Redistricting, Once Again, Comes to Court

We had a census. We had new districting maps. And now, like death and taxes, we have litigation. To date, redistricting-related suits have been filed in 28 states. To Justin Levitt, “[t]he sheer volume of litigation is pretty amazing.” In so doing, these legal challenges are “giving the courts, once again, a major role in drawing districts that could help determine the balance of power in Congress for the next decade.” 

Should anyone be surprised by this? 

The real question in all of this is what role the federal courts should play in this mess. The conventional wisdom ascribes to the courts the role of countermajoritarian saviors, saving the American voter from self-serving, entrenched politicians. Theories and standards abound, and come in all shapes and sizes, for how the courts should handle these questions. But this is very deceptive; easy answers are nowhere to be found. 

Arizona Files Suit Challenging the Voting Rights Act

The State of Arizona has filed a lawsuit challenging the Voting Rights Act.  The State argues that the Act is unconstitutional and that the State bears a significant burden in complying with the Act.  Luis and I are finishing an article on the Voting Rights Act.  In our view, the likelihood that the Court will strike down the Act is significant.  A few years ago, Texas challenged the Act, the Court ducked the question but signaled very strongly its view that the Act is on shaky constitutional grounds.  The only real question is whether the Court dare strike down one of the most iconic statutes ever passed by Congress.

The End of the Second Reconstruction

In her Times column from last week, Linda Greenhouse asked "is anyone watching?" This question was in reference to the looming constitutional debate over the constitutionality of the Voting Rights Act.  She argued -- correctly in my view -- that the Court is gearing up to strike down the special provisions of the VRA.  Yet no one seems to be paying attention. Three issues from her essay caught my attention.

The first is the notion that the Court will not be able to escape ruling on the constitutionality of the act this time around.  In the earlier NAMUDNO case, the court offered an idiosyncratic and novel reading of a key provision of the VRA.  In so doing, the Court was then able to dodge the constitutional question.  According to Greenhouse, however, "[t]here appears to be no convenient off-ramp" in the new case.  But this is not quite right.  For one, there appeared to be no such ramp in NAMUDNO and yet the Court was able to create one.    This is in line with how the Court has historically interpreted the statute.  The Court has essentially used the statute as a jumping off point to do whatever it is the court wants to do with the Act.  NAMUDNO was no different in this regard.  

Furthermore, the way the Court dodged the earlier constitutional challenge has a Bickelian flavor to it, in the sense that the Court was simply looking for a prudential way to set the question aside for the future.  This is to say, the real question is why the Court chose to set aside the issue in NAMUDNO, and not the fact that it did.  In the next case, one can easily see the Court invoke the "passive virtues" to set aside the challenge.  The Court will decide this question when it is good and ready, and not a moment before.

The second issue is one how Greenhouse struck at the heart of the debate over the continued vitality and constitutionality of the VRA.  She put the point the following way: 

The new briefs were submitted last week. Where one side sees sufficient progress to render Section 5 obsolete, the other sees continued racial polarization and strategies that, while not physically keeping black voters from the polls as in the past, serve to dilute impact of black and Latino votes. The two sides remain far apart on which facts about voting patterns are relevant and on how those facts should be weighed. The answers to those questions, almost certainly, will come eventually from the Supreme Court.

I think this is exactly right, up until the last sentence.  This is clearly a question about which both sides disagree, and vehemently so.   The question for us is why the Supreme Court is the one institution that should decide such questions.  I don't have a good answer, and neither does greenhouse.  She simply assumes the answer away, as do most of us.  And that is unfortunate. 

The third issue is one that I have been thinking about for quite some time.  Greenhouse hints at it, though this is more than commentators are often willing to do.  The question is whether we are witnessing the beginning of the end for the Second Reconstruction.  Greenhouse raises this question by way of Justice Scalia's concurring opinion in Ricci v. DeStefano, a Title VII employment discrimination case.  Is the entire civil rights edifice now open to constitutional attack?  I have raised this question in the past, and the answer is usually that these statutes now form part of the fabric of our nation and are safe from constitutional challenge.  They are, in a word, super-statutes.  

