February 24, 2016

Ari Berman, in his recent book Give Us the Ballot, traced the history of the Voting Rights Act (VRA). In discussing its fate during the Reagan administration, he noted the influence of a young lawyer in the Justice Department, John Roberts, about whom we would hear much more later. Roberts wrote numerous memos arguing for a limited interpretation of the Act.

The Voting Rights Act is based upon the Fifteenth Amendment, which provides as follows:

The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.

The Congress shall have power to enforce this article by appropriate legislation.

Section 2 of the VRA stated that "No voting qualification or prerequisite to voting, or standard, practice, or procedure shall be imposed or applied by any State or political subdivision to deny or abridge the right of any citizen of the United States to vote on account of race or color." That seems straightforward enough, but enforcement of it turned out not to be. The Supreme Court, in City of Mobile v. Bolden (1980), considered a claim under Section 2. The plurality opinion pointed out that the Court previously had considered challenges brought directly under the Amendment and, in ruling on them, it had held that "action by a State that is racially neutral on its face violates the Fifteenth Amendment only if motivated by a discriminatory purpose." In other words, proof of intent was required.

Although it should have been obvious that the VRA was designed to enforce the Amendment, which gave Congress the power to do so, the opinion in Mobile declared that the language of Section 2 of the VRA "no more than elaborates upon that of the Fifteenth Amendment," and that the legislative history "makes clear that it was intended to have an effect no different from that of the Fifteenth Amendment itself." Why, then, one might ask, did Congress bother to enact it? Ignoring that puzzle, the plurality held that any claim under Section 2, like one under the Amendment, would fail unless there was proof of discriminatory intent.[11]   Intent is notoriously difficult to prove in any context; requiring it under a remedial statute dealing with state action is judicial obstruction.

Early in the Reagan years, the VRA was up for renewal, and lawyer Roberts was an enthusiastic supporter of the intent requirement. He urged the administration to uphold that principle in dealing with Congress regarding renewal. Mr. Berman quoted from one of Roberts’ memos, of December 22, 1981, in which he argued that "violations of §2 should not be made too easy to prove, since they provide a basis for the most intrusive interference imaginable by federal courts into state and local processes."[12] The House, however, proposed an amendment to §2 which would overturn the Court’s requirement of intent. Roberts responded with a memo of February 23, 1982, arguing against the change and attaching the portion of his earlier memo setting forth the "intrusive interference" theory quoted above.[13]   Fortunately, the administration was less doctrinaire than Roberts and, in 1982, President Reagan signed the renewed Act, which overturned the Mobile interpretation; the restated Section 2 would be violated if a voting practice had the effect of discriminating against minority voters, whether or not the plaintiffs could establish that it was motivated by bias.

Thirty-one years later, Chief Justice Roberts had the opportunity to enforce his views, although with a different part of the VRA as his target. In Shelby County v. Holder (2013), in which he wrote the majority opinion, the issue was the viability of §5 of the VRA which, unlike §2, applies only to jurisdictions with a history of racial discrimination. However, to Roberts the issue was the same, states’ rights, including the right to equal treatment: "The question is whether the Act's extraordinary measures, including its disparate treatment of the States, continue to satisfy constitutional requirements." He decided that one of the extraordinary measures, the formula in §4(b) for defining jurisdictions covered by §5, was obsolete, even though it had been reaffirmed by Congress in 2006. Even if it were out of date, and acknowledging the unequal treatment of states, what part of the Constitution did the Act offend?

Roberts first invoked a general principle: "Outside the strictures of the Supremacy Clause, States retain broad autonomy in structuring their governments and pursuing legislative objectives." True, but too vague to serve; certainly there must be a Constitutional peg on which to hang the argument. Oh yes: "Indeed, the Constitution provides that all powers not specifically granted to the Federal Government are reserved to the States or citizens. Amdt. 10." Well, no, it doesn’t; the Tenth Amendment does not include the word "specifically."

Undaunted, he continued: " '[T]he Framers of the Constitution intended the States to keep for themselves, as provided in the Tenth Amendment, the power to regulate elections', " quoting Gregory v. Ashcroft (1991), which does say that, but cites as its authority a non-majority opinion. However, authority or none, that argument is spurious. In addition to being a weak reed (and misquoted by Roberts), the Tenth Amendment clearly must yield to the Fifteenth in this area. The Tenth provides, tautologically, "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." With or without Roberts’ amendment, it says nothing about voting rights. The Fifteenth, specifically, addressees voting rights, and it, specifically, delegates powers to the federal government. The Tenth has no place in the argument.

