It is also possible that the Court could be interested in avoiding a
decision on the constitutionality of a statute that was passed by a
narrow margin, due to the possibility that a change in Congress could
lead to repeal of the statute, which would then make a decision
unnecessary. I suppose that such an avoidance approach could skew the
statistics by causing a lot of the statutes that are held to be
unconstitutional to be those that were passed by large margins.
Mark S. Scarberry
Pepperdine University School of Law
-----Original Message-----
From: owner-election-law_gl@majordomo.lls.edu
[mailto:owner-election-law_gl@majordomo.lls.edu] On Behalf Of Smith,
Brad
Sent: Thursday, July 20, 2006 12:11 PM
To: election-law
Subject: RE: VRA update
If one thinks of many provisions of the Constitution as intended to
protect minority rights, or to limit government action, I can see strong
theoretical support for suggesting that a bill passing congress by large
margins is more likely to be unconstitutional than one passing by a
narrow margin.
Personally, I doubt very much that the Court will find the VRA
unconstitutional.
Brad Smith
________________________________
From: owner-election-law_gl@majordomo.lls.edu on behalf of Marty
Lederman
Sent: Thu 7/20/2006 12:07 PM
To: David Becker; election-law
Subject: Re: VRA update
Oh, don't get me wrong: I'm not remotely suggesting either that Boerne
was rightly decided, or that the next VRA case won't be distinguishable.
I was simply pointing out, as did Sam, that the Court could not care
less how overwhelming the vote in Congress was. Indeed, there might
even be a slight (and unfortunate) assumption by the Court that
overwhelming consensus is a signal of grandstanding and symbolic
legislation -- or proof of a too-powerful national legislature
insensitive to the interests of the states and willing to run roughshod
over them.
I am not approving such a view. Still, it is striking that, come to
think of it, virtually all of the statutes the Court has invalidated on
federalism grounds in the past 14 years have been enacted by
overwhelming majorities. There are probably exceptions, but none leaps
to mind right now from the statutes at issue in this list:
New York;
Printz;
Seminole Tribe;
Florida Prepaid;
College Savings
Lopez;
Morrison
Boerne;
Kimel;
Garrett
----- Original Message -----
From: David Becker <mailto:dbecker@pfaw.org>
To: election-law <mailto:election-law@majordomo.lls.edu>
Sent: Thursday, July 20, 2006 11:00 AM
Subject: FW: VRA update
Great point, though Kennedy also points out in that case that
there was no record of religious discrimination at all which would
justify RFRA, and pointed to the VRA as an example where Congress looked
at ample evidence of discrimination.
David J. Becker
Senior Attorney
People for the American Way Foundation
2000 M Street, NW, Suite 400
Washington, DC 20036
(202) 467-2360 -- Direct
(202) 293-2672 -- Fax
dbecker@pfaw.org <mailto:dbecker@pfaw.org> -- www.pfaw.org
<http://www.pfaw.org>
________________________________
From: Marty Lederman [mailto:marty.lederman@comcast.net]
Sent: Thursday, July 20, 2006 10:50 AM
To: David Becker
Subject: Re: VRA update
"does anyone know of any circumstance where the Court has held a
statute with this level (approximately 90%) of Congressional support to
be unconstitutional?"
Ninety percent is nuthin'! RFRA: Passed unanimously in the
House; 97-3 in the Senate. But see Boerne.
----- Original Message -----
From: David Becker <mailto:dbecker@pfaw.org>
To: election-law <mailto:election-law@majordomo.lls.edu>
Sent: Thursday, July 20, 2006 9:28 AM
Subject: RE: VRA update
With all the hand-wringing going on about the upcoming
legal challenge to the VRA reauthorization, I wanted to make just one
brief point. There seems to be some sense that the upcoming legal
challenge to the reauthorization is a new threat. However, everyone, on
all sides of the debate, has known since the beginning that a challenge
would be coming, regardless of the language in the bill, and everyone,
on all sides of the debate, has known since the beginning (or at least
since Alito replace O'Connor) that Justice Kennedy will likely be the
final arbiter on its constitutionality. Even if the bill had read
exactly as some of those who testified against the current bill had
suggested (and while many criticized the bill, very few offered any
concrete suggestions on language to correct what they viewed as
problems, Rick Hasen excepted), there would be warnings about the
constitutionality, and yet another bloc of individuals who would be
warning that Justice Kennedy will ult!
imately decide the issue. The Thernstroms and Cleggs of the world
would be calling for a challenge (and perhaps taking part in a
challenge) even if the bill was such that it satisfied every single VRA
supporter on this listserve (if such a mythical bill could exist).
Everyone involved with this debate is prepared for the legal challenge
they knew would be coming, and while that does not mean that anyone is
counting their chickens, or thinks this will be an easy fight,
supporters of the VRA I'm sure are ready. They will have the support of
the White House, 90% of the House, and likely a similar percentage of
the Senate. On a related note, does anyone know of any circumstance
where the Court has held a statute with this level (approximately 90%)
of Congressional support to be unconstitutional? I can't think of one,
but that doesn't mean it hasn't happened.
David J. Becker