Needless to say, we are about to find out if this is so.  I am not optimistic.

Turning the Voting Rights Act on its Head?

Florida's Republican governor, Rick Scott, is using the Voting Rights Act's preclearance requirement to delay implementation of a voter-approved initiative that bars partisan gerrymandering.  And voting rights activists are not happy.  According to Laughling McDonald, director of the ACLU's Voting Rights Project in Atlanta., "This is a bizarre situation. It turns the law on its head." This is because the Governor is using a remedial law to stall a reform effort.  Similarly, says Rick Pildes, professor of law at New York University, "This is extraordinary. I've never seen anything like it." . . .  "The governor is essentially using a federal law obligation that binds the states to attempt to avoid enforcing a state law that he apparently would prefer the state had not adopted."

I am not sure I follow.  Is the critique that this is not a covered change? Or is it that the law in question has neither a purpose nor will it have the effect of denying or abridging the right to vote on account of race or color? Or, worse yet, is it that the governor's heart is in the wrong place?

I don't know enough about the political background of this law, or its application, but we know this much: in light of Allen v. Virginia Bd. of Elections, can anybody safely say that any change in matters of election is not covered by the preclearance requirement?  Further, and in light of the denial of preclearance by the Department of Justice in LaRoque, a case where the reform in question was a voter-approved referendum was a change from partisan to non-partisan city council elections, could anybody be sure whether a change, no matter how non-racial it might appear to be, does not run afoul of the preclearance standard?

Or else, do we really want to start looking into the motivations of state actors who submit laws for preclearance?

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.

The Village of Port Chester, Latinos and Cumulative Voting

The Village of Port Chester has a population of nearly 30,000 people, half of whom are Latino. But Latinos are only 20% of the voting age citizenry, so they had never elected one of their candidates of choice to the village Board of Trustees.  The Department of Justice sued in 2006 under the Voting Rights Act, and a federal judge agreed that the Village's at-large voting system deprived Latinos of fair representation.  In response, DOJ pushed for the creation of single member districts, while the village preferred a cumulative voting system.  This is a system where all voters receive multiple votes, which they may cast on any candidate they want, and can even cast them all on one candidate if they wish.  The federal judge sided with the village and ordered use of the cumulative voting system.

Yesterday, the election finally took place, and a Latino finally broke through and won election to the village board.  The candidate, Luis Marino, received the fourth highest number of votes from among 13 candidates.  The lessons of this election, and the process that led to Mr. Marino's election, are many.

Are We Witnessing the Beginning of the End for the Voting Rights Act?

 From the time the landmark Voting Rights Act of 1965 became law in 1965, critics have challenged it on constitutional grounds.  Critics complained then that the Act was beyond the powers of Congress, an illegitimate affront to states’ rights and principles of federalism, as well as arbitrary in its coverage.  Months after its passage, the Supreme Court upheld the constitutionality Act; only Justice Black accepted these arguments as applied to the application of the Act to the southern states. 

Through the years, the dissents have grown louder and stronger.  In the Namudno case, decided last June, the Supreme Court made clear that the Act is on borrowed time.  During oral arguments, the conservative wing of the Court voiced its reservations about the constitutionality of the law; and writing for himself and seven other justices, Chief Justice Roberts could hardly hide his contempt for the Act.  When the Court decided the case on statutory grounds, it was only postponing the inevitable.

The question at the heart of the constitutionality of the VRA is easily stated: Is this a world where racial discrimination continues to exist, or have we reached a state of affairs where the Act is no longer a justified intrusion into state affairs?  Too often, discrimination is in the eye of the beholder.  We know how Congress decided this question, when it extended the special provisions of the Act in 2006 for the next 25 years.  In fact, a big part of the hearings were spent focused on this particular question.  The signals from the Court suggest that its conservative wing is not similarly persuaded.

