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