The question is what standard should be used [] when Congress is renewing what lawyers would call a prophylactic statute, a broad set of protections designed to deter discrimination. If Boerne were applied wholesale, Congress would be in a catch-22. If the statute was working, there wouldn't be much evidence of discrimination, and Congress wouldn't be allowed to renew the statute. If the statute wasn't working, Congress would have the evidence of discrimination it needed, but there wouldn’t be much point to renewing a failed regulatory regime.
Tuesday, May 5, 2009
NAMUDNO v. Holder
Heather Gerkin, on why the "congruence and proportionality" test might be problematic if applied to the renewal of section 5 of the Voting Rights Act:
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3 comments:
wtf i can't edit things? said:
the "black president" point that she hammers on in that article looks like an obvious red herring, and more of the same "end of racism" line that was hesitantly floated last fall. i'm somewhat surprised to see it addressed as seriously as it is there.
she makes a good point, but i don't know that the test is necessarily completely useless. maybe examples of proposed changes that had been shot down under the act could be used to show attempt at discriminatory practice? obviously arguable, but existence of this kind of thing would give Boerne some relevance.
Boerne also seems to give some wiggle room, looking for broader, systemic histories of discrimination. think this opens the door to a lot of evidence of things beyond the immediate voting rights? i find it hard to believe that sec 5 eliminated discrimination in the south once and for all--relevant?
appendix:
it's pretty annoying to notice that you aren't thinking normatively but instead are looking for ways to apply something you're given.
I agree that the "black president" meme seems weak. And she raises the point in a subsequent post that this dynamic is not inherently a bad thing. At some point, presumably, we'd like to be able to say that the extra protections did their job and that it is time to move on.
The question of course is whether or not we're there yet. I don't know. I don't know much about the political science of voting patterns in the modern south. My gut feeling is that we aren't, especially given the minority voting issues in the 2000 Florida recount.
I wonder if Hastings has an election law class.
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