an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Tomorrow the Supreme Court will hear argument on NAMUDNO, a challenge to the constitutionality of Section 5 of the Voting Rights Act. What has been frustrating about the commentary leading up to the argument is that it often misses the key question here. This fight largely turns on a concrete legal question, not on atmospheric debates about whether Barack Obama's election changed everything. I realize that it may be unfashionable to suggest that a Supreme Court case might actually turn on a question of law, but there it is.
By way of background, Section 5 requires certain jurisdictions -- mostly states in the Deep South -- to ask the federal government’s permission before making any change, no matter how small, in the way they run elections. This unusual provision solved the central problem of voting rights enforcement during the Civil Rights era -- keeping up with the increasingly creative strategies recalcitrant state and local governments used to disenfranchise voters. Every time a court deemed one discriminatory practice illegal, local officials would switch to another. Section 5 shifted the burden of inertia, allowing the Department of Justice to get one step ahead of local officials.
It's not hard to see why people use Obama's election as a frame for this debate, and why others take such a move as evidence of hostility toward the Voting Rights Act itself. For a taste of how heated the debate can become, notice the brouhaha generated today when the New York Times reported election law professor Ellen Katz as saying that Obama's election was something that Congress -- not the Court -- should evaluate in thinking about Section 5. As far as I can tell, Katz said exactly the same thing a month ago without generating any controversy, but feelings are running high as the argument approaches.
While debates about what Obama's election means are important, it is the legal question that will matter tomorrow, and the legal question is at some remove from the question commentators have talking about. The question in NAMUDNO is whether, roughly forty years after Section 5 was passed, Congress has the power to renew it for another 25 years. The seminal case addressing Congress's power to enforce the Constitution is City of Boerne v. Flores, an opinion authored by Justice Kennedy. Section 5's fate turns in large part on whether the Court applies the City of Boerne test here without modification. If it does, Obama or no Obama, Congress will need a lot of evidence to show that there was a constitutional problem serious enough to warrant renewing Section 5. If the Court applies a more generous standard, Section 5 will be much more likely to survive, regardless of what the Court thinks Obama's election means. The Court must answer this legal question in order to write this opinion. That is because City of Boerne addressed a different issue than is presented in NAMUDNO. Boerne addressed a statute (protecting religious freedom) that was enacted for the first time, and it demanded that Congress show that there was good reason to act. Here, no one seriously questions whether there was good reason to pass Section 5 in the first place. The question is what standard should be used to when Congress is renewing what lawyers would call a prophylactic statute, a broad set of protections designed to deter discrimination. If Boerne were applied wholesale, Congress would be in a catch-22. If the statute was working, there wouldn't be much evidence of discrimination, and Congress wouldn't be allowed to renew the statute. If the statute wasn't working, Congress would have the evidence of discrimination it needed, but there wouldn’t be much point to renewing a failed regulatory regime. One might also think that the standard should be different because here, unlike in Boerne, Congress is protecting the votes of racial minorities, something that falls squarely within the ambit of the 14th and 15th Amendment.
The Court must, then, figure out what standard applies, and the choice it makes will drive the opinion. I don’t mean to say that the Justices won’t have their own intuitions about how this case should come out, and those intuitions will surely be informed by the recent election. But the legal puzzles -- how do you evaluate the renewal of a prophylactic protection against discrimination? does Congress have more leeway to regulate when enforcing voting rights? -- require a solution, and the solution will matter a good deal more than much of the commentary has suggested.
Once the Court has figured out the legal question, it will, of course, have to turn to the facts. The Court may well dismiss Obama's election as irrelevant, as it occurred after Congress legislated. But even if the Court were willing to take this evidence into account, Obama's election isn't a trump card for a simple reason: Section 5 is a measure of annual rainfall. It's designed to address not just high salience national elections, but also low salience local elections (where voters have less information about candidates and may be more likely to use race as a proxy in voting). It's designed to address not just racial bloc voting, but the many ways in which local officials can administer elections in a fashion that undermines the chances of black and Latino voters to cast a meaningful ballot.
If we want a measure of annual rainfall, the only way to assess the relevance of Obama's historic win is to decide whether the race signals a change in the annual rainfall rate or whether the presidential election was simply a perfect storm -- a national race in which a highly charismatic candidate with an extraordinarily well-organized staff was running in the wake of one of the most unpopular presidents in history, against a party that was falling apart, and in a year when the economy is tanking.
To question whether Obama's election changed everything is not to suggest that nothing has changed (as this debate has deteriorated, that is typically the box in which one is placed the moment one makes such a claim). I, for one, believe that the South has changed significantly, and that race and politics combine in far more complicated ways than they did when the Voting Rights Act was first passed. Supporters of the Act would be foolish to suggest otherwise. I simply want to insist that the Obama data point needs to be folded into a measure of annual rainfall. That's why I welcome the amicus brief linked here that was submitted in this case by three academics --Nate Persily, Charles Stewart and Steve Ansolabehere -- who dug into the details of the data to figure out where Obama's election fits in the annual rainfall measure. Statistics, not atmospherics, are their guide.
The legal and statistical questions here are dull when compared to the "does Obama change everything?" meme. But it seems to me that they are the right questions to be asking in thinking about NAMUDNO. And maybe in this highly fraught debate a little boredom would be a good thing.