Stripped of the attempt to find a relevant Constitutional provision, Justice Roberts’ holding comes down to two assertions with which he began his opinion. "Preclearance" requires covered jurisdictions to obtain permission, from the U. S. Attorney General or from the U. S. District Court for the District of Columbia, before enacting any law related to voting. That, he said, is "a drastic departure from basic principles of federalism." Applying that requirement only to some states — he refers to this as "disparate treatment of States" — is a "dramatic departure from the principle that all States enjoy equal sovereignty."

Under this theory, states’ rights are part of federalism, a term more often used than defined. According to Roberts, federalism necessarily implies "equal sovereignty," but that is a meaningless concept: the requirement that states be treated equally is inconsistent with the notion that they are sovereign. Sovereignty, by definition, means immunity from outside authority; if states are sovereign, they can’t be "treated" by another authority (the federal government), equally or otherwise. A possible fallback position would be to assert that states have limited or qualified sovereignty. (That is more or less the truth, although it would be more accurate to say that states have certain areas of jurisdiction). However, conceding limits on sovereignty makes it difficult to claim that some fundamental right of a state has been violated. In discussing the Tenth Amendment, the Chief Justice said: "This allocation of powers in our federal system preserves the integrity, dignity, and residual sovereignty of the States." "Residual sovereignty" and "broad autonomy" also seem to contemplate something too restricted to be of any aid to his argument. The anomaly runs through his analysis, but he seemed unaware of it.

The Constitution doesn’t support the argument, so where do those core concepts — the requirement of an updated formula, and equal sovereignty — come from? They come from irrelevant comments — dicta in legalese — in an earlier opinion by Chief Justice Roberts.

He wrote for the majority in Northwest Austin Utility District v. Holder. The plaintiff utility district had requested, using the Act’s "bail-out" clause, to remove itself from the coverage of VRA §5. The lower court found it to be ineligible to use that procedure. The utility district appealed, again requesting bailout, but arguing in the alternative that the preclearance requirement of §5 was unconstitutional. The Court held that "the district is eligible under the Act to seek bailout." That decided the case: "We therefore reverse, and do not reach the constitutionality of §5." Perhaps "we" did not reach it, but Roberts did; he went on at length about the dubious constitutionality of the Act. (He was so eager to do so that he began his opinion with this: "The plaintiff in this case is a small utility district raising a big question—the constitutionality of §5 of the Voting Rights Act.")

He anticipated his claim in Shelby County that the coverage criteria were obsolete: "These improvements [in minority voting] are no doubt due in significant part to the Voting Rights Act itself, and stand as a monument to its success. . . . It may be that these improvements are insufficient and that conditions continue to warrant preclearance under the Act. But the Act imposes current burdens and must be justified by current needs." No authority was cited.

Then there was the matter of states’ rights: "The Act also differentiates between the States, despite our historic tradition that all the States enjoy ‘equal sovereignty.’ " For that proposition, he cited United States v. Louisiana (1960), in which the state asserted sovereignty as a defense to a claim by the federal government (and lost), and Texas v. White (1869), which referred to state sovereignty under the Articles of Confederation. One might sense a reach. The Chief Justice liked those inapposite sources so much that he resorted to them again in Shelby County : "Not only do States retain sovereignty under the Constitution, there is also a "fundamental principle of equal sovereignty" among the States, citing again, Louisiana and White , along with Northwest Austin and, so no one would miss the point, italicizing "equal."

However, the claim that equal treatment is required is as unsupported as is sovereignty. The Court held in South Carolina v. Katzenbach (1966), while ruling on a challenge to the constitutionality of the VRA, that "The doctrine of the equality of States . . . does not bar this approach [of §4], for that doctrine applies only to the terms upon which States are admitted to the Union, and not to the remedies for local evils which have subsequently appeared." (The dissent in Shelby County pointed out examples of unequal treatment). 

