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Shelby County and the Illusion of Minimalism

Abstract: Chief Justice Roberts’ majority opinion in Shelby County v Holder, holding unconstitutional a key part of the 1965 Voting Rights Act, purports to be a modest decision written with reluctance and humility. The Court struck the coverage formula in Section 4 of the VRA used to determine which states and local governments must submit any proposed voting changes for federal approval (or “preclearance”) under Section 5. According to the majority, by failing to amend the VRA to update the coverage formula after the Court raised constitutional doubts about preclearance in the 2009 NAMUDNO case, Congress “leaves us today with no choice.” “Striking an Act of Congress ‘is the gravest and most delicate duty that this Court is called on to perform.’” The majority held that the coverage formula renewed by Congress without change in 2006 failed to take into account “current conditions” of discrimination in covered jurisdictions and failed to treat states with the “equal sovereignty” they deserved under the Tenth Amendment. Rather than strike down section 5, as Justice Thomas would have done, the Court “issue[d] no holding on § 5 itself, only on the coverage formula. Congress may draft another formula based on current conditions.” The short opinion for the five most conservative Justices on the Court - only two-thirds the size of Justice Ginsburg’s dissent for the four most liberal Justices - casts itself as adhering to precedent, reaching a result compelled by stare decisis and inevitably flowing from NAMUDNO. The majority ostensibly stands ready for Congress’s next step. Despite the projected judicial modesty, the Shelby County Court was doing much more than calling balls and strikes and applying settled precedent to uncontested facts. Shelby County is an audacious opinion which ignores history, declines to engage the dissent’s powerful argument that the VRA’s bailout provisions solve any constitutional problem, and rejects the Roberts Court’s stated commitment to judicial minimalism in its treatment of facial challenges and severability. It pretends it is not overturning section 5 yet it sets a standard under which any new coverage formula will likely fail a constitutional test. The opinion disregards the pervasive polarization in the current Congress which dooms agreement on a new coverage formula and it seems to reject any replacement coverage formula. But the opinion is minimalist in a difference important sense as well: its brevity seeks to mask major doctrinal and jurisprudential change. By writing a very short opinion and avoiding a discussion of the Fifteenth Amendment’s history and how the Court silently resolved a dispute over the applicable standard of review, the Court tried to hide the major jurisprudential hurdles it jumped to reach a political decision. The opinion, relying on a new and unjustified “equal sovereignty” principle, demeans the strength of Congress’s power to eradicate racial discrimination in voting, sidestepping a key standard of review question raised but not resolved in NAMUDNO regarding how much deference the Court owes Congress acting under its Fifteenth Amendment enforcement powers. The opinion’s brevity is an insult, not an act of modesty. As Justice Ginsburg remarked in dissent, “Hubris is a fit word for today’s demolition of the VRA.” Yet the dissenters offer their own incomplete history of the VRA’s renewal, failing to grapple with the more complex record of the congressional reenactment. To hear the dissenters' story, Congress in 2006 was nearly universally behind the 25-year renewal of section 5 using the old coverage formula, and Congress would have had no idea that the continuing use of the same coverage formula could have doomed its constitutionality. In fact, it was a less happy story. Congress willfully ignored the problems with the coverage formula which legal scholars brought to Congress’s attention, and which were amply covered by a Senate report written by Republican committee staffers who were deeply skeptical of the Act’s continuing constitutionality. While the Shelby County majority minimized the audaciousness of its own holding, the dissenters minimized the difficult constitutional questions before Congress and before the Court. Part I briefly describes the background of the Shelby County case, and in particular the questions left open in NAMUDNO. Part II analyzes the majority opinion, and explains the opinion as an act of false minimalism. Part III analyzes the dissenting opinion, and explains the dissent as one willfully silent about difficult constitutional questions. In the end, the dissenters had the better argument about the Act’s constitutionality, but the dissent would have been stronger had it described and grappled more forthrightly with the struggles over the VRA’s renewal and the dangers of political avoidance. Shelby County is important not just for the loss of preclearance, but the diminution of congressional power over voting rights in the future.