The upcoming challenge to the constitutionality of the Voting Rights Act will not be decided by law as commonly understood, but by the justices’s own visions of the world.  To be clear, this is not a development new to the Roberts Court.  From the moment the justices first upheld the constitutionality of the Act in the Katzenbach cases, the question has been one of judicial will and the justices’ willingness to defer to the findings of Congress about the existence of racial discrimination in American society. This has been true through the years and remains so to this day.  In case after case, from Georgia v. United States to City of Rome to Monterey County, the Court has deferred to the findings of Congress on this complex question.  Whether the Court continues this pattern of deference is the question for the future.  We know where Justice Stevens stood on this question.  It is hard to conclude with any degree of confidence where Elena Kagan stands; and the few data points we do have do not inspire much confidence.  In fact, they make anybody who is serious about the state of civil rights in America "uneasy". 

The Future of Majority Minority Districts

Last Friday, Duke Law School hosted a conference on the future of redistricting in the United States. The last panel of the day debated the future of the majority-minority district. However one comes out on that question -- whether these districts are either necessary or no longer needed, even unconstitutional -- should be informed by the successes and failures of James Fields, a black representative elected by a southern white electorate, and J. Raymond Jones, Harlem's longtime political boss.

In a recent post, Guy posed two questions in response to Mr. Fields' experience representing a southern white constituency: What is the cost to black elected officials of running in white districts in the South; and, is the case of Mr. Fields proof of the declining need for majority black and Latino districts? In his post, Guy examined the first question. In this post, I explore the second.

Mr. Fields ran for office in Cullman County, a county of 81,000 people yet only 401 blacks. This is the county known in Birmingham, Alabama as "the racist white bigot county." This is also the same Alabama where 88% of whites voted for John McCain over President Obama in the last election. This is a figure that David Bositis, a well known political analyst for the Joint Center for Political and Economic Studies, attributes, "all of it to racial bias."

In sum, this is not only not a majority black district, but as far from it as an electorate can be. Yet Mr. Fields won election with 59% of the vote, a remarkable figure by any metric. This raises the immediate question of, how was he able to do it?

As the article illustrates, Mr. Fields personalized the election. He broke down "the traditional Southern political narrative." Accordingly, he was not a black candidate, he was a Southern candidate. For example, he does not have an office in the county, but rather, "he comes to you. Most of the county seems to know his cellphone number." He is a black man only until he starts talking to his constituents, "whereupon he really seems just like another Southerner." Most telling are the words of one Rickey Peek, a used-auto-parts dealer who watches Fox news, listens to Rush Limbaugh and hates President Obama. Here is what Mr. Peek has to say about Mr. Fields: "James is not like any black man that I know. He’s just different. He just don’t have that mentality, anybody owes him anything. He just gets out and works and helps people, earns what he gets. If James wasn’t black, you’d think he was white. That doesn’t sound right, but you know what I mean."

What this means, according to Wayne Flynt, a retired Auburn historian, is that "personalism can trump racism." This is also the view of Congressman Arthur Davis, who says that in the Alabama of today "race is not an insurmountable obstacle." In fairness, this view is not universally shared. But the election of Mr. Fields is no less significant. It is nothing short of remarkable.

Standing alone, Mr. Fields symbolizes the America that supporters of the Voting Rights Act envisioned over forty years ago, a polity where race would ultimately cease being the driving force in Southern elections. This is also the America that justices on the U.S. Supreme Court often uphold as the aspiration of the Act. Supporters of the Act today argue, to my mind convincingly, that we are not there yet. It might appear, if Mr. Fields example is any indication, that we might be closer than generally presumed.

After reading about Mr. Fields, I subsequently came upon the example of Raymond Jones, documented in the same edition of the Times yet in a separate section. The contrast is remarkable. Mr. Fields highlights the exciting possibilities that a competitive South may bring. Mr. Jones, in contrast, highlights the dangers of power and incumbency, the very things that are often established by safe districts.

Mr. Jones, also known as "the Harlem Fox," is the legendary Democratic leader from New York who nurtured the political careers of many New York politicians, including Charles Rangel, David Dinkins, and David Patterson. The last week has not been kind to this group, with recent revelations leading Governor Patterson to announce that he is not seeking reelection and a House ethics panel admonishing Congressman Rangel for recent actions, with more inquiries soon to follow.