In Shelby, Roberts attempted to avoid that ruling by, again, citing an irrelevant decision and himself: "Over a hundred years ago, this Court explained that our Nation ‘was and is a union of States, equal in power, dignity and authority.’ Coyle v. Smith" He acknowledged that Coyle concerned the admission of new States, and that Katzenbach had limited the principle of equality to that context. Nevertheless, "as we made clear in Northwest Austin , the fundamental principle of equal sovereignty remains highly pertinent in assessing subsequent disparate treatment of States." Justice Roberts doesn’t give up easily but, whether or not one attaches "sovereignty" to the claim, unequal treatment doesn’t invalidate VRA §§4 and 5.

The extent to which Shelby County depends on Northwest Austin (and the regard Roberts has for his own views) are exemplified by this passage in Shelby, rebuking those (Ginsberg, Breyer, Sotomayor and Kagan) who dissented: "[T]he dissent analyzes the question presented as if our decision in Northwest Austin never happened." By "decision," he means his dicta. "For example, the dissent refuses to consider the principle of equal sovereignty, despite Northwest Austin's emphasis on its significance." It ignored "the fact that Northwest Austin requires an Act's ‘disparate geographic coverage’ to be ‘sufficiently related’ to its targeted problems . . . ." The dissent also overlooked Austin’s emphasis on the progress made: "Although Northwest Austin stated definitively that ‘current burdens’ must be justified by ‘current needs,’ . . . the dissent argues that the coverage formula can be justified by history. . . ." Weren’t you listening? I stated definitively.

The Tenth Amendment Center advocates nullification of federal laws by state legislatures. The Chief Justice and his allies practice nullification on the Supreme Court.

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11. The precedential status of a plurality opinion does not seem to be clear. The arguments about the renewal of the VRA seem to have taken the plurality opinion in as the law.

12. The memo, Roberts to the Attorney General, "Voting Rights Act: Section 2," is available at https://www.archives.gov/news/john-roberts/accession-60-88-0498/030-black-binder1/folder030.pdf

13. Memo, February 23, 1982, John Roberts to Wm. Brad Reynolds, Assistant Attorney General, Civil Rights Division: "Material To Be Delivered Today To Senators on Voting Rights Act." It is included in
https://www.archives.gov/news/john-roberts/accession-60-88-0498/016-voting-rights/folder016.pdf#page=12

February 16, 2016

Supreme Court Justice Antonin Scalia died on the 13th. That came as a shock to me, perhaps because there had been no reports of ill health, perhaps because I had just written of his possible retirement, but partly because my last extended reference to him had been in the form of harsh criticism. As is obvious from my comments over time, I often disagreed with Justice Scalia, and sometimes disagreed rather pointedly, reacting both to the substance and to his tone, which could be unpleasant. However, there were those who discovered a warm human being who was absent from his opinions. I‘d like to offer some balance by referring to two of those assessments.

Recently I read The Oath, by Jeffrey Toobin, which is primarily about the conservative agenda of the Roberts Court. However, along the way he describes a touching scene. Martin Ginsberg, Justice Ginsberg’s husband, died on Sunday, June 27, 2010. The following day, in the courtroom, prior to dealing with the day’s business, Chief Justice Roberts announced Ginsberg’s demise, and gave a brief summary of his life. "As Roberts spoke, Scalia wept. The Ginsberg and Scalia families had celebrated every New Year's Eve together since the two judges were on the D.C. Circuit together. To the amazement of their friends, the families had never let politics come between them."

Yesterday an on line article from The New Yorker, by Margaret Talbot, described her reaction to Scalia when writing a profile of him. "[F]or all my deep disagreements with Justice Scalia’s positions, I have fond memories of following him around. . . . In his chambers, he poured tea for me and asked me where I’d grown up, showing a graciousness I hadn’t expected." He referred then to his friendship with Ruth Bader Ginsberg and meetings of their families. Ms. Talbot concluded with this: "I’ll lift a glass of wine (Scalia was fond of it) to those moments when human feeling transcends ideology, which do seem rather imperilled these days"

That’s an appropriate memorial. Sadly, Republicans in Congress are determined to make Justice Scalia’s passing an occasion for hyperventilated partisanship.

February 6, 2016

There are several aspects of the presidential campaign that are puzzling to me. Why do we tolerate having it go on endlessly? Why do we allow moneyed interests to have so much influence? (Citizens United made the problem worse, and harder to solve, but it was already there). How did Hillary Clinton become the inevitable nominee/president (and remain so after losing in 2008)? The one that intrigues me at the moment is why we allow Iowa so much influence.