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Posted Content
TL;DR: The story of the 2012 voting wars is a story of Republican legislative and to some extent administrative overreach to contract voting rights, followed by a judicial and public backlash as mentioned in this paper, which manifested themselves in a host of restrictive election rule changes passed in the name of fraud prevention and administrative convenience mostly by Republican legislatures and implemented by Republican election administrators.
Abstract: In 2000, some scholars predicted the Supreme Court’s controversial equal protection holding in Bush v. Gore that the state could not arbitrarily value one person’s vote over that of another might be used to force states to improve their election processes through litigation. In the ensuing years, Bush v. Gore had not fulfilled that promise. Scholars debated when, if ever, the case could apply beyond the narrow facts of a statewide recount with inconsistent counting standards, but the courts seemed uninterested: the Supreme Court has failed to cite the case for any proposition, and the few lower courts which relied upon the case as precedent to create better and fairer voting conditions were overturned or limited. By 2007, I lamented the “untimely death” of Bush v. Gore.A funny thing happened during 2012. The voting wars which had ensued since 2000 manifested themselves in a host of restrictive election rule changes passed in the name of fraud prevention and administrative convenience mostly by Republican legislatures and implemented by Republican election administrators. Democrats, the Department of Justice, and reform groups resisted the overreach, litigating over many of these changes. The results of this litigation was a mixed bag. For example, courts approved some voter identification laws, rejected others, and put Pennsylvania’s and Wisconsin’s laws on hold for this election season but perhaps not beyond that. Overall, it appeared that in the most egregious cases of partisan overreach, courts were serving, often with surprising unanimity, as a judicial backstop.In Ohio, one of the twin epicenters (along with Florida) of the 2012 voting wars, two important cases relied in part on Bush v. Gore to expand voting rights. In one case, a conservative panel of the United States Court of Appeals for the Sixth Circuit — a court which had shown itself bitterly divided along party and ideological lines on election issues in 2008 — unanimously held that Ohio’s disenfranchisement of voters for voting in the wrong polling location because of poll worker error violated the equal protection clause. In the other case, another Sixth Circuit panel held that Ohio’s contraction of the early voting period to exclude the weekend before the election, for all voters except certain military voters, violated the equal protection clause under Bush v. Gore. The court so held despite the fact that Ohio provided 23 days of early voting and for the first time sent all Ohio voters a no-excuse absentee ballot application. This latter ruling was at best a major stretch of Bush v. Gore and existing precedent.The story of the 2012 voting wars is a story of Republican legislative and to some extent administrative overreach to contract voting rights, followed by a judicial and public backlash. The public backlash was somewhat expected — Democrats predictably made “voter suppression” a key talking point of the campaign. The judicial backlash, and the resurrection of Bush v. Gore in the Sixth Circuit, was not. The judicial reaction, from liberal and conservative judges and often on a unanimous basis, suggests that courts may now be more willing to act as backstops to prevent egregious cutbacks in voting rights and perhaps to do even more to assure greater equality and fairness in voting. However, it is possible that this trend will reverse in future elections.