I could not help reading these two articles as one piece on the state of Black politics and, more specifically, black politicians. Now, I understand that the goal of the VRA, and particularly section 2, is to afford black and Latino voters the opportunity to elect their candidates of choice. I get that. But these two examples place much stress on defenders of the VRA to defend the use of race in the 21st century. This is not to say that such a defense is not possible. Rather, it is to say that such a defense would be difficult.

At the very least, supporters of the Voting Rights Act better hope that Justice Kennedy does not read the Times.

Further Thoughts on the Court and the Future of the Voting Rights Act

The only question before the Court in NAMUDNO was whether the conservative justices would have the gumption to strike down one of the "crown jewels" of the civil rights movement. For reasons that remain obscure and the subject of much conjecturing, they didn't. End of story.

This pretty much sums up the history of the constitutionality of the Voting Rights Act. From the moment the Court first took up the question, the constitutionality of the Act has hinged on the Court's willingness to strike down the statute.

Nobody understood this better than the Warren Court, and particularly the "wily" Justice Brennan.



The question then, as it is now, can be stated simply: "Has Congress exercised its powers under the Fifteenth Amendment in an appropriate manner with relation to the States?" The Court's initial response, in the first draft of Chief Justice Warren's opinion in South Carolina v. Katzenbach, is illuminating. Citing Ex parte Virginia, the Chief Justice explained that "Congress has even broader remedial powers than the courts to effectuate the constitutional prohibition against racial discrimination in voting." (italics mine)

Justice Fortas reacted to this argument with concern: "I wonder if this adds enough to the argument to offset the possibility that it may be used in unforeseeable ways to support arguments to narrow court orders." In response, the language changed as follows: "Accordingly, in addition to the courts, Congress has full remedial powers to effectuate the constitutional prohibition against racial discrimination in voting."

The Court wished to grant Congress much leeway to solve this difficult problem, but it worried that doing so would lead a future Congress to take on the Court. Recognition of this dilemma led Justice Brennan to Footnote 10, and what became known as the Morgan power.

Justice Brennan could see a bigger problem in Katzenbach. He worried that basing much of the Court's holding on the findings in the record would lead the Court down a path it would likely regret. Take a look at his notes from his draft:



Focus on the language on the bottom left of the page: “It seems to me one thing to summarize the facts put before the legislature, and another to do what the Chief seems to be up to in this [section]—accepting the Congressional findings because they correspond to our own.”

He continued his questioning on the next page:



To Justice Brennan, Warren's draft focused on the wrong issue: “Do we judge statutes by no. of witnesses[,] length of hearings[,] unanimity of vote? The Chief is judging the legislative product as if it were a judicial one.”

Justice Brennan returned to this criticism once more:



His language is nothing short of prescient: “In several places, like this one, the Chief comes close to writing this as if it were an advisory opinion. I think this might be avoided. Are we reviewing the sections, any more than we are the adequacy of the hearings?”

These questions underscore the political savvy of Justice Brennan. He could see Katzenbach v. Morgan just down the road, a case devoid of the rich evidentiary record found in the South Carolina case. In this light, compare Brennan's opinion in Morgan with Warren's opinion in South Carolina. Their different approaches to the record was stark, as Justice Harlan pointed out in dissent. Brennan wished to avoid the debate all together.

The implications for our debate today are also quite clear. First, the debate over findings that dominated the scholarship post-Boerne is almost as old as the Act itself. Second, Justice Brennan wished to avoid precisely the kind of review advocated by Justice Thomas in his dissent in NAMUDNO. This was an area for Congress to legislate, and the Court would only subject the statute to low level rationality review. Questions of degree were for Congress to assess and determine, not the Court.

Tell it to the conservatives.

The Liberals in NAMUDNO (cont.)

The post-mortem on the constitutionality of the Voting Rights Act is in full-swing. As it is often the case, commentators are all over the map trying to make sense of what the Court said and did not say in NAMUDNO. One reading of the opinion is particularly intriguing, as encapsulated by Guy's thoughts on the case. Namely, it is turning into a truism that the Chief Justice carried the day and the liberals on the Court gave away the store. Commentators question whether the liberals ceded too much ground in trying to preserve the constitutional showdown for another day.

I really don't see it.