In that state, people who attend precinct caucuses, variously estimated at 15 to 20% of eligible voters, elect delegates to county conventions, which elect delegates to district and state conventions. The last elects delegates to the national convention. The results for which the nation breathlessly awaits are from the precincts, so they are preliminary. At least on the Republican side, the total number of votes is reported, so there is in effect a poll. The Democrats report only the number of delegates selected at the caucuses, and the significance even of that number is elusive, as the result is reported in terms of "state delegate equivalents." What might those be? "State delegate equivalents are calculated using a ratio of state to county convention delegates. In other words, the ratio determines how many delegates the candidate would receive for the state convention based on the number of county convention delegates a candidate receives."[8]  Got that? Clinton received 700.59 of those things, and Sanders 696.82, O’Malley 7.61 and uncommitted .46,[9] results which legitimately could be described as trivial.

If we add the arcane and arbitrary nature of the process, in which only "viable" candidates receive delegates, and coin flips sometimes occur, there is no rational basis for caring about the result. In addition, inefficiency calls the results into question. The Des Moines Register noted many reports of "inconsistent counts, untrained and overwhelmed volunteers, confused voters, cramped precinct locations, a lack of voter registration forms and other problems." Members of the paper’s editorial board, who were observing caucuses, referred to "Monday night’s chaos." As the Register noted, caucuses and primaries were the result of a drive to make candidate selection more democratic. "But the caucuses have become as antiquated and opaque as the smoke-filled rooms of yore."[10]  We allow that mess to go some distance in selecting, and even further in eliminating, presidential candidates.

The parties control the process by which their candidates are nominated, and are committed to the caucus/primary system. Iowa goes first and New Hampshire has the first primary simply because they have captured those spots and the parties permit them to perpetuate their positions. Assuming that the parties will not return to selecting candidates at open conventions, the only sensible method would be a national primary.

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8. http://iowademocrats.org/about-iowa-caucuses/

9. http://iowademocrats.org/statement-from-idp-chair-on-tonights-historically-close-caucus-results/

10

.http://www.desmoinesregister.com/story/opinion/editorials/caucus/2016/02/03/editorial-something-smells-democratic-party/79777580/     

December 27, 2015

The internet is a marvel. Search engines allow us to pull up an incredible range of material in seconds and, even more mysteriously, someone has made that information available to our searches. Recently I was musing about elitism, and the phrase "a real superiority of mind" drifted into my memory. As my gray matter is not as organized or agile as it once was, I could not place the words, apart from remembering that some character was justifying himself through them. I decided to google the phrase and, after I typed it into the search box, the program inserted "where there is" in front of it. One click immediately provided numerous references to the source, Mr. Darcy replying to Elizabeth Bennett, who had suggested that pride might be a failing: "Where there is a real superiority of mind, pride will be always under good regulation." I should have remembered, but it’s good to know that the system will do it for me when I fail.

Our supposedly democratic society increasingly is dominated by an elite, not one of birth or of class in the usual sense, but of wealth. Actually, that isn’t quite accurate, because many who are wealthy have become that way because we have already decided that they are of the elite, and accordingly reward them generously. Film actors are examples, and athletes’ salaries are especially absurd, but there is some aspect of competition for unusual talent in those fields. The puzzle, to me, is our attitude toward and valuation of executives. Their salaries are ridiculously large, and collusion on boards of directors doesn’t explain the phenomenon, which is found in public as well as private employment. Often it has little relationship to results and can’t be explained by assuming that there is a small pool of qualified individuals. We simply have created a new nobility. 

There is much complaint, legitimately, about the increasing disparity of wealth, but so long as we continue to encourage huge paychecks, we won’t do anything about it. A broad cultural change isn’t likely, at least in the short term, so a way to ameliorate this, as well as a step toward balancing the budget, is a return to a fair, democratic income tax. Real progressivity is one requirement; another is elimination of various loopholes which favor the wealthy. However, any such change, unfortunately, also requires a species of cultural change: the election of progressives. But running on a platform of raising taxes often is fatal because people have been taught to believe that any increase in taxes, even directed toward someone else, somehow will injure them — don’t punish job-creators! — and, of course, government is evil. No matter where we try to attack the problem, changing attitudes is necessary. In terms of the election, Senator Sanders looks the most likely to accomplish that.