Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Corey Brettschneider corey_brettschneider at brown.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
Jonathan Hafetz jonathan.hafetz at shu.edu
Jeremy Kessler jkessler 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 yu.edu
Rick Pildes rick.pildes at nyu.edu
David Pozen dpozen at law.columbia.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
David Super david.super at law.georgetown.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Nelson Tebbe nelson.tebbe at brooklaw.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
As I said in my initial post about Rick Hills's comments on the Voting Rights Act and civil rights lawyers, I don't want to get into a long exchange about the relationship between local government and section 5. In particular, blogging often leads people to shoot too much from the hip on complicated topics (Balkinization is a rare and welcome exception and I don't want to reduce the average quality of the posts.) Rick posted a response on Prawsfblawg that, among other things, recognizes that the tone of his earlier post was a bit much. But now that his more ad hominem accusations have been cleared away, I think it's worth this one additional comment from me about the nature of the substantive disagreement Rick and I have. Then I'll stop.
If I understand Rick’s general point correctly, he criticizes the Voting Rights Act for being unable to recognize the benefits that might (note, might) accrue to minority citizens if states were required to devolve more power away from state-level government and to local governments. So, for example, he writes that
Centralization in the South is a vestige of the Redemption movement’s efforts to disenfranchise black voters. Moreover, centralization is racially discriminatory not only in purpose but also in effect. Simply put, black voters would be better served if counties like Montgomery and Mobile (in which 40% of the county commissioners are black) had more power and the state legislature (in which roughly 20% of the legislators are black) had less. Likewise, Black voters would have more power if the ten councilors of the City of Birmingham (seven of whom are black) had more power.
I’ll turn to the history in a moment, but before I do, it’s worth noting a few points. Rick is undoubtedly correct that there will be jurisdictions within nearly every state where a racial minority will comprise a higher relative share of the electorate than it does in the state as a whole. So if we were to hold everything else constant except for the decisionmaking body, we might expect that minority citizens would be better off if the decision were made by a body selected by a majority-minority electorate.
But we can’t hold everything constant. One thing that complicates the calculus is the resources available to the decisionmaking body. A lot of smaller jurisdictions (say, cities) with high concentrations of minority residents are poorer than the larger jurisdiction (e.g., the state) of which they’re a part. If the entire responsibility – both decisional and for implementation – is devolved downward, city residents may be worse off. A simple hypothetical drawn from the facts in San Antonio v. Rodriguez may make this point. Local officials in a high-minority city might choose a higher mill rate for taxing property to pay for education, but with a smaller property base may be unable to generate the level of revenue that the state, if it paid for education, would produce.
Another complication comes from a sort-of Madisonian point about coalitions and factions and its interaction with the famous V.O Key point about the sometimes curvelinear influence of minority voters: up to a certain point, as minority presence increases, so does minority influence, but there’s a part of the curve where minority voters are a big enough bloc that white voters feel threatened and are not yet a big enough bloc either by themselves or with white allies to control the decisionmaking process. Think about it this way: minority voters in a city may be 40 percent of the voters in a particular city in Alabama, 25 percent of the voters in the state as a whole, and 12 percent of the voters in the United States. That doesn’t mean that invariably black voters do better, even now that they’re much more fully enfranchised, on the local or state level than they do at the national level. Why is this? Complicated reasons, of course. But one is the ability to build coalitions at the national level in which race perhaps plays a much smaller role because some national-level coalition partners come from places where race has much less salience. The classic example people often use is the enthusiastic support of farm-state legislators for programs such as school lunches and food stamps that greatly benefit poor minority communities.
