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Monday, February 04, 2013

Where are all the conservative election law academics supporting the invalidity of Section 5 of the Voting Rights Act?

OK, time to take the gloves off and be a little provocative.

My law school's Diversity Committee (at my suggestion) wants to put on a panel on Shelby County v. Holder, the Supreme Court case about the constitutionality of Section 5 of the Voting Rights Act.  As most of you know, Section 5 requires certain "covered" jurisdictions -- mostly those in the South or other areas with a history of racial discrimination -- to seek preapproval, or "preclearance," from the federal government before making any changes to its election procedure or administration.  In 2009, the Supreme Court punted on the constitutionality of Section 5 using a very tortured statutory analysis.  Now the constitutionality of Section 5 is squarely before the Court; the Court hears oral argument on February 27.

I figured that it would not be too hard finding an academic on each side of the debate regarding Section 5's constitutionality for our panel.  But a funny thing has happened:  it's been exceedingly difficult to identify an appropriate person for the "conservative" view that the Court should strike down Section 5.  And I don't think it's that I don't know enough people.  A perusal of the amicus briefs filed in the case shows that there are a lot of well-known academics advocating for the Court to uphold Section 5, but hardly any academics who filed amicus briefs in favor of striking down the Act.  An online Reuters symposium is taking it as a given that the Court will invalidate Section 5 and asking what is next, but none of the participants have actually advocated for that result.  Moreover, a couple of election law academics who I consider to lean more conservative told me privately that they do not necessarily agree with the argument that Section 5 is unconstitutional.

This suprised me.  Certainly there are prominent conservative academics who support the unconstitutionality of this provision, right?  Conservative academics have been quite vocal in other important cases, such as the health care case last Term.  

What's going on here?  I can think of three plausible explanations:  First, I'm just overlooking someone in academia who has spoken out against Section 5 in the context of this case (a notion which, I'm sure, you will confirm in the comments).  Second, legal academia, or perhaps election law academia, is skewed toward liberal voices.  Finally, us academics are just that much more enlightened than those practictioners and think tank members who are arguing against Section 5 to the Court.

I bet the first explanation is correct, but I still find it striking that so few academics are filing briefs or otherwise being vocal in this case in favor of Section 5's invalidity.  Of course, I'll go on record here and hope for a fourth explanation:  the case for Section 5's constitutionality is so clear that the liberal election law professors simply have the better of the argument!

By the way, anyone want to come to Lexington for this panel?

Posted by Josh Douglas on February 4, 2013 at 11:04 AM | Permalink

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A fifth hypothesis: both conservatives and liberals who are skeptical of Section 5 aren't speaking out, because the political climate in academia is such that the penalties outweigh the rewards of candor. Relatedly, do you know many conservative election law scholars?

Posted by: An anonymous section 5 skeptic | Feb 4, 2013 11:29:08 AM

Anonymous: Thanks for your comment! The desire not to speak out does not explain the number of election law professors filing amicus briefs in favor of Section 5. And yes, there are at least a handful of conservative election law scholars, although I agree that the liberal views probably outweigh the conservatives in election law scholarship.

Posted by: Josh Douglas | Feb 4, 2013 11:40:54 AM

Perhaps you don't want to "out" the conservative election law scholars, but how many are there that come to mind? This isn't my area, but the only one I can think of is Bradley Smith.

I would also add that the world of "conservative" law professors is stacked pretty heavily towards libertarians; political causes with a clear libertarian valence will tend to draw more support than will other kinds of causes.

Posted by: Orin Kerr | Feb 4, 2013 11:51:26 AM

Orin: I agree that it's probably best not to name names, but there are a few others besides Brad Smith. But that obscures the larger point. What if we change it from "election law scholars" to "constitutional law scholars." Surely there are constitutional law scholars who believe Section 5 is unconstitutional. And this would also seem to fit into the libertarian mold: I would think a law that requires localities to seek federal government approval for any voting change, no matter how small (i.e., moving a polling location down the block) would raise the hackles of libertarians. And yet there are several amicus briefs from academics, including election law and other law professors, as well as political scientists, in favor of Section 5's constitutionality, but hardly any on the other side. What gives?

Posted by: Josh Douglas | Feb 4, 2013 12:26:15 PM

I know there are some law profs who think section 5 is unconstitutional, even though they still believe in the overall goals of the provision. I don't know if there is a liberal/conservative divide on this point as opposed to a general sense by some that Congress dropped the ball by not updating the coverage formula and the Court is going to hit them for it. One doesn't have to disagree with the remedy of preclearance in thinking that section 5, as currently constituted, is unconstitutional. But my sense is that most people are reluctant to make this point because the Voting Rights Act has achieved canonical status.

Posted by: Franita Tolson | Feb 4, 2013 12:39:29 PM

Three possibilities that occur to me are Katharine Inglis Butler of the University of South Carolina, Keith Gaddie of the University of Oklahoma, and Charles Bullock of the University of Georgia.

Posted by: Roger Clegg, Ctr for Equal Opportunity | Feb 4, 2013 12:48:34 PM

Josh,

Not all federal regulation raises the hackles of libertarians, The issue is usually whether the law leads to more government regulation of individuals in their economic or personal affairs. I don't know much about Section 5, but I vague understanding is that it doesn't impact that issue one way or the other.

Posted by: Orin Kerr | Feb 4, 2013 1:28:22 PM

Your second guess is the correct one. " Second, legal academia, or perhaps election law academia, is skewed toward liberal voices. "

Posted by: Charlie Crispy | Feb 4, 2013 2:00:13 PM

In addition to Roger Clegg's suggestions, you might try Dr. Abigail Thernstrom, who is one of three people submitting their own amicus brief arguing that section 5 is unconstitutional. Dr. Thernstrom is a political science rather than a law professor but I believe she is a leading authority on voting rights. If she can't do it she may have ideas for others. I believe two of the three people Roger mentioned are also political science professors, and the third is emerita.

My hunch as to a substantial part of the reason for reticence is that being on the "wrong" side of certain questions (primarily questions involving racial minorities, gays and women)carries considerably more stigma within legal academia than other conservative or libertarian dissenting positions.

Posted by: Lee Liberman Otis | Feb 5, 2013 10:05:26 PM

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