Home -> Law Blog Directory -> Legal Commentary Blogs -> Discriminations

Legal Commentary

: Discriminations

Good News: Rick Hasen Is Worried The Supremes May ?Kill The Voting Rights Act?!

Loyala Law School Professor Rick Hasen, who writes the Election Law Blog and is a highly regarded authority on, you guessed it, election law, has an article on SLATE today expressing his concern, even fear, that the Supreme Court may invalidate a key section of the Voting Rights Law.

Tomorrow, he writes,

the last day of the court's term, the justices will hear a case from an obscure utility district in Texas, Northwest Austin Municipal Utility District No. 1 v. Holder. (The shorthand is NAMUDNO....) At stake is not only the constitutionality of a key provision of the Voting Rights Act but, potentially, the constitutionality of a host of other civil rights laws. These include the requirement for the creation of majority-minority districts in cities and states with large minority populations and the guarantee of language assistance to non-English-speaking voters in jurisdictions with a fair number of them. The NAMUDNO ruling will come just before the next round of redistricting and could have a major effect on who wins in all kinds of races, from obscure utility districts to state houses to Congress.

What?s especially worrying about NAMUDNO is that the case does not provide the court with an easy incremental way out: If a majority of the justices want to side with the challengers to the Voting Rights Act, there?s not much they can do short of holding the act as broadly unconstitutional.

I hope both both the concern and fear are justified, but before discussing the reasons for them it is worth mentioning that we have encountered Prof. Hasen several times before.

In Construing Liberal Construing, Or: Construe You, for example, I discussed his explanation of why the apparently clear language in New Jersey election law specifying that a party can replace one candidate with another ?not later than the 51st day before the general election? didn?t really mean ?not later than the 51st day before the general election.?

In Liberals vs. Conservatives: It's A Matter Of Interpretation, we saw Prof. Hasen creatively construe Article Two, Section One, Clause Two of the U.S. Constitution, which says in part that ?[e]ach State shall appoint, in such manner as the Legislature thereof may direct, a number of electors....? As I wrote in that 2004 post,

I find it very curious, ... and perhaps revealing, that Prof. Hasen?s rendition of this Article II requirement is that it ?allows each state legislature to set the rules under which electors are chosen and allocated? (emphasis added). Allows? This is rather like saying that Article I allows Congress to exercise legislative powers, and allows it to consist of a Senate and House.

With this background it will come as no surprise that Prof. Hasen begins his current SLATE article on what might described, charitably, as a highly partisan note:

Under the leadership of Chief Justice John Roberts, the Supreme Court has not been friendly to voting rights or reasonable campaign finance laws.

To disagree with the liberal version of voting rights, in short, is to be unfriendly to voting rights; to disagree with the liberal version of campaign finance reform (otherwise known as limiting political speech) is to be unreasonable. With Prof. Hasen?s general orientation in mind, let us look at some of his concerns about the Supremes might do to the Voting Rights Act, and why.

First, the ?new federalism? rulings of the Rehnquist Court, beginning in 1997 when it struck down the Violence Against Women Act, has held, Hasen writes, ?that when Congress passes laws regulating unconstitutional conduct by the states, it has to come up with specific evidence that the states are violating the Constitution.? One can readily see why that unbearably high standard ? imagine: requiring evidence that states are violating the Constitution before being allowed to to regulate their unconstitutional conduct! ? might prove objectionable to liberals who assume as an article of faith that states are doing today what they did in 1965. As Hasen writes,

The problem with Section 5 of the Voting Rights Act is that it has been so successful that there's little ongoing evidence that states are engaging in unconstitutional discrimination. New forms of race-based barriers to voting are more subtle....

Again, I can easily see how that success, combined with an insistence on actual evidence of constitutional violations, is a ?problem? for Hasen et. al.

And then there?s the problem of Chief Justice Roberts himself, who remarked in a 2006 Texas redistricting case that it is ?a sordid business, this divvying us up by race? and, as Hasen laments, ?Justices Alito, Thomas, and Scalia have all lined up on the same side.?

But wait. It gets worse! Not only is there an apparently solid conservative block on the Court that finds fault with ?divvying us up by race? (what a sad comment on liberalism that this is now a conservative hallmark!), but even the liberals may be beginning to suspect that times have changed. ?More surprisingly, perhaps,? Hasen mourns,

even Justices Stevens and Souter may not vote to uphold Section 5. In a Section 5 case the court decided last year, the two issued an opinion stating that ?it may well be true that today [Section 5] is maintaining strict federal controls that are not as neces­sary or appropriate as they once were.?

Change, at least the sort of change surrounding the problem the Voting Rights Act was intended to (and did) correct, is quite disconcerting to liberals. To wit:

.... As the law's challengers point out, the formula describing which jurisdictions are covered by the law is now based on 40-year-old data. And, of course, the election of the first African-American president is being touted by Section 5 opponents as evidence that race is no longer a problem in American elections. (To the contrary, a group of political scientists has shown that whites in jurisdictions covered by the Voting Rights Act were less likely to support Obama last November than whites elsewhere.)....

Why, liberals ask nervously, would we conclude that a provision that requires federal regulation of decisions as minute as moving a polling place across the street might no longer be needed just because the conditions that gave rise to it 45 years ago no longer obtain? How could anyone thing that the election of a black president means blacks could be elected president?

Those political scientists may believe that they have ?shown? continuing racism in need of federal intrusion by pointing to evidence ?that whites in jurisdictions covered by the Voting Rights Act were less likely to support Obama last November than whites elsewhere,? but it may be that those whites voted against Obama precisely because they object to the federal intrusion that they predicted, accurately, would follow in the wake of his election.

Full post as published by Discriminations on April 29, 2009 (boomark / email).