Lets take up the arguments (or "dark signs") one at a time:

(1) First, on the facts --

• the conditions that justified section 5 in the past "have changed"
• "blatant discriminatory evasions of federal decrees are rare,"
• "past success alone . . . is not adequate justification to retain the preclearance requirements," and
• "the Act imposes current burdens and must be justified by current needs."

I fail to see how these statements amount to much of anything. Of course the conditions have changed, and you would have to be blind not to see it. If you need any help on this point, go read David Garrow or Taylor Branch. This is not what the case was about now, not today and not thirty years ago in City of Rome. The Act as enacted addressed present conditions, and from that time forward the argument has been whether improved conditions warrant further extensions. To suggest that things have improved is only to state the obvious point that the Act is not an irrational scheme aimed at nothing in particular.

(2) Second, on the states and the rationality of the coverage formula --

• the Act is "a departure from the fundamental principle of equal state sovereignty [which] requires a showing that a statute's disparate geographic coverage is sufficiently related to the problem that it targets."
• The "evidence in the record did not address 'systematic differences between the covered and noncovered'" jurisdictions.

Again, go read the committee debates in 1965 and you will find these arguments sprinkled throughout. This is not new. And then go re-read City of Rome and you will find similar arguments as well. The question for the Court from the beginning has been about how it chooses to weigh the evidence put together by Congress. And from the beginning, critics have offered the Court the argument that distinctions between covered and non-covered jurisdictions are spurious and unsupportable.

For example, critics and supporters alike complained during the hearings about the exclusion of Texas from coverage. Texas, of course, is the setting for the white primary cases and White v. Regester. Could a formula that fails to include Texas be non-arbitrary? Yes, according to 8 justices in Katzenbach. What's new?

(3) Third, the federalism point --

• The Act imposes "substantial federalism costs"
• These special provisions of the Act "raise serious constitutional questions under either test."

I don't even know what to say to this. Duh? Of course these are serious federalism costs. Could anybody seriously suggest otherwise? And of course these are serious constitutional questions. Anybody who suggests otherwise must be living on a different planet. But to say that these are difficult questions is not to say that the questions are insupperable. I don't know what else they tell us.

In essence, nothing has changed. In 1980, the Burger and Blackmun (and Stevens, I suppose) held the fate of the Act in their hands. In 1999, the distinction passed to Justice O'Connor. It is now up to Justice Kennedy. And nothing that the liberal justices agreed to, and nothing the Chief Justice wrote or didn't write, is likely to have any bearing on that future vote.

I still cannot help but wonder: if Kennedy was ready to strike the special provisions of the Act, why not get it over with?

Thoughts on NAMUDNO

The Supreme Court handed down its decision in NAMUDNO v. Holder this morning.

And rather than confront the big issue head on, the Court essentially punted, setting the big question aside for another day. The special provisions of the Voting Rights Act remain in the books, ready for the next challenge.

The case raised two questions: First, can the utility district, which is neither a county nor a parish and does not register voters (and thus not a "political subdivision" under the explicit statutory definition) bailout from coverage of Section 4 of the Act? And second, if the utility district cannot bailout, then they argued that the preclearance requirements are unconstitutional.

The Court only reached the first question and concluded -- in a surprising 8-1 opinion authored by the Chief Justice -- that the utility district can attempt to bailout under section 4. While invoking the "constitutional avoidance" doctrine, in other words, the Court disposed of this challenge on statutory grounds. I have two initial thoughts about NAMUDNO and the Court's approach.

(1) Why would the Court avoid the constitutional question? Anybody who read the transcript of the oral argument could appreciate that the constitutionality of the Act rested on uncertain ground. Those who count votes could see at least 4 votes against the Act, and Justice Kennedy seemed a likely fifth vote. How did we get from that state of affairs to the decision we got today? One answer may very well be that the conservatives could not get Kennedy to go along. This is a big step, after all, and Kennedy might not be ready to take it quite yet. If this is true, then this outcome is the best that the conservatives could get, and the "liberals" were happy to go along, as this was a much better outcome than they had a right to expect.

