Prof. Levitt opined on Supreme Court decision of the Voting Rights Act

Professor Justin Levitt opines on several national publications on the Voting Rights Act decision, including SCOTUSblog and Election Law Blog.

"The Court today struck down a statute that did not exist.  And it did so at the request of jurisdictions seeking a little extra “dignity” — who might end up with less dignity as a result.

Formally, the Court struck the 2006 reauthorization of 42 U.S.C. 1973b — Section 4 of the Voting Rights Act, and a central part of the Act’s preclearance regime.  Its more famous counterpart, Section 5, requires certain jurisdictions to submit election changes for federal review, to ensure that they do not harm minority voting power.  Section 5 sets the “what.”  Section 4 sets the “where,” delineating which jurisdictions receive Section 5′s special medicine.

But the Section 4 that the Court struck is a curious creature — as I’d feared, a simulacrum.  The Court branded it the rote reenactment of a “formula based on 40-year-old facts having no logical relation to the present day.”

This stale formula is not the coverage formula actually in the law.  The formula started with 1960s and 1970s registration and turnout figures, locating the broken democracies connected to the worst discrimination.  But it did not end there.  It allowed any jurisdiction that had demonstrated consistent improvement in minority opportunities, without backsliding, to “bail out” of coverage."

DOMA v. Shelby County v. Fisher

"Both Ari Berman and Dashiell Bennett find reason to question Justice Scalia’s extensive critique of the judiciary’s “jaw-dropping” disregard of its “respected co-ordinate branches” in today’s invalidation of a Congressional statute.

To be clear, there was a serious issue of standing in today’s DOMA decision that wasn’t precisely present in Shelby County (Shelby County faced concrete injury, even if there was reason to question its propriety in bringing a facial challenge), but there were serious standing issues in Fisher that received nary a mention.  And all three cases involved judicial review of a considered legislative decision."

"The National Association for the Advancement of Colored People (NAACP) already has a petition on its website calling on Congress to act.

Justin Levitt, associate professor of law at Loyola Law School, Los Angeles, told IPS that such a move may be more complicated and politically challenging than it sounds.

“The court… certainly left the door open. If Congress chooses to return to ‘where’ question [where preclearance should be required], it would have to articulate a set of jurisdictions and the reason for including those and not others responsive to facts on the ground,” Levitt said. “That’s really hard to do.”

“It’s like asking Congress to try to figure out and come up with…current measures for places that are most sick even though they’re taking medicine. Now we’re taking the medicine away and now Congress needs to show it needs the medicine,” he said.

Possible new criteria that have been discussed so far include a history of other voting rights litigation under other provisions of the VRA, the degree to which an electorate is racially polarised or levels of prejudice, he said.

As for the court’s disregard for Congress’s renewal of the act in 2006, “there is not a tremendous amount of consistency in the amount of deference other branches of government get,” Levitt said."