Friday, February 4, 2011

The End of the Voting Rights Act . . . Again?

In case we haven't had enough excitement lately, here comes the latest from the federal courts: a few days ago, a federal judge held oral arguments on the Shelby County case. This is the latest in a long line of cases challenging the constitutionality of the Voting Rights Act.  Coming on the heels of Citizens United and the upcoming constitutional challenge to the health care law (just yesterday, Virginia's attorney general asked SCOTUS to review the constitutionality of the law on an expedited basis), what are the chances that the Court inserts itself into these policy debates?

The odds cannot be very good.  But the lessons are inimitable.

Here's is what we know: on race, The Chief Justice tells us that the way to stop racial discrimination is to stop discriminating on race. Justice Alito agrees.  And we also know that Justices Thomas and Scalia have a similarly simplistic, if historically flawed, position on race and the Reconstruction Amendments.  On the other side, four left-of-center justices view the VRA as a necessary instrument in the fight against racial discrimination in voting.  And in the middle, unsurprisingly, we find Justice Kennedy. The question for the future is whether we get the Justice Kennedy of Miller v. Johnson and Grutter or the Kennedy of LULAC.  These are two different Keneddy's, needless to say.  The old Kennedy could not hide his disdain for the use of race by the state.  He left no doubt about what his policy preferences were.   The new Kennedy seems to hold a far more nuanced and complex position on race.  That is, the new Kennedy seems closer to Sotomayor than the Chief Justice on race.  

The case is now in front of Justice John D. Bates, a federal judge for the U.S. District Court for the District of Columbia. According to recent accounts of the oral argument in the Shelby County case, the judge raised critical questions about the Act and particularly its coverage formula.  For example, he said: "We're now looking at a situation where that information is at least 45 years out of date, and by the time the 2006 extension of the Voting Rights Act runs its course it will be 70 years." He then asked counsel, "That wouldn't seem to be a current coverage formula, would it?"

That would be an understatement.  It would also be a misleading question.  The constitutional question is not whether the coverage formula is old or new (or borrowed or blue).  The question will be one of deference.  This is the most basic question in all of constitutional law.  Who decides whether a problem remains in the the area of voting?  Should a federal judge decide that the VRA is still a necesary remedy for centuries of discrimination, or should Congress? Is it up to a federal court to decide whether th evidence proffered by Congress is enough in order to justify the Act?  And if federal judges decide to follow this path, how much evidence is exactly enough?  Lengthy Senate and House reports (with appendices) followed by a thousand pages in the Congressional record?  And how about a link to wikipedia AND a youtube video to boot?

We should ask our conservative friends what they think about these questions.  We will even let them invoke Bickel and Kurland all they want.  Even Hayek.  Call it a bonus.

Back to Judge Bates: anybody wants to take a guess as to who appointed the judge?  Sadly, here is all the information necessary: he was critical of the VRA and its coverage formula.

He was appointed by President George W. Bush.

Final question: Is there anybody left in the world who believes the "law" will have anything to say about this?


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