May 16, 2008
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The Supreme Court this term has already decided a significant case on voter identification, as well as two somewhat less significant decisions on party primaries and judicial elections. It also has a campaign finance case pending, surrounding the "Millionaire's Amendment" to the McCain-Feingold law. But there's another election law case pending, Riley v. Kennedy , that has gotten very little attention but could turn out to be among the most important cases of the year. (The extent of coverage appears limited to this AP report, this analysis and oral argument recap from Scotuswiki, and this pre-argument post on Concurring Opinions by Erica Hashimoto. The oral argument transcript is here.)
The case comes under section 5 of the Voting Rights Act, and the question presented is "Whether states subject to Voting Rights Act pre-clearance requirements must receive Justice Department approval before implementing decisions of its highest court striking down previously pre-cleared state laws." The issue is rather arcane and the oral argument is hard to follow. But I was struck by this statement in the AP story (not the version linked above, but one I could only find on Westlaw) from Pam Karlan, who argued the case for the appellee:
After the hearing, Pamela Karlan, an attorney for the Democrats, said many of the justices seemed to have fundamental questions about the Voting Rights Act.
"We have a court that is very skeptical of the act," Karlan said.
It got me wondering what prompted Pam's comments, and it seems to be that Chief Justice Roberts advanced at argument a novel and potentially game-changing interpretation of section 5 requirements. As that section is currently understood, any time a covered jurisdiction intends to make a change in a voting practice or procedure, it must obtain preclearance from the Department of Justice (or a three-judge-court) before doing so. But Chief Justice Roberts seems to take the view, despite what he characterized as "dicta" from other Supreme Court decisions and acquiescence of Congress in this longstanding interpretation, that the only changes subject to preclearance are changes from the rules that were in effect in November 1964, when the Voting Rights Act was first adopted. Here are some snippets from the transcript:
CHIEF JUSTICE ROBERTS: Why did Alabama have to preclear anything? On November 1st, 1964, this was an appointed position. This is not a change from what was, quote, "in force or effect" on November 1st, 1964.
MS. KARLAN: Well, for one thing, this Court would have to overrule its decisions --
CHIEF JUSTICE ROBERTS: Oh, no, no. Those decisions are all dicta ...
MS. KARLAN: ... Now, the other thing is I will say that the Department of Justice regulations on this, which are quite clear, have been in effect since 1987. And in the 2006 -- in the 2006 re-enactment of the Voting Rights Act, if you look at the House report, they talk about Young against Fordice there. And they say "Mississippi's attempt to revive and to resuscitate" and those are the House's words, "to revive or resuscitate" -- the --
CHIEF JUSTICE ROBERTS: I think you're quite right on the DOJ regulations and the House report, but I just don't see how that squares with the statutory language.
MS. KARLAN: Well, Your Honor, if I could just make an observation about section 5 more generally in Allen, and I'll start here. In Allen, itself, this Court recognized that the text of section 5 doesn't provide for private rights of action, and yet it found them.
It recognized that the text of section 14 of the Voting Rights Act suggests that the only place that can be -- that the only place that can litigate section 5 --
CHIEF JUSTICE ROBERTS: So because we've ignored the text in other areas, we should just forget about it here?
MS. KARLAN: No, because that's -- that's the -- those sets of decisions by this Court have been ratified by Congress and have been the longstanding practice under section 5. You should continue that.
CHIEF JUSTICE ROBERTS: I thought that they ratified -- these cases were ratified by Congress, but Congress did not change the language in the statute.
MS. KARLAN: Because it thought that the purpose of section 5 -- if I could spend just one sentence on this -- the purpose of section 5's November 1st language was to prevent a sort of game of Whac-A-Mole in which the States would keep changing the practice. And the idea of that freeze was to hold it in place so that it could be challenged as a constitutional matter before the State switched again. It wasn't to create a safe harbor against attacks on the November 1st practice.
And here's more, with the U.S. government's lawyer as amicus:
CHIEF JUSTICE ROBERTS: Counsel, you talk about force and effect. Of course, the statute says "force or effect on November 1st, 1964." Do you have anything to add to Ms. Karlan's response on my quaint fixation on the language of the statute?
MR. SHANMUGAM: Well, it isn't quaint at all. I would say that I do think that as a textual matter one could perhaps make the argument that where a covered jurisdiction changes its voting practice after the statutory coverage date and then enacts basically a new version of the pre-existing practice, that the new practice could as a formal matter be said to be a new practice. But I want to make two additional points. The first is that the question of whether the statute covers reversion to coverage date practices is really not properly before the Court. Appellant seemingly did not raise it before the district court and it is not --
CHIEF JUSTICE ROBERTS: Well, that can't tie our hands in properly interpreting the statute.
MR. SHANMUGAM: Well, it's not within the scope of the question presented, either. The question presented focuses solely on the question of whether changes precipitated by State court decisions require preclearance. And that's a question that this Court has answered twice in Hathorn and Branch.
The only other thing that I would say is 11 that it has been not only the consistent interpretation of the attorney general, but also the consistent interpretation as far as we are aware of the lower court, that the statute does reach reversions to preexisting practices as well.
CHIEF JUSTICE ROBERTS: I don't see how regardless of how consistent the interpretation is, how can you read 'November 1st, 1964'" to mean anything other than that date?
It would not surprise me to see Justices Scalia, Thomas, and Alito joining on to this new and stingy interpretation of the Voting Rights Act. (I am not sure if Justice Kennedy would go along.) But the Chief Justice has never been a friend of expansive interpretations of the Voting Rights Act (recall his remark about the "sordid business" of "divvying up voters by race" in the LULAC case). If and when the three-judge court decides the direct challenge to the constitutionality of Section 5 in the NAMUDNO case, the case will make it to the Supreme Court where the Chief Justice will be able to show his skepticism yet again.
Rick Hasen is the William H. Hannon Distinguished Professor of Law at Loyola Law School in Los Angeles.