Prof. Rick Hasen has responded on his blog to my critique of his recent L.A. Times op-ed, which I argued was undercut by a 1982 memo written by John Roberts. (See page 16 of this link for the memo.) In his op-ed, Prof. Hasen argued that Roberts would look askance at a renewed Section 5 of the Voting Rights Act because it contains an “effects test,” which Roberts had decried in Section 2 of the Act. I argued that Roberts had argued for the retention of Section 5, effects test and all — and had explicitly distinguished Section 2’s effects test (which he opposed) from that in Section 5 (which he supported).
I posed two questions to Prof. Hasen: 1) did you see the memo before writing your op-ed? and 2) do you think the memo undercuts your argument?
The answer to question #1 is, essentially, yes. Other versions of the same memo were among the documents that Prof. Hasen relied on for his op-ed. As he says in his response:
On August 2 (the day before my oped appeared), I put up this post with all the documents I relied upon in writing my oped (linking to the documents again on August 3). The language Patterico cites to is all over the documents I posted (see, for example, pdf page 8, of these documents I posted on August 2). These were part of the Attorney General’s talking points for why the Reagan Administration opposed the new section 2.
The answer to question #2, as I understand it, is that Prof. Hasen believes the memo I cite does not undercut the premise of his op-ed. Read his whole post for the full explanation, but here is what appears to be a fair summary:
In short, then, the answer to Patterico is this: the 1982 Roberts memos show a person who is skeptical of broad federal power in the area of voting rights. The new federalism cases of the Rehnquist Court provide someone with such skepticism a jurisprudential ground to strike down the renewed preclearance provisions as an “intrusive interference” on the rights of covered jurisdictions. He could well write that what was appropriate for 1965 is no longer appropriate for 2005.
Prof. Hasen obviously has more space on his blog to explain his full reasoning than he had within the limited confines of an op-ed published in the L.A. Times. His federalism argument was certainly present in the op-ed, but it seemed to take second place to the citation of Roberts’s contemporaneous memos expressing disdain for the effects test of Section 2. Now that Prof. Hasen has expressed the fuller nuances of his position within the freedom of his blog, I see his point more clearly than I did reading his op-ed.
I still think that some acknowledgement of Roberts’s support for the “effects test” of Section 5 would have been nice to see in the op-ed. But I understand how harsh newspaper editing can be, and op-ed pieces are a different animal from blog posts because of the imposed brevity. I think Hasen’s post responding to my criticism amplifies his argument in a valuable way, and I thank him for the response.