Patterico's Pontifications

8/13/2005

Roberts Memo Contradicts Premise of Hasen Op-Ed

Filed under: Dog Trainer,Judiciary — Patterico @ 10:41 pm



A new batch of Reagan-era memos by John Roberts was released on Thursday. (Via Supreme Court Nomination Blog.) Reading through these memos, I found one that contradicts the major premise of a recent op-ed in the L.A. Times by Election Law Expert Rick Hasen.

Here’s the background that you need to understand Hasen’s argument. In a case arising out of Mobile, Alabama, the Supreme Court had held that Section 2 of the Voting Rights Act (VRA) could be used to invalidate local election practices only if the government had a discriminatory intent. Civil rights groups were pursuing a change that would allow Section 2 to be used to challenge practices that had a discriminatory effect. Roberts opposed the change, because he believed that courts applying an “effects” test would establish a quota system. If a court found that a particular election system did not result in the election of sufficient numbers of minorities, it might invalidate that election system — even if the system was simply the standard at-large voting system employed all across the country, and even if the developers of the system had no intent to discriminate against minorities. Roberts argued that elections throughout the nation would be challenged in court, throwing our electoral system into chaos.

Prof. Hasen’s op-ed examined Roberts’s arguments against the inclusion of an effects test in Section 2 of the VRA, and extrapolated from those arguments that Roberts might today vote against Section 5 of the VRA– because that section incorporates an “effects test” of its own:

[T]he civil rights community pushed to have Section 2 of the Voting Rights Act of 1965 amended to allow . . . a “vote dilution” claim to go forward without proof of discriminatory intent. It would be enough to show that election laws such as Mobile’s had a discriminatory effect.

. . . .

Because Roberts viewed the “effects” language in Section 2 as an “intrusive interference” that is a “drastic alteration” of American government and “constitutionally suspect,” why would he look charitably on a renewed Section 5?

I would not count on him to uphold it.

But in a memorandum I have reviewed, Roberts made it clear that he viewed Section 5 as quite different from Section 2, and opined that an “effects test” made sense for Section 5 but not Section 2. The memo starts at page 16 at this link. Roberts said:

It is critical to an understanding of the Act to distinguish between §2 and §5 in talking about the intent/effects issue. Section 2 is a permanent provision, and no action is necessary to retain its protections. Section 5 applies only to selected jurisdictions and only to election law changes, while §2 applies nationwide and to existing systems and practices regardless of when they were established. Section 5 already contains an effects test, and we support its retention.

. . . .

There is no inconsistency whatever in having an intent test for §2 and an effects test for §5, as is the case with the existing Voting Rights Act. The different sections are addressed to different problems. It makes sense to have an effects test for election law changes in certain areas which suffer from a history of election law discrimination. Section 2 is not so limited. It applies not only to changes but to existing systems, and not only to certain areas but nationwide. The law has worked smoothly with an intent test for §2 and an effects test for §5. The Supreme Court in the Mobile v. Bolden decision saw no inconsistency in this, and our experience has revealed none.

(Bold emphasis mine.)

Roberts repeatedly and forcefully argued in the memo that the incorporation of an effects test in Section 2 would be an unwarranted intrusion on elections across the country, while simultaneously arguing for the retention of Section 5 — effects test and all.

I don’t know whether Prof. Hasen saw this memo before writing his op-ed. His op-ed refers to “newly released papers” including “questions and answers for senators and documents aimed at defeating the new Section 2.” The memo I describe in this post is a set of questions and answers regarding Section 2. Also, the complete set of documents shows that the documents were released in two waves: one on August 1 and a second wave on August 11. Although I found a copy among the documents released on August 11, it was apparently among the documents released on August 1, since it is quoted (accurately, as it turns out, despite my previously expressed suspicions to the contrary) in an August 7 article by David Savage.

If Hasen deliberately omitted a reference to language that directly contradicts his core premise, that would place his op-ed within the finest traditions of the Los Angeles Times. But I don’t want to jump to that conclusion. I have written Prof. Hasen to ask whether he had reviewed this memo before publishing his op-ed, and whether he agrees with me that the memo I describe contradicts the core premise of his op-ed. I’ll let you know what he says.

6 Responses to “Roberts Memo Contradicts Premise of Hasen Op-Ed”

  1. You prove, once again, that legacy media possesses limited resources and can not hope to ever achieve the depth of talent available in the blogosphere.
    Keep on Pontificating.

    marvls (8363a6)

  2. People need to wake up to the fact that Rick Hasen is a sorry excuse for an expert.

    His predictions, even on his home turf of election law, are almost invariably wrong, and sometimes spectacularly so. Note that this isn’t me taking issue with his opinions, which he’s entitled to hold, but with his expertise, which he holds out as objectively the law.

    Further, he seems surprised by the most obvious of things- take the CA Supreme Court’s Proposition 77 ruling, for example. That the Supreme Court was going to do this wasn’t too hard to forsee, and yet it caught him off guard.

    Remember kids, until 2000, election law was an awful backwater of legal scholarship. Talent hasn’t filtered into it yet.

    Angry Clam (a7c6b1)

  3. Those of us in the legal profession are used to this type of “nuanced” analysis. I guess John Roberts is too “nuanced” for the [Democrat] party of nuance.

    Curtis L. Coleman (1554ca)

  4. Oh, but his arguments against the recall were so principled and cogent, not to mention consistent.

    Xrlq (ca1ad5)

  5. Sorry, but section 5 and section 2 address the SAME problem, unequal voter representation. The history of one area (the old south) has already become the present of many areas of the nation, as Ohio proved so convincingly in 2004.

    Isn’t that what Bush v. Gore was supposed to be about, absolutely equal voting rights? Why then defend one who claims that only SOME acts against equal representation need have remedy without prior proof of intent?

    The lack of an effect test was designed and remains a catchall for various partisan and racist efforts to create such things as 11 hour waits in black districts but 15 minute waits in white districts in a ‘must win’ state for a certain unprincipled party in the most recent election.

    Roberts notation does indeed declare that he is opposed to any ‘test of reality’ when it applies to voting rights for blacks.

    BTW, did Roberts join in the mass dissent to Bush v. Gore?

    If not, how hypocritical can one alleged judge be?

    gerbilinheat (c24fe2)

  6. Talk about being late to the party.

    Angry Clam (fa7fff)


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