Tuesday, June 25, 2013

SCOTUS on Voting Rights: Dueling Metaphors

Posted By on Tue, Jun 25, 2013 at 3:59 PM

roberts-ginsburg.jpg
The U.S. Supreme Court rendered today its highly awaited ruling on the Voting Rights Act, finding 5-4 that the Act's preclearance mechanism is in theory acceptable but in practice unconstitutional. In an opinion (PDF) penned by Chief Justice Roberts, the five conservatives on the Court reasoned that the preclearance provision is "irrational" because it relies on a "formula based on 40-year-old facts having no logical relation to the present day." In dissent, the Court's liberal justices respond that there is plenty of connection between the Act's history and the present: "second-generation barriers to minority voting rights have emerged" in the jurisdictions covered by the Act, replacing those original barriers (like poll taxes and literacy tests) that justified preclearance in the first place. This, Justice Ginsburg's dissent argues, amounts to "powerful evidence" that preclearance "remains vital to protect minority voting rights."

This is all important stuff, sure, but my favorite aspects of the decision and the dissent are the dueling metaphors contained within. Who has the better one? You make the call.

First a bit of background: When Congress last reauthorized the Voting Rights Act in 2006, it kept in place without modification the existing formula for determining which states and jurisdictions remain subject to the requirement that changes in voting procedures must be precleared by the Justice Department or a federal court. It is Congress' failure to update the coverage formula that leaves the Court "no choice but to declare section 4(b) unconstitutional," Roberts wrote. With a better, presumably less irrational formula, preclearance is still acceptable. The Court could have invalidated the entire concept of preclearance, as the Alabama county that brought the lawsuit asked, but only Clarence Thomas was willing to go that far.

So preclearance survives conceptually, but is essentially moot unless and until Congress can legislate a more up-to-date formula for deciding which states and counties are affected. That might seem doable given that when Congress reauthorized the Act in 2006 it did so with huge majorities in both parties. But in today's increasingly polarized legislative environment, getting a new voting rights preclearance formula through Congress seems (metaphor alert) like an uphill battle to say the least.

Now on to the Supreme metaphors! Let the battle commence.

First up is the majority opinion, tackling a claim by the dissent that Alabama's Shelby County, which brought the suit, lacks standing to challenge the Act because Shelby itself is a place where voting discrimination has been documented. Roberts swings the metaphorical bat:

That is like saying that a driver pulled over pursuant to a policy of stopping all redheads cannot complain about that policy, if it turns out his license has expired.

Now to the dissent, attacking the majority for underplaying what it calls "volumes of evidence" supporting Congress' determination in 2006 that backsliding was a realistic prospect. You're up, Ruth Bader Ginsburg:

Throwing out preclearance when it has worked and is continuing to work to stop discriminatory changes is like throwing away your umbrella in a rainstorm because you are not getting wet.

I like Roberts' simile because it succinctly and colorfully captures the argument he is trying to make, although it is technically flawed by irrelevancy. There is no conceptual link between hair color and license validity, whereas in the voting rights case, we are talking about related things: Shelby County's empirical record of voting discrimination (the expired license) and the county's objection to voting discrimination rules in force (the stop-all-redhead policy). Even so, a nice one; I give Roberts a B+.

Ginsburg's umbrella simile is clumsier because it doesn't capture the essence of her argument as neatly, and actually distorts its target — the other side's claim. For its many flaws (and there are many), the majority opinion does not deny that preclearance has worked and can continue to work. The Court's ruling doesn't throw away the umbrella, though it does declare use of the umbrella off limits until its design is improved. Also a good one, but Ginsburg only rates a B.

On the merits I find the dissent more compelling, although only slightly so. The majority opinion's logic is stronger in many respects, but its legal foundation is suspect. But logic and legalities — those are just sideshows. The metaphors are the main event — and on that stage … a narrow win for Roberts and the conservatives!

A version of this post also appears at BruceBarry.net.

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