If I am right about this, then the Act remains on solid constitutional ground for the foreseeable future. Justice Kennedy could always change his mind, of course, but until then, constitutional challenges to the Act are likely to go the way they always have. This is now the sixth challenge to the Act since its initial enactment in 1965 (Katzenbach; Morgan; Georgia; City of Rome; Lopez; NAMUDNO), and each and every time, the Court has deferred to the wishes of Congress. So the real question for the future is, why would the Court change its mind? What would have to happen for the Court to strike down this law? These questions lead me to my second thought . . .

(2) The Puzzle that is Justice Thomas. Eight justices were willing to set down the constitutional question and decide the case on statutory ground. Justice Thomas was not. He not only wanted to reach the constitutional question, but he also would strike down the special provisions of the Act as beyond the powers of Congress to enact.

This is remarkable. Remember that Justice Thomas is one of those rarified "classical jurists" who, as opposed to the "liberals," does not make law from the bench. Yet here he is in NAMUDNO, wishing to strike down portions of the Act because Congress did not put in the record enough evidence to satisfy him about the need for the statute any longer. Make no mistake: Congress had plenty of evidence in the record, thousands of pages worth. But the evidence Congress did have was not the evidence Justice Thomas wanted.

To Justice Thomas, Congress must have evidence of intentional racial discrimination in order to justify the extension of the Act any longer. In fairness, this makes some sense: the argument dates back to City of Rome, when the Court decided on the same day that the Fifteenth Amendment embodied a standard of intentional racial discrimination. Note: Could Congress prohibit state voting practices devoid of purposeful discrimination but only with a discriminatory effect? According to Justice Thomas, the answer is no. The full Court, in City of Rome, disagreed. Shouldn't Justice Thomas at the very least recognize this disagreement? And wouldn't a "classical jusrist," uninterested in writing law but only in interpreting it, side with all the prior rulings upholding the constitutionality of the Act?

To state the obvious: we are about to embark on a historic debate on the nomination of Judge Sotomayor to the Court. I am sure we will hear a lot about the conservative justices and their penchant for interpreting law, not making it, for calling balls and strikes, not for writing the rules of the game. When you hear these comments, think about Justice Thomas in NAMUDNO. Think also about the upcoming Ricci case. Talk to me then about judicial activism and "classical judicial jurists."

Open Letter to Justice Kennedy (and all other "Classical Judicial Jurists")

Dear Sir(s) --

I noticed that the NAMUDNO opinion is not out yet. I assume this means that it is taking up a lot of your time. This appears to be a hard case. But it is not really all that hard. Let me help you.


These are your words, from the recent Bartlett case (decided in March of this year): "Much remains to be done to ensure that citizens of all races have equal opportunity to share and participate in our democratic processes and traditions." I agree. And so did Congress in 2006, by overwhelmingly extending the special provisions of the Voting Rights Act for another 25 years.

As you prepare to decide NAMUDNO, and whether these special provisions are legitimate exercises of congressional power under the Reconstruction Amendments, don't let it be said that you are not a classical judicial jurist, a judge for whom precedent matters. This is why you must uphold the VRA once again. You and Congress agree that a problem still exists, and Congress extended the VRA in an attempt to continue the fight against this very problem. The only way you could strike down this statute would be by disagreeing with Congress on the means deployed to combat this problem. But surely, to do so would be to disagree with precedents dating back to the founding, and as recent as a decade ago. So long as the ends pursued by the legislation are legitimate, the means need only be appropriate and "plainly adapted to that end." The only way you could strike down the statute, in other words, would be by disagreeing about the means deployed by Congress. In doing so, you would also disagree with rulings issued by all three preceding Courts. Don't let it be said that you are an activist judge.

I recognize that the various extensions to this law are now beginning to turn these provisions into a seemingly permanent statute. But this argument is nothing short of a distraction. As Attorney General Katzenbach told Congress in 1965, this statute is "strong medicine." Nobody takes medicine forever, of course. But it should be for Congress to determine when the need for the medicine ends, not the Court. And Congress just determined that the need still exists, for another 25 years. In Bartlett, you agreed that the ills that motivated Congress to act are still among us. And so to strike down these special provisions would be to impose your personal views and decide that these means, these provisions, are not necessary, or too strong, or who knows what. But that would not be an act of a court. That would be an act of a legislature.

