<x-flowed>I agree with Rick Pildes' remarks below.  I was surprised to see my name among those David Becker lists as having argued that the current VRA reauthorization bill is constitutional.  Although I support reauthorization, I have not weighed in on its constitutionality, as I am not competent to do so.

Chandler Davidson

X-Original-To: fcd@mail2.mail.rice.edu
Delivered-To: fcd@mail2.mail.rice.edu
Delivered-To: fcd@rice.edu
Date: Fri, 23 Jun 2006 19:45:54 -0400
From: "Rick Pildes" <PILDESR@juris.law.nyu.edu>
To: <david.j.becker@comcast.net>, <election-law@majordomo.lls.edu>
Subject: RE: Electionlawblog news and commentary 6/23/06
Sender: owner-election-law_gl@majordomo.lls.edu
X-DSPAM-Result: Whitelisted
X-DSPAM-Processed: Fri Jun 23 19:04:24 2006
X-DSPAM-Confidence: 0.6164
X-DSPAM-Probability: 0.0000
X-DSPAM-Signature: 449c818816316163845084

Content-Type: text/html
Content-Transfer-Encoding: 8bit
Content-Description: HTML

I've been involved with this listserv since its inception.  One of its defining virtues is that it is the kind of forum all too rare these days: it promotes responsible, serious, well-informed policy and legal analysis.  Complex issues are dealt with in the complexity they warrant, rather than reduced to simplistic soundbites to be turned into fodder for polemical and political argument.  That fact is why so many of us have participated for many years in this particular forum.  The shining moment in the history of this list, for many of us, was the 2000 election dispute, when during the most charged moment in recent American law and politics, this list consistently served as a source for concise, reliable information and analysis.

David Becker's most recent post, along with some other posts recently, prompts these comments. First, the most basic problem of a purported list of those who think the bill "is" constitutional or "is not" constitutional is that most sophisticated constitutional lawyers do not think or write in such simplisitic terms to start with, unless they are acting in an advocacy mode.  We know that there are constitutional questions inevitably presented by an extension of Section 5; we know that the constitutional law too uncertain and in flux to yield clear yes or no answers; and many of us have talked about ways that increase or decrease the likelihood that the Court will uphold a renewed Section 5.  Second, David's post is cavalierly inaccurate, about my views and those of others, on extremely important issues.  I have never said I believe renewing Section 5 of the VRA, even in the form the current bill proposes, would be unconstitutional.  Indeed, I have been careful not even to express a view on what the constitutional standard is by which I believe the Court will assess that question, since I have not yet come to a settled conviction on that question.  Instead, I have said that there are inevitably serious constitutional questions that a renewed Section 5 must face, and I have suggested certain ways Section 5 could be structured that would minimize those questions.  I think the same is true of Rick Hasen ÷ or of Nate Persily ÷ or of Sam Issacharoff ÷ or of others that David purports to put into some simple cubbyhole.

I hope we can maintain the high standards and the focus on substance that has been the wonderful and rare characteristic of this listserv.









Richard H. Pildes
Sudler Family Professor of Constitutional Law
Co-Director, NYU Center on Law and Security
NYU School of Law
212 998-6377

!DSPAM:449c818816316163845084!

</x-flowed>