Note: I’m not saying Rick is wrong, but simply that even the general question “is devolution down to the level at which a minority has the greatest share of the electorate an across-the-board good thing?” is a complex one. Now let’s turn to the particularities of the Voting Rights Act.Section 5 was enacted against a backdrop of pervasive racial discrimination in the political process in specific jurisdictions. (If you’re interested in the arguments about the 2006 extension of section 5, there’s lots of good scholarship out there, plus a masterful opinion from the D.D.C. last week in Northwest Austin Municipal Utility District No. 1 v. Mukasey, discussing the issue.) Its central purpose, as described in Brian Lanssberg’s recent, and wonderfully informative Free At Last to Vote, which discusses the Alabama origins of section 5, was a “freezing principle”: because covered jurisdictions (like Alabama) so often changed their election law practices and procedures in an attempt to perpetuate black disefranchisement and to circumvent federal court orders striking down existing discriminatory practices, their practices should be subject to federal review (“preclearance” before going into effect).
Let’s talk first about the precise alleged change in the Riley litigation. The starting point for our claim was that in 1985, the Alabama Legislature adopted special elections rather than gubernatorial appointment to fill midterm vacancies on the Mobile County Commission. That legislation was required to (and did) obtain preclearance before it went into effect. The question in the section 5 proceeding before the DOJ in 1985 was whether the change from gubernatorial appointment to election caused a retrogression in minority voters’ political power. Put in this simple way, the answer is relatively clear, I should think: black voters, under Rick’s analysis as I quoted it above, were better off: they are a majority of the electorate in the relevant commissioner district, and thus can elect the candidate of their choice; before, they were dependent on gubernatorial appointment and the governorship is controlled by a majority-white electorate that is composed, overwhelmingly (like north of 90 percent) of people who live outside the relevant district. If – and this “if” is what we lost on before the Supreme Court – the adoption of special elections instead of gubernatorial appointment had gone into effect, then it’s even clearer that a law shifting back to gubernatorial appointment to fill vacancies on the Mobile County Commission would render black voters worse off. That would be true even if the law adopted gubernatorial appointment statewide.
So where’s the disagreement between Rick and me? Well, perhaps it’s with the following. Rick hypothesizes that if the Alabama Supreme Court is permitted to strike down the 1985 law giving voters in Mobile County, but not elsewhere in the state, the right to select replacement candidates through election rather than gubernatorial appointment, then the legislature would choose to allow voters everywhere in the state to use election rather than appointment, and now not only with black voters in Mobile be better off, but so will black voters in other jurisdictions in the state. He calls this a “fish or cut bait” point. It’s also, to borrow I term I use in an article on equal protection remedies (Pamela S. Karlan, Race, Rights, and Remedies in Criminal Adjudication, 96 Mich. L. Rev. 2001 (1998), an incentive for the legislature to “level up” and give everyone this benefit, rather than forgoing providing it to Mobile.
But would it? I can’t answer that question. The reason I can’t answer it is that I don’t know how legislators from other Alabama jurisdictions felt about this issue with respect to their own jurisdictions. Even today, what we know is that the legislature is prepared to do this some places and not interested (I can’t say whether resistant or just uncaring) in doing it in others.
Perhaps on a more basic level, Rick and I see this particular decision in a different light from one another. Whether local control or centralization is good or bad, my guess is that in most states the structure of county government is set out at the state level. So the question here is not whether individual counties or the state of Alabama will decide whether individual counties’ commissioners are elected or appointed. That’s going to be decided at the state level. The question up for grabs is whether the state will use a uniform system statewide or will take into account the particular concerns of different jurisdictions in deciding which system to use. I don’t have a sense from Rick’s post what his view on this latter question would be. But I don’t think this is a “Dillon’s Rule” issue of the kind Rick discusses. As far as I’m aware, across the country, states set, for example, uniform election days, uniform candidate eligibility requirements, and uniform lengths of terms for county governments, while varying, for example, the number of county legislators based on county population.
