Judge Roberts and the Voting Rights Act

On the Election Law blog, Professor Richard Hasen quotes from his own op-ed in the Los Angeles Times, to the effect that John Roberts won't support voting rights.

What Hasen really means is that Roberts won't support the bastardized version of voting rights based on Supreme Court interpretations of Amendments to the the Voting Rights Act that Congress adopted in 1982. Under that version, you don't have to prove that anybody has done anything with the intention to interfere with anyone else's voting rights - it is enough if the practice in question has a "discriminatory effect." I'm not sure that that is a good reading of the law, but I suppose it would be tolerable if it were interpreted in a sensible way. But how it is interpreted, and how Hasen wants to continue to interpret it, is that the number of minorities (usually African-Americans, although it also applies to some other minorities, such as Hispanics, but not, for example, to Hasidic Jews) must be elected roughly in accordance with their percentage of the population. So, for example, if a state has a 20 member state senate, and a 10% black population, it must elect at least 2 black state senators from "safe" "minority-majority" districts - that is, districts in which blacks make up most of the voters.

The effect of this has been that when drawing district lines, blacks are "packed" into districts with other blacks; other districts therefore have very few blacks. Thus, in the above example, two blacks may be elected to the state senate, but black voters have virtually no sway over the other 18 senators, whose districts have been stripped of black voters to pack them into the other two districts. Because blacks vote overwhelmingly Democratic, Republicans have cynically used this to increase their representation - black Democrats win a couple seats by big margins, but there are fewer Democrats elsewhere, and so more Republicans are elected. Meanwhile, the elected blacks - from very safe Democratic seats - tend to be extreme liberals who hardly, I think, represent most blacks. Think John Conyers, Maxine Waters, and Charlie Rangel in Congress. And Republicans can also safely ignore black concerns, as there are few black voters in their districts. Justice Clarence Thomas calls this "racial apartheid," and if the language is inflammatory and harsh, it is certainly not far from the truth.

Here is what Hasen has to say about Roberts, based on memoranda Roberts wrote for the White House in 1982:

In these documents, Roberts wrote that the new Section 2 would "establish a quota system" and "provide a basis for the most intrusive interference imaginable by federal courts into state and local processes." He added that it "would be difficult to conceive of a more drastic alteration of local government affairs."

Imposing the new Section 2 nationwide, he concluded, would be "not only constitutionally suspect, but also contrary to the most fundamental [tenets] of the legislative process on which the laws of this country are based."

One could perhaps argue that Roberts' writings did not reflect his personal views and were simply the arguments of a zealous advocate for a client. But the papers I have seen suggest otherwise.

During the Senate debates, for instance, Roberts wrote that the attorney general had to "get something out somewhere soon" [original emphasis] explaining the administration's position because the "frequent writings in this area by our adversaries have gone unanswered for too long." He called on the administration to take an "aggressive stance" against the changes to Section 2. When it was over and Section 2 had been amended, Roberts wrote that "we were burned."

...None of these statements absolutely proves that Roberts is hostile to expansive voting rights legislation, but as he wrote in his talking points for the attorney general, circumstantial evidence (rather than a "smoking gun") should be enough to prove intent.

And what, I ask, is not true in what Roberts wrote? And second, how does it show any hostility to voting rights?

Section 2, interpreted as Hasen prefers, has established a quota system, and this was recognized by Justices Burger, O'Connor, Powell, and Rehnquist in their concurring opinion (on different grounds) in Thornberg v. Gingles, 478 U.S. 30 (1986). It has led to a marked federal and judicial interference in state affairs (think of all the redistricting lawsuits brought nowadays - most are based on the Voting Rights Act); it has drastically altered local government affairs (among other things, it has been used by courts to force city and county governments to elect commissioners from specific districts rather than city or countywide - precisely to insure that the minority voters can be "packed" into one or two districts to guarantee that the quota of minority legislators is met. The effect of this is often to polarize local politics).

Finally, the 1982 Amendments to the Voting Rights Act are contrary to the legislative process on which the country was founded, and for that reason they are constitutionally suspect: Justices Scalia and Thomas would hold them unconstitutional, (Holder v. Hall, 512 U.S. 874 (1994)).


And finally, the Attorney General should have gotten something out soon - there were unanswered attacks by their adversaries that were allowed to shape the debate and convince too many people that opposition to these provisions meant one was opposed to civil rights.

Let's hope, then, that these memos not only are Roberts' effort to zealously advocate, but also that they do represent his personal views.

And let us not allow people such as Professor Hasen to smear these views as somehow being anti-minority or against "voting rights."

Finally, Hasen quotes from a later Roberts memo in which he urged the Department of Justice to intervene in a case:

"it is critical that the Department participate in the developing process of giving meaning to the vague terms of the new section 2, and help courts avoid the outcomes we argued against and which the proponents of an amended section 2 assured us were never intended."

Just so. And it has been unfortunate for the country - particularly the political center - that Roberts advice wasn't heeded.