What “Withering Scrutiny”? Greenhouse on Judge Kavanaugh on Voting Rights

In the New York Times Opinionator blog, Linda Greenhouse tries to tease out tension between dicta by Chief Justice Roberts and dicta by Judge Kavanaugh that she suggests could influence the outcome of Shelby County v. Holder, the Voting Rights Act case in which the Supreme Court recently granted cert: 

Stripped of its doctrinal framing, . . . the argument at the heart of this case . . . is that Section 5, reauthorized by Congress in 2006 for another 25 years, is an anachronism, a continuing insult to states that have long since cleaned up their act and have put behind them the racist vote suppression that led to the enactment of the Voting Rights Act in the first place.

In the abstract, against the background of the election of an African-American president, that argument has indisputable force. “Things have changed in the South,” Chief Justice John G. Roberts Jr. wrote in 2009, when the court took an inconclusive swipe at the law in an earlier case. The court had serious doubts, he wrote then, about whether the “current burdens” imposed by Section 5’s “pre-clearance requirement” were “justified by current needs.”

Then came the 2012 election, with voter identification laws suddenly popping up in Republican-dominated states, along with cutbacks on voting hours and restrictions on registration. . . .

In the South Carolina case, the [three-judge panel of the D.C. District Court] said that while the state’s voter ID plan was acceptable on paper and could be used in future elections, it couldn’t be used in 2012 because the state hadn’t satisfied doubts about how the system would actually work and had failed to give voters enough time to get the required identification. “The long march for equality for African-Americans is not finished,” Judge Brett M. Kavanaugh wrote for the panel (quite a contrast to Chief Justice Roberts’ “things have changed in the South,” from a conservative judge who surely would have been on a Romney administration’s Supreme Court short list). . . .

Given the open cynicism of the Republican-driven efforts at vote suppression this year, and the withering scrutiny of federal judges across the ideological spectrum, the question coming out of the 2012 election season is whether the optics of the voting rights issue have changed sufficiently to bring the Roberts court back from the brink to which it was surely headed. When the subject of voting rights felt like yesterday’s news, a quaint page from a fading history, using the Shelby County case to eviscerate Section 5 looked easy. With voting rights the stuff of today’s headlines, I’m no longer so sure.

Greenhouse’s argument rests on more than Judge Kavanaugh’s “long march” dictum, but it’s worth noting that she takes that statement out of context. Yes, Judge Kavanaugh did acknowledge the continuing presence of racism by private individuals in American society.  (He cited Boston Bruins fans.) But racist tweets by sore losers are a far cry from state-sponsored vote-suppression. And Judge Kavanaugh expressly rejected the Justice Department’s argument that the State of South Carolina passed its voter ID law for a discriminatory purpose. To the contrary, he found “a lot of evidence, including in the text of the final law, that reflects legislators’ efforts to avoid discriminatory retrogressive effects on African-American voters.”

If anything, Judge Kavanaugh’s finding about South Carolina’s good faith supports the Chief Justice’s observation that “things have changed in the South.”  But since the South Carolina case did not involve a challenge to Congress’s reauthorization of the Section 5 pre-clearance requirement, Judge Kavanaugh’s opinion offers little support to either side in the Shelby County case now before the Supreme Court.

Shelby County, Ala. v. Holder, No. 11-5256 (May 18, 2012) (Tatel, J., joined by Griffith, J., with dissent by Williams, S.J.)

State of South Carolina v. United States, No. 12-203 (D.D.C. Oct. 10, 2012) (Kavanaugh, C.J., joined by Kollar-Kotelly & Bates, JJ.)

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