Forthcoming article: "The Democracy Ratchet"

Over at SSRN, I've posted a draft of The Democracy Ratchet, forthcoming in the Indiana Law Journal. Comments welcome! The abstract:

Litigants seeking to lift burdens on the right to vote and judges adjudicating these claims have an unremarkable problem—what is the benchmark for measuring the nature of these burdens? Legal theories abound for claims under the constellation of rights known as the "right to vote." And when a legislature changes a voting practice or procedure, courts may have an easy benchmark—they can consider what the right to vote looked like before and after the enactment of the new law, and they can evaluate a litigant’s claim on that basis. Recently, federal courts have been relying on this benchmark for the principal causes of action litigants might raise after a new law has been enacted—a Section 2 challenge under the Voting Rights Act, a freedom of association claim subject to the Burdick balancing test, and an Equal Protection analysis derived from Bush v. Gore. And frequently, courts have found that new laws that eliminate once-available voting practices or procedures fail.

I describe this new practice as the Democracy Ratchet. But it is only recently that a convergence of factors have driven courts to (often unwittingly) adopt the Democracy Ratchet more broadly. So while a legislature can expand such opportunities, courts scrutinize cutbacks on such opportunities with deep skepticism—deeper than had no such opportunity ever existed. The ratchet tightens options, squeezing the discretion that legislatures once had.

This Article seeks to solve the puzzle of how courts have scrutinized, and should scrutinize, legislative changes to election laws. Part I identifies recent instances in which federal courts have invoked a version of the Democracy Ratchet. It identifies the salient traits of the Democracy Ratchet in these cases. Part II describes why the Democracy Ratchet has gained attention, primarily as a tactic of litigants and as a convenient benchmark in preliminary injunction cases. Part III examines of the history of the major federal causes of action concerning election administration—Section 2 of the Voting Rights Act, the Burdick balancing test, and the Equal Protection Clause. In each, it traces the path of the doctrine to a point where a version of the Democracy Ratchet might be incorporated into the test. It concludes that these causes of action do not include a substantive Democracy Ratchet. Part IV turns to determine how the Democracy Ratchet might be used. It concludes that the Democracy Ratchet is best identified as an evidentiary device and a readily-available remedy for courts fashioning relief. It then offers suggestions for its appropriate use. Part V identifies some concerns with existing use of the Democracy Ratchet and instances in which it may be incorrectly used. It offers guidance for courts handling changes to election laws. Part VI concludes.

Could Evenwel v. Abbott end prison gerrymandering? And other potential implications

The Supreme Court agreed to hear Evenwel v. Abbott, a challenge to Texas's state legislative redistricting plan, which draws districts on the basis of total population and not on a voter-based metrics (such as citizen voting-age population). There are important, fundamental constitutional problems with this case, which I've raised briefly elsewhere. But I want to focus on the impact of the case if petitioners succeed--because, of course, sadly, few want to spend time on what the Constitution says, or how theories of representative government change, and most just want to figure out what's in it for which groups.

Ostensibly, the case, narrowly viewed, would shift power away from voters residing in districts with a large number of non-citizens and toward districts with a large number of citizens. That's, at least, the superficial reason for the challenge in Texas. Given that ostensible fact that disproportionately more