreakers. In particular, I want to talk about how enhanced proactive bailout could potentially offer a way around the constitutional problems I have raised. I also want to write more about the issue of allowing appeals both from bailout decisions and from regular preclearance decisions.

More Denniston on the Maine Campaign Finance Case

In response to my post on the Maine campaign finance case (linking to his earlier post on the same case), Lyle Denniston of SCOTUSblog emails along the following comments:

Thanks for linking to my post on the new electioneering comm. case, and thanks for providing a link to the juris. statement.

I note you suggest the Court will not take the case at this point, and that you expect the Court to deny a request for a prelim. injunction.

A couple of things to note:

There is no request here for a preliminary injunction; this is a direct appeal, on the merits, and the Court can only act on it with full Court consideration. This is not a request to a single Justice (here, it would be CJ Roberts), as it was when WRTL was denied a prelim. inj. pending appeal by Rehnquist in September 2004.

The Court does not have the option of simply denying review. It must either note jurisdiction, and proceed to decide the case on the merits; or, if it could muster five votes, it could act summarily -- but the only summary options open to it are to affirm the DCt or to reverse it. Since an affirmance would be to decide an issue that the Court, in the WRTL case, has sent back to DCt to try), it may be doubtful that the Court wants to do that summarily. It could dismiss, again it would take five votes to do so, either for want of jurisdiction (but, since it took the WRTL case, it clearly has jurisdiction over these kinds of cases under BCRA), or it could dismiss it "for want of a substantial federal question," or dismiss without saying why. But the summary decision in WRTL on January 23 made it quite clear that the Court thinks there is a substantial federal question in as-applied challenges on this part of BCRA.
If there is another way it can brush it aside, and perhaps one might be devised, I frankly do not know what it would be.

Bopp's request for expedition, as he notes in the juris. statement, is to note jurisdiction, to expedite the appeal, have only one round of briefing, and rule on the merits. He probably would be content with a prelim. injunction, because the League could then go ahead with its ads between now and the Maine primary next month, but he did not ask for one, presumably because granting it would essentially decide the case his way, and the Court very likely is not inclined to do that, and denying it would take the ads off the air up through the primary. It looks to me as if he has done the most he can to maxmize the League's chances of getting some resolution.

Regards,
Lyle

These are interesting procedural points. I suppose then what i would expect, consistent with my earlier post and with the points Lyle has just made, is a summary affirmance, perhaps with one or more justices concurring with a statement that the issue will soon be back before the court.

Carney on 527 Reform

Eliza Newlin Carney's Rules of the Game column for National Journal discusses the risk that the GOP is taking by including 527 reform in the lobbying reform package: She writes that "the GOP 527 strategy is controversial, risky and politically weak. The immediate risk is that GOP leaders, by pushing what amounts to a big government bill, will aggravate rising tensions within the Republican coalition. Already, an influential group of conservative activists has banded together to lobby aggressively against 527 restrictions."

"More Racial Gerrymanders"

Stuart Taylor writes this provocative National Journal column on VRA renewal. It begins: "When conservative Republicans such as House Speaker Dennis Hastert and Senate Majority Leader Bill Frist jointly sponsor Voting Rights Act amendments with such liberal Democrats as Rep. John Conyers and Sen. Edward Kennedy, be suspicious."

Two more snippets:

As for the Republicans, they are terrified of being characterized as racists if they oppose anything that carries the :voting-rights" label. Such demagoguing works because most Americans don't understand that this legislation is not mainly about the basic right to cast a meaningful ballot -- which is secure -- but about mandating safe seats for incumbents and other minority politicians.

Second, many Republicans also believe -- perhaps incorrectly -- that drawing so-called "majority-minority" urban districts for black and Hispanic Democrats will "bleach" the surrounding suburban districts and thus help Republicans beat white, moderate Democrats there. That was the result of the racial gerrymanders of the 1990s: The number of (very liberal) black and Hispanic Democrats in the House went up; the number of (more moderate) white Democrats went down -- and this helped Republicans take and keep control of the House. This was good for black and Hispanic politicians. It was not so good for black and Hispanic voters.