5 citations

Journal ArticleDOI
03 Sep 2013
TL;DR: A large volume of social science evidence was presented for the Shelby County case as mentioned in this paper, and many social scientists contributed to that record and submitted many briefs to the Supreme Court in the case (as in the Northwest Austin case decided in 2009).
Abstract: The crux of the Shelby County case is whether the coverage formula for identifying jurisdictions subject to the preclearance conditions of the Voting Rights Act (VRA) is still an appropriate way to identify locations with heightened levels of voting discrimination. This is the kind of question that lends itself to social science research, and a large volume of social science evidence was presented for this case. Justice Ginsberg’s dissenting opinion documents the ‘‘sizeable record’’ that was created when Congress reauthorized the VRA in 2006. Many social scientists contributed to that record. Furthermore, many briefs presenting social science evidence were submitted to the Supreme Court in the Shelby County case (as in the Northwest Austin case decided in 2009). More generally, there is a large social science literature on minorities and voting rights in the United States. It is impossible to adequately summarize the social science record in a small space, but here are a few of the key findings.

4 citations

Posted Content
TL;DR: In this paper, the authors argue that to determine the sovereign rights of the states under the Constitution, courts should ask not whether the constitutional text affirmatively grants them certain rights, but whether theconstitutional text clearly and expressly abrogates such rights.
Abstract: Courts and commentators have long struggled to reconcile robust federalism doctrines with the text of the Constitution. These doctrines include state sovereign immunity, the anti-commandeering doctrine, and the equal sovereignty of the States. Supporters of such doctrines have generally emphasized the history, structure, and purpose of the Constitution over its precise text. Critics of such doctrines have charged that they lack adequate support in the Constitution and are the product of improper judicial activism. This Article reconciles federalism and textualism by looking to a surprising source—international law. The Constitution contains numerous references to “States”—a term of art drawn from the law of nations. The founding generation first used the term “States” in the Declaration of Independence to claim independence for the original thirteen colonies and declare that they possessed full sovereign rights under the law of nations. The law of nations not only defined the rights of sovereign States, but also provided rules governing how States could surrender these rights. Understanding the term “States” against this backdrop provides a firm textual basis for the Supreme Court’s most significant federalism doctrines, and suggests that courts and commentators have been asking the wrong questions in assessing these doctrines. Under the law of nations, a “State” possessed full sovereignty unless it clearly and expressly surrendered some of its sovereign rights in a binding legal instrument. Thus, to determine the sovereign rights of the “States” under the Constitution, courts should ask not whether the constitutional text affirmatively grants them certain rights, but whether the constitutional text clearly and expressly abrogates such rights. This approach grounds many of the Court’s prominent federalism doctrines in the constitutional text.

3 citations

Posted Content
TL;DR: In this article, the authors define the notion of penumbral federalism as a pragmatic negotiation that works to maintain some semblance of federalism in an age when pragmatism has pressured even formalist and conservative judges to accept federal regulatory primacy.
Abstract: For several decades the Court has invoked “state dignity” to animate federalism reasoning in isolated doctrinal contexts. Recent Roberts Court decisions suggest that a focus on state dignity, prestige, status, and similar ethereal concepts — which derive from a “penumbral” reading of the Tenth Amendment — represent the budding of a different doctrinal approach to federalism generally. This article terms this new approach “penumbral federalism,” an approach less concerned with delineating state from federal regulatory turf, and more concerned with maintaining the states as viable competitors for the respect and loyalty of the citizenry.After fleshing out what “penumbral federalism” is and its theoretical basis, the article explores the approach’s prudential appeal: penumbral federalism is a pragmatic negotiation that works to maintain some semblance of federalism in an age when pragmatism has pressured even formalist and conservative judges to accept federal regulatory primacy. By framing the most important Roberts Court decisions in penumbral federalism terms, the article reveals the method to the seeming madness: they are the logical fruits of intellectual seeds planted in Rehnquist Court decisions.

2 citations

References
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TL;DR: In this paper, the authors argue that when a state legislature passes an election administration law (outside the redistricting context) discriminating against a party's voters or otherwise burdening voters, that fact should not be a defense, and instead, courts should read the Fourteenth Amendment's Equal Protection Clause to require the legislature to produce substantial evidence that it has a good reason for burdening the voters and that its means are closely connected to achieving those ends.
Abstract: North Carolina, Texas, and other states with Republican legislatures have passed a series of laws making it harder for voters to register and to vote. In response, the United States Department of Justice has sued these states, claiming that the laws violate portions of the Voting Rights Act protecting minority voters. When party and race coincide as they did in 1900 and they do today, it is hard to separate racial and partisan intent and effect. Today, white voters in the South are overwhelmingly Republican and, in some of the Southern states, are less likely to be willing to vote for a Black candidate than are white voters in the rest of the country. The Democratic Party supports a left leaning platform that includes more social assistance to the poor and higher taxes. Some Republicans view such plans as aiding racial minorities. Given the overlap of considerations of race and considerations of party, when a Republican legislature like North Carolina’s passes a law making it harder for some voters to vote, is that a law about party politics or a law about race? As I explain, if courts call this a law about party politics and view it through the lens of partisan competition, then the law is more likely to stand, and the fight over it will be waged at the ballot box. If the courts call this a law about race and view it through the lens of the struggle over race and voting rights, then the law is more likely to fall and the fight will be settled primarily in the courts. The race versus party bifurcation is unhelpful, and the solution to these new battles over election rules — what I call "The Voting Wars" — is going to have to come from the federal courts. Courts should apply a more rigorous standard to review arguably discriminatory voting laws. When a legislature passes an election administration law (outside the redistricting context) discriminating against a party’s voters or otherwise burdening voters, that fact should not be a defense. Instead, courts should read the Fourteenth Amendment’s Equal Protection Clause to require the legislature to produce substantial evidence that it has a good reason for burdening voters and that its means are closely connected to achieving those ends. The achievement of partisan ends would not be considered a good reason (as it appears to be in the redistricting context). These rules will both discourage party power grabs and protect voting rights of minority voters. In short, this new rule will inhibit discrimination on the basis of both race and party, and protect all voters from unnecessary burdens on the right to vote.

12 citations