Wednesday, June 26, 2013

An Obvious Solution

I'm missing something about the SCOTUS decision yesterday, on VRA.

The court (rightly) struck down the portion of the VRA that maintained restrictions that fall differently on different states.  And those differences demonstrably have no basis in actual misbehavior, or in fact any empirical data at all.

Yes, I understand the 15th Amendment says that Congress "shall have the power to enforce..."  But it's with "APPROPRIATE legislation."  The VRA as redone is not appropriate, and in fact it's clearly unconstitutional, for the reasons the court gave yesterday.  Two biggies:

1.  The 10th Amendment reminds us that certain rights belong to the states.
2.  The Constitution says, in Article I, Section 4, that the "time, place, and manner" of elections will be left up to the state legislatures.  Yes, it goes on to say that Congress can pass laws, like the one that coordinated Presidential elections, but that goes for all the states.  The Congress can't pick and choose, to say "We like this state, we don't like this state," without violating the 10th Amendment.  There has to be a reason.  A good reason.  A reason good enough to pass what judges call strict scrutiny.

So far, so good.  The court did the right thing.  But then they did something bizarre.  If you are going to say that Congress has to redo the section on deciding which states have to get pre-clearance to impose new restrictions or new rules, why in the name of sweet fancy Moses would you say "no states"?  They could have said, "Given the stakes, the current rules stay in place for a year, so Congress can change it."

But the obvious answer is this:  Congress can absolutely pass a law that says ALL states must pre-clear.  They passed a law that made unacceptable and unfounded differences in burden, so we'll strike that part down.  Then the SCOTUS should have said, "Until or unless Congress passes a new version of this section, all states have to pre-clear."  There is nothing unconstitutional about THAT.  The problem is the different burdens on different states.

The advantage of this is that, as a practical matter, the status quo is going to be privileged.  Saying that "No states have to pre-clear, but Congress can fix that", sounds fine, in theory.  But Congress can't find its own...well, knee with both hands right now.  The SCOTUS has set up a bitter and dangerous fight.  Go the other way:  make the status quo ALL states have to pre-clear.  Then, if Congress does nothing there is still a protection against state abuse by majorities.  And Congress is much more likely to do something, because there might be bi-partisan support in a majority of states to pass a new and more sensible law.

UPDATE:  Commenter notes "SCOTUS can't do that."  I should have been more careful.  SCOTUS cannot impose a new law.  But it is absolutely common either to stay the impact of a decision, or to impose by judicial order a reversion point when the elimination of the law itself would impose a harm worse than the harm being corrected.  So I am only proposing that the SCOTUS do this by judicial order, with a fuse.

If you read the VRA, and look at Section 4,  you'll see that the law says "(b) The provisions of subsection (a) shall apply in any State or in any political subdivision of a state which..."  It's the part after the "which" that was struck down.  So, the question is how to interpret that?  If you get rid of the part that describes the conditions, do you go to ALL states, or NO states?  You have to choose.  It's not obvious that NO states is required of the court.  They can say that by striking down the conditions on application of pre-clearance, that ALL states have to preclear, until Congress fixes the law.  That sort of thing happens all the time in election law.

So, commenter, your point is well taken, given what I wrote originally.  But I didn't mean "change the law."  I meant "change the temporary reversion point, by judicial order.


Anonymous said...

Sounds great, but the court doesn't have that power. They can't just make up law that specific out of whole cloth. Relying on Congress is unfortunately the only option available.

Zachary said...

I disagree with your latter point. The supreme court should (can?) not extend or create law where it does not exist. They were right to strike the appropriate section and free the states to do as they please until congress says otherwise. Despite the historical record, I think that this is a good precedent for future cases of that have the potential for Judicial activism. I'd rather that the court think that it can't extend/create law than to think that it can.

Anonymous said...

Because the VRA still has section 2 in force. It is not clear that section 2 does not do all the work that is needed (at this point in history) to ensure that the rights identified in the 14th are protected.

This Supreme Court is incredibly conservative in the "do as little meddling as possible" sense of the word, and this is the more conservative approach.

Could they have done what you suggest? I think so. Did they have to in order to reasonably defend the rights? I don't think so. We'll see. said...

Aside from the VRA decision, the larger question is what have become of the one branch with the closest connection to the American people and independent states... the Congress.
Based on what we have seen over the past several decades both the Executive and Judicial branches have gained more power, with Executive Orders and Judicial activism.
And Congress has obliged these power grabs, while independent state do not have the resources to fight the whittling of their sovereignty.

Worse, the public either remains indifferent...or prefers what has occurred.

It would be nice if the voices of academia would challenge what is going on, but perhaps the pro-Big govt. direction is the road they prefer as well. Anthony

John Thacker said...

Since the pre-clearance states seemed utterly unconnected and uncorrelated with reality for the last few years, why not an interim solution of reversing the set of states and locales subject to pre-clearance for a year (or until Congress changes it?) It would be just as fair as the previous system, and yet subject to a much lower chance of getting fixed in place due to status quo bias than keeping the list the same or making it no or all states.

Note that the Court a few years ago did making a ruling to the effect that "this is okay for now, but Congress really needs to come up with rules that reflect today's reality." Congress ignored that.