Balkinization  

Thursday, February 14, 2013

Reagan’s Former AG Schools Hans von Spakovsky on Voting Rights

Doug Kendall



In a prior post, we noted the deafening silence from conservative constitutional scholars when it comes to the constitutional basis for Shelby County’s challenge to Section 5 of the Voting Rights Act.

Just as notable is this rather ferocious amicus brief, which features Dick Thornburgh, Attorney General under Presidents Ronald Reagan and George H.W. Bush as its lead signatory.  Not only does Thornburgh’s brief strongly support the constitutionality of the Voting Rights Act, but it also delivers a gut punch (care of Thornburgh and a distinguished, bipartisan group of former Department of Justice officials) to a brief filed on behalf of Shelby County by a very partisan group of notable conservatives, including Hans von Spakovsky, Chuck Cooper, and Roger Clegg.  

Here’s how the Thornburgh brief describes its mission: 

Amici write this brief principally to respond to contentions raised in two amicus briefs filed in support of petitioner contending that constitutional concerns regarding the Voting Rights Act are “exacerbate[d]” by the 2006 amendments to Section 5’s substantive standards.  See Shelby County v. Holder, Brief of Former Government Officials Hans von Spakovsky et al. (No. 12-96) (von Spakovsky Br.); Shelby County v. Holder, Brief of John Nix et al. (No. 12-96) (Nix Br.).

Summarizing its beef with von Spakovsky et al., the Thornburgh brief explains that:

The Voting Rights Act is hailed across the political spectrum as the crown jewel of American liberties and a monumental legislative accomplishment.  Congress recently reenacted it with overwhelming majorities.  Like any statute, it is not vulnerable to challenge on the basis of baseless speculation about potential misinterpretation or wrongful enforcement.  (Emphasis added)
Ouch.   To give one more specific example, Thornburgh’s brief takes dead aim at von Spakovsky’s distortions of the recent enforcement actions involving voter ID laws:

[V]on Spakovsky . . . is wrong on both the facts and the law.  First of all, among the photo ID laws passed by covered jurisdictions since 2006, more have been cleared (New Hampshire, Georgia and Michigan) than not (Texas and South Carolina, the latter blocked for the 2012 election only).
Second, as a legal matter, amici’s argument relies on a misinterpretation of this Court’s decision in Crawford v. Marion County . . . .  Crawford does not grant an automatic constitutional pass to any and all photo ID requirement.  Rather, in rejecting a facial challenge . . . the Court’s analysis focused on the burden imposed on Indiana voters, which it found to be minimal; the required photo IDs were free and widely available.
By contrast, where a photo ID law imposes a disproportionate burden on minority voters and does not provide any means to mitigate that burden, Section 5 will bar its enforcement.
It’s not that often in Supreme Court practice that you see one amicus brief respond directly to another.  But such a thoroughgoing rebuke by a conservative Republican former  Attorney General against conservatives trying to make the case against the constitutionality of a federal law?  We’ve never seen anything like it.  Which makes the Thornburgh brief a must read for anyone following the debate over Shelby County v. Holder.

Comments:

First Ted Olson on SSM, the orals coming in a month, now this.

Von Spakovsky has been shown to be a tool on this issue for some time. Rick Hasen in his latest book provides some evidence to justify my statement.

BTW, the point on Crawford is a good one and addresses something noted in an earlier comment. All voting id laws are not created equal; some are more burdensome than others. Also, the test for a facial challenge in court might be different than preclearance.

 

Just an FYI, their Table of Authorities is screwy. For instance, Katzenbach is listed on page 15, but it actually appears on 17.
 

This post got me trying to remember "Sparky" characters in sitcoms. It turns out there were many.
 

All voting id laws are not created equal; some are more burdensome than others. Also, the test for a facial challenge in court might be different than preclearance.

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