And:

Once Democrats win the presidency, they will have the motive, the means, and the opportunity to stick it to Republicans by manipulating the Justice Department's enlarged power over state and local voting rules in the nine covered states -- all of them red. And Democrats have become more adept since the 1990s at creating fairly safe seats for black and Hispanic Democrats without making the adjacent suburban districts safe for Republicans.

"Bid to end bilingual ballots gets scant support"

Dena Bunis writes this column in the OC Register on last week's falied attempt to amend section 203 of the Voting Rights Act in the House Judiciary Committee's consideration of the VRA provisions coming up for renewal.

Posted by Rick Hasen at 06:32 AM

United States Commission on Civil Rights Issues Report on VRA Section 5 Reauthorization

You can find it here. The Commission did not make any recommendations regarding the scope of VRA renewal, prompting two commissioners (Yaki and Melendez) to dissent and one (Thernstrom) to issue a concurrence. These latter documents (appearing near the end of the 108 page pdf) make for some interesting reading.

Pitts: Connecting Ashcroft with Bossier II?

First off, thanks to Rick for providing this forum. As Heather and Dan and Rick's posts make clear, this is a most useful venue for thought-provoking discussion. At the moment, though, I'd like to move us away from Dan and Rick and Heather's discussion of the schism between academia and the civil rights community and instead focus on the portion of the extension bill that reverses Georgia v. Ashcroft.

There are certainly plenty of reasons that have been proffered both for and against reversing Ashcroft. Some of these reasons relate to the continuing constitutionality of Section 5, other reasons relate to the great debate over which is better, substantive or descriptive representation, and still other reasons relate to the debate over clear rules versus fuzzy standards (and the closely related possibility that Ashcroft's fuzzy standard allows for more partisanship in DOJ's administration of Section 5).

On this latter point, I'd like to toss out the following intentionally provocative question to think about: If a problem with Ashcroft is that it does not provide a clear rule for DOJ to administer, isn't the lack of a clear rule for DOJ to administer also a reason not to reverse Bossier Parish II? Put differently, isn't unconstitutional discriminatory purpose a murky totality of the circumstances test in the same vein that Ashcroft is a murky totality of the circumstances test?

Of course, there could be some basic distinctions to be made. For instance, one might argue that there is more precedent (both from DOJ objections and federal court decisions) in the realm of unconstitutional discriminatory purpose and that these precedents will serve to cabin discretion by DOJ. One might also argue that the benefits of objecting to changes that are unconstitutionally discriminatory in purpose far outweigh the costs of using a murky standard. Perhaps these distinctions (and there are sure to be others) are ultimately convincing. But, at least at first blush it would appear that the consequence of reversing both Ashcroft and Bossier II is that Section 5 will continue to contain a murky totality of the circumstances standard that could give partisan politicians the ability to act like, well, partisan politicians.

Lest this post be misunderstood, I'd like to make clear that I think it makes sense and is eminently defensible for Congress to reverse Bossier II. I'm merely wondering out loud whether the same argument about clear rules and murky standards that has been used to criticize Ashcroft could apply in the context ofBossier II.

More on Ashcroft to come...

-Mike Pitts

Two More Law Professors Join as Guest Bloggers on VRA Renewal

Sam Issacharoff and Mike Pitts have agreed to participate in my guest blogging experiment on VRA renewal. Sam and Mike have engaged in an interesting debate over the future of Section 5.

-- 
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
  

-- 
Rick Hasen 
William H. Hannon Distinguished Professor of Law
Loyola Law School 
919 Albany Street 
Los Angeles, CA  90015-1211 
(213)736-1466 - voice 
(213)380-3769 - fax 
rick.hasen@lls.edu 
http://www.lls.edu/academics/faculty/hasen.html 
http://electionlawblog.org