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Tuesday, June 25, 2013

Shelby County Highlights

The Chief writes well and clearly.  For those of you who have not yet had time to read Shelby County, but would like a little taste of the key passages:

  • "Under [Respondents'] theory, however, §5 would be effectively immune from scrutiny; no matter how 'clean' the record of covered jurisdictions, the argument could always bemade that it was deterrence that accounted for the good behavior."
  • "It was in the South that slavery was upheld by law until uprooted by the Civil War, that the reign of Jim Crow denied African-Americans the most basic freedoms, and that state and local governments worked tirelessly to disenfranchise citizens on the basis of race. The Court invoked that history—rightly so—in sustaining the disparate coverage of the Voting Rights Act in 1966. . . . But history did not end in 1965."
  • "The [Fifteenth] Amendment is not designed to punish for the past; its purpose is to ensure a better future."
  • "Regardless of how to look at the record, however, no one can fairly say that it shows anything approaching the 'pervasive,' 'flagrant,' 'widespread,' and 'rampant' discrimination that faced Congress in 1965, and that clearly distinguished the covered jurisdictions from the rest of the Nation at that time."
  • "Viewing the preclearance requirements as targeting [second generation barriers] simply highlights the irrationality of continued reliance on the §4 coverage formula, which is based on voting tests and access to the ballot, not vote-dilution."
  • "[T]his case is about a part of [McCulloch] that the dissent does not emphasize—the part that asks whether a legislative means is 'consist[ent] with the letter and spirit of the constitution.'"
  • "[F]our years ago, in an opinion joined by two of today’s dissenters, the Court expressly stated that '[t]he Act’s preclearance requirement and its coverage formula raise serious constitutionalquestions.' The dissent does not explain how those 'serious constitutional questions' became untenable in four short years."
  • "[I]n [Northwest Austin], we expressed our broader concerns about the constitutionality of the Act. Congress could have updated the coverage formula at that time, but did not do so. Its failure to act leaves us today with no choice but to declare §4(b) unconstitutional."

Posted by Will Baude on June 25, 2013 at 05:30 PM in Constitutional thoughts | Permalink


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Yea, I guess my problem is that the opinion read to me like an individual rights case rather than a Congressional power case. Just the individual rights here were the dignity of states, which makes me queasy.

Posted by: anon | Jun 26, 2013 9:51:13 AM

Anon -- I also think it would have been helpful if the opinion had been more obviously "built" around the "appropriate legislation" language. That said, the Chief does open Part I-A with that language, and I think one can read the discussion about "equal sovereignty" in light of the "is this appropriate?" question and the McCulloch language about "consistent with the letter and spirit."

Posted by: Rick Garnett | Jun 26, 2013 9:26:07 AM


Stupid question from person who didn't find the opinion that clear. Is it constitutional because "federalism principles," or is there a specific constitutional text that is guiding the analysis? I would've guessed that the question is whether VRA sec 4 is "appropriate legislation" under 15A sec 2, but I didn't see the question framed that way.


Posted by: anon | Jun 26, 2013 7:11:17 AM

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