Or perhaps the disagreement lies here: section 5 of the Voting Rights Act doesn’t ask that question at all. At least in the first instance, with respect to the changes involved in Riley, the preclearance authorities look to whether the change has a discriminatory purpose or effect on minority voting strength. The change that was at issue in 1985 – change # 1 – was a change only with respect to how vacancies on the Mobile County Commission would be filled. The form in which Alabama made that change – through local legislation rather than a general adoption of election-rather-than-appointment – had neither a discriminatory purpose (no one has ever suggested, and I don’t take Rick to be doing so here, that the sponsor of the bill, State Senator Michael Figures, an African-American legislator from Mobile, had any discriminatory motive, and my best guess as to the intent of the rest of the legislature is that it intended, a la Alabama tradition, to defer to the preferences of the local legislators on a matter of particular interest to a given locality) nor a discriminatory impact. Certainly not on the voters directly affected by the change, which left all other voters in Alabama in the same position. So I don’t take Rick to be suggesting that, even if DOJ understood the world as he does, that DOJ should have objected to the 1985 change as having a racial discriminatory purpose or effect and required Alabama to keep appointing, rather than electing interim commissioners in Mobile. The change that was at issue following 2006 – change # 2 – which authorized variety in the method of filling vacancies (variety that Rick presumably would celebrate if chosen by the county commissions themselves – that’s home rule – but disapproves because local legislative delegations [which after all are “local” in an important way] persuaded their colleagues in the legislature to permit them), doesn’t have a discriminatory purpose or a discriminatory effect, as far as I can tell. And the Alabama Supreme Court’s 2006 decision – not to permit revival of the 1985 statute entirely as a matter of statutory interpretation of the legislature’s purpose with respect to whether the 2006 statute applies retroactively – does literally nothing to further Rick’s campaigns against local legislation and in favor of home rule. So why is Rick defending that decision? I don’t know.
What Rick is arguing is something a bit different. He’s suggesting that the Alabama Supreme Court did the right thing in its 1987 decision striking down the change from appointment to election in 1985 because the 1985 change took the form of local, rather than statewide, legislation. Whatever else may be true of that decision, the Alabama Supreme Court did not make it because that court thought it was helping black people. As I suggested in my earlier point, there’s something at least a tad troubling about the fact that the Alabama Supreme Court adopted a more aggressive enforcement posture against local legislation roughly contemporaneously with the arrival of black state legislators in significant numbers in the Alabama Legislature. Now that black legislators from heavily black jurisdictions were proposing local legislation, the court seemed less inclined to permit such legislation. In light of the state’s history, this is a bit disquieting.
Let’s talk about that history for at least a minute. The other major substantive disagreement Rick raises in his post has to do with the Alabama Constitutional Convention of 1901. Rick writes:
[Alabama’s] centralized system of state government is hardly something to be accepted with indifference. It is, in part, the product of white supremacists’ efforts to deprive black voters of political power in Alabama between 1874 and 1901. White supremacists wanted to suppress county power because “Radical” – meaning Black Republican – voters dominated certain counties like Montgomery, Wilcox, and Dallas. This practice of stripping local governments of power to deprive black voters of power was typical of the Redemptionists throughout the South. Because state legislative districts tend to be large enough that the white majority can out-vote the Black minority, it makes sense for a racial majority to concentrate power over counties in the state legislature. Allowing state legislative delegations to control counties is a time-honored southern strategy for diluting Black voting strength.
Amazingly, Pam conjectures that the ban on local laws in the 1901 Constitution was somehow inspired by racism – but all she can offer to support this contention is the well-known fact that the 1901 Constitution was generally an effort by white supremacists to suppress the Black vote. Pam overlooks the actual facts: White supremacists at the 1901 convention quite deliberately deprived county governments of autonomy as a means by which to disenfranchise Black voters and other “radicals.” In response to a proposal to give the General Assembly the power to confer “home rule” on counties, opponents decried county officials as incompetent and “radical” – thinly veiled code words for “black..”