As we prepare for the historic confirmation hearings on the nomination of Judge Sotomayor, we will hear and debate many views about what the proper temperament and disposition of a Supreme Court Justice should be. In this vein, this case should give us a window into the Roberts Court and the future of voting rights law. It should also help us put these upcoming debates in perspective.

Remember: this is not a hard case. Assuming, of course, that you are a "classical judicial jurist." Tell your friends.

Respectfully,

CD

The End of the Voting Rights Act?

In the next few weeks, the spectacle known as the end of the Supreme Court term will be upon us. And with it, bizarre as it may seem, we will get answers to some of the most important and vexing questions of the day. I eagerly await for one answer in particular: in Namudno v. Holder, the Court will decide whether the special provisions of the Voting Rights Act remain a legitimate exercise of congressional power under the Fifteenth Amendment.

The puzzle began in 1965, when the Johnson administration devised a coverage formula that engulfed predetermined states within the special provisions of the Act. The formula itself seemed innocuous enough: the offending jurisdiction must use a literacy test as part of its voter registration process, and either its turnout rate for the 1964 presidential election or its registration rate on November 1, 1964 was below fifty percent. Once applied, the formula brought within the purview of the Act the states of Alabama, Georgia, Louisiana, Mississippi, South Carolina and Virginia, as well as 26 counties in North Carolina.

To a cynic – and there were a few in Congress back then – the fact that these select jurisdictions came under the Act’s coverage must mean that the formula was nothing but an arbitrary ruse designed to penalize select southern jurisdictions. To the Supreme Court, however, the fact that these states were the worst known offenders corroborated the rationality of the formula.

The formula has remained essentially in place for 44 years. This is curious at best. How could this formula, intended as a temporary measure, remain unchanged for 44 years? The way that supporters of the Act defended the special provisions of the Act focused on their temporary nature; or as Representative Don Edwards, the House subcommittee chairman in 1975, “[t]he act that was the result of this frustration was a radical bill. It was bent on results without delay. It was also designed to be temporary. After a few years of harsh measures, the practices of a lifetime would be reversed and special Federal protection would no longer be necessary.” Are we to assume that none of the covered jurisdictions have improved in any noticeable way, and that voting problems have not surfaced elsewhere?

Maybe. But at the heart of the Namudno case is the question of institutional competence. Whether matters have improved or not, and whether the special provisions of the Act are no longer required, are questions for Congress to consider. These are questions of degree. These are also questions on which the Court has deferred to the will of Congress on four separate occasions, the last in 1999 and the Monterey County case. For the Court to now conclude that any existing problems no longer demand a congressional response of this magnitude would be for the Court to disagree with Congress on a question that, until today, was a question reserved for Congress. It would be for the Court to turn its back on precedents dating back four decades. If this is not judicial activism, I don’t know what is.

Make no mistake, the Court has been here before. The year was 1980, and the case was City of Rome. The civil rights movement had long disappeared from view, and the Nixon appointees finally had the votes and appeared poised to strike down the Act. The pieces were in place. Chief Justice Burger and Justice Blackmun had reserved judgment to this point, but in earlier concurrences had made clear that they were not friends of the VRA. The facts were also gift-wrapped: How could the Court justify the congressional enforcement of a discriminatory effect standard if the Fifteenth Amendment only protected against intentional racial discrimination (as the Court concluded the same day it issued the Rome opinion, in City of Mobile)?

The line-up was set: Justices Powell, Rehnquist and Stewart, to be joined by Chief Justice Burger and Justice Blackmun (and who knew, maybe even the newest Court member, Justice Stevens might come along).

But in the end, Burger and Blackmun could not do it. They signed on to Justice Marshall’s opinion upholding the VRA and did not offer their views on the matter.

So maybe, just maybe, Justice Kennedy will not be able to do it either. And that is just bizarre, even incomprehensible – the central policy questions of our time decided by the Court on a 5-4 vote, and a swing Justice holds all the cards.

It might be time to abolish judicial review after all . . .