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Tuesday, August 30, 2011

Arizona Challenge to the Voting Rights Act

The state of Arizona has filed a lawsuit challenging the constitutionality of the Voting Rights Act (see complaint here - h/t Rick Hasen).  In its complaint, Arizona challenges the Act on several grounds, including that Section 5 of the Act infringes on state sovereignty by requiring states to preclear changes to their election laws with the federal government before the changes can go into effect.  Back in 2009, the Supreme Court was quite sympathetic to this argument, even though it ultimately decided to uphold the constitutionality of this provision.  

As I argue in my new draft, the Voting Rights Act should not be invalidated on the grounds that it infringes on state sovereignty because states are not sovereign over federal elections and have, at best, limited sovereignty over practices that govern state elections.  Consequently, the Court should defer to Congress’s determinations about what remedies are needed to address discrimination in voting.  The draft is here.    

Posted by Franita Tolson on August 30, 2011 at 09:58 PM | Permalink


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I have a lot of questions, but first, a very specific one. Inasmuch as your argument relies on Congress's power under the Elections Clause, can one really call Section 5 a time/place/manner regulation, or a procedural regulation? If you look at the text of Section 5, it appears to be a ban on all sorts of procedures, but really, isn't Section 5, like the statute invalidated in Gralike, a law engineered to dictate certain outcomes, namely, the election of minority-preferred candidates? This is particularly the case of Section 5, where, unlike Section 2, we're no longer in the land of equal electoral opportunity, but dealing with a statute that forbids the diminution of existing opportunities to elect "preferred candidates of choice." How can that be deemed procedural?

Posted by: Asher Steinberg | Sep 2, 2011 1:27:43 AM

Procedural regulations, in my view, are time/place/manner regulations. If I understand your question correctly, I think that your point is that Section 5 qualifies as neither. Procedural rules are always going to influence and sometimes dictate substantive outcomes. That is why the line that the Court was trying to draw in Gralike was unrealistic. Nevertheless, Section 5 is still a procedural rule designed to ensure that minorities are not worse off as a result of a state’s change to its election laws than they were under the old law. This is why “nonretrogression” is the standard for Section 5 claims and not “ability to elect candidate of choice” which is more apt descriptor of Section 2 claims. Sometimes whether minorities are “worse off” under Section 5 means that minorities are less able to elect their candidate of choice under the new rule, but the Supreme Court has also indicated that an electoral rule that is discriminatory (and by definition impacts a minority groups’ ability to elect their candidate of choice) should be precleared if it is not retrogressive. If anything, Section 5 is more about maintaining the status quo than it is about increasing the power that minorities have at the polls (indeed, that is the role that Section 2 plays). In practice, preclearance is liberally granted which means that Section 5, at its most basic level, is a procedural rule that certainly has the potential to affect substantive outcomes (and has been used for this purpose like all procedural rules), but rarely has this effect. When it does significantly influence substantive outcomes, these are usually the cases that make it to the Supreme Court.

Posted by: Franita Tolson | Sep 2, 2011 1:58:03 AM

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