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
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 marty.lederman at comcast.net
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
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
With the Supreme Court poised to decide Shelby County v. Holder, here is a question: why isn't Section 5 of the Voting Rights Act (the pre-clearance provision) a form of unconstitutional commandeering? Let's say a covered jurisdiction wants to shut down a polling location and send voters across town in order to save money. Section 5 prohibits that change unless the covered jurisdiction demonstrates to the satisfaction of the Attorney General (or the district court) that the change does not have a racially discriminatory purpose and will not have a racially discriminatory effect. If the proposed change is rejected, the jurisdiction must keep the polling place open. In other words, the VRA will require the state to operate, staff, and pay for a designated polling place--and the state will lack any ability to refuse the federal command. That would seem to be exactly what Printz and New York (the Court's anti-commandeering cases) forbid.
Is there a relevant distinction? Two possibilities come to mind. (1) Perhaps the anti-commandeering prohibition is confined to Congress's use of a power under Article I (Printz and New York involved federal statutes enacted under the Commerce Clause) and so does not apply to congressional power exercised under the Reconstruction Amendments. (2) Perhaps what matters is that under the VRA state government does have the ability to avoid compliance--through the pre-clearance procedure--and so the state is no more commandeered than is a state subject to a court-issued injunction in response to a finding of a constitutional violation.
Discrimination in voting on the basis of race is unconstitutional. Moving a polling place can be a means of carrying out racial discrimination. The state was already providing the polling place. Requiring the state to prove that the move is not racially discriminatory is not requiring it to do anything it is not already doing.
As with the sovereign immunity cases, the Reconstruction Amendments changed the "constitutional" calculus here, even under the principles of current case law. Congress was explicitly given additional power.
Printz noted that judges are treated differently than executive and legislative officials for special constitutional reasons. The same applies to the enforcement of voting rights amendments.
The use of congressional power would still have to be "appropriate," including under the current somewhat hazy congruent and proportional test. If Shelby County gets some sort of win, it is likely that this test will be deemed to have been violated.
That said, the distinction I drew breaks down in the not-infrequent case where *some* change is required (e.g., post-census redistricting), such that the state (or a federal court) must adopt a new law. Even there, however, I think the feds could argue that Section 5 is just a prohibition on enacting a new law that's "retrogressive," and that the failure of a state to abide by that prohibition justifies a federal court crafting an interim law.
Foreign websites such as Pirate Bay have the files and are making them available for learning.The use of congressional power would still have to be "appropriate," including under the current somewhat hazy congruent and proportional test. If Shelby County gets some sort of win, it is likely that this test will be deemed to have been violated.
The use of congressional power would still have to be "appropriate," including under the current somewhat hazy congruent and proportional test. If Shelby County gets some sort of win, it is likely that this test will be deemed to have been violated.Those special constitutional reasons being the fact that the case was decided by judges.