Rick and I roughly agree on the history. What we disagree on is what lessons to draw from it. As I’ve explained above, Rick is pointing to the question of home rule, which is not precisely the same thing as a prohibition on locality-specific legislation on state-level questions. It seems entirely consistent to me for a racist constitutional convention simultaneously to take power away from local governments to make sure that those governments – even if currently run or one day run by black voters – can’t respond to their black constituents and to prohibit locality-specific legislation so that, even if the black community one day elects legislators those legislators will be disabled from making deals at the state-level to get legislation on state-level problems that benefits their constituencies. My claim is that the 1901 convention was shot through with racism and that, at the very least, under the circumstances of the time, Art. IV, § 105 was adopted because it was entirely consistent with – and in no way undermined – the effective disenfranchisement of black folks. Today, to the extent that an anti-local legislation principle precludes striking certain kinds of bargains by state legislators elected from majority-black constituencies in states where home rule is also constitutionally precluded, the principle may often diminish minority citizens’ ability to obtain policies they want. This is, at best, a second-best world.
Rick is convinced that decentralization is almost invariably good for black voters. I’m agnostic on this point. I think, like much else in the world, it depends a lot on the context. We disagree with Rick about what Heather referred to in an earlier post on an unrelated topic as the “here-to-there” problem: if Rick and the voting rights bar both want minority citizens to participate fully and equally in the political process, what’s the best way of getting there?
And of course we do recognize that what Rick calls “the distribution of power between constituencies” should be relevant to questions of voting rights. Rick points out that the Supreme Court foreclosed thinking about this issue in section 5 cases in its decision in Presley v Etowah County, 502 U.S. 491 (1992). That decision held that a “centralizing change” – taking power away from a district’s elected representative and giving it to the commission as a whole – was not a change affecting voting, even though this centralization occurred immediately after the commission was required, in the wake of a lawsuit brought under section 2 of the Voting Rights Act, to create districted elections and to draw a district from which black voters could elect the candidate of their choice. The lawyers in the case who made the claim that the distribution of power between constituencies should matter? Well, three of them were Ed Still, Jim Blacksher, and me. So maybe the reason the law is, according to Rick, “myopic” and shows “indifference to law-term considerations” is because the Supreme Court doesn’t listen to voting rights lawyers enough, rather than it listens to us too much. Posted
by Guest Blogger [link]
I see both of these points as being structuralist arguments. Whether there is devolution or not makes little difference to me. Centralization can control to enhance minority voting rights or to obstruct them. So can devolution. The question at the center is whether the body politic has the commitment to full citizenship for its minority members or is more interested in disenfranchising those minorities for personal gain or other animus. Just like who is sitting at the Civil Rights Division determines what Section 5 is to mean in a given period, it is that fundamental question to America and its power elites that has to be addressed. All the rest is mechanisms. At least that's how it looks from here. Best, Ben
Whatever else may be true of that decision, the Alabama Supreme Court did not make it because that court thought it was helping black people. As I suggested in my earlier point, there’s something at least a tad troubling about the fact that the Alabama Supreme Court adopted a more aggressive enforcement posture against local legislation roughly contemporaneously with the arrival of black state legislators in significant numbers in the Alabama Legislature.
Now I know nothing about Alabama law, but according to Hills, the AL Supreme Court actually backed down on local legislation in 1986. So I'm not sure you're right about their adopting a tougher posture when more black state legislators started showing up. Also, it's a pretty long leap from "the court wasn't trying to help black people" to "maybe it was trying to hurt them." Maybe they were just neutrally applying a provision of the state constitution. Or maybe they were trying to hurt black voters. Why does it matter? As long as there's a legal basis for their decision, I don't see that it does. It's not as if they just pulled Stokes v. Noonan out of thin air. Finally, if you'd won in Riley, all kinds of crazy consequences could ensue. For instance, a party with 51% of the votes in the legislature could say, "we don't have the votes to amend the state constitution, and we'd really like to pass this law that breaks it (but enhances minority voting strength), but that's okay because we can just pass the unconstitutional law, get it precleared, hold an election under the law, and then when the state supreme court finds it unconstitutional after the fact, it won't matter because DOJ will deny that ruling preclearance!" What a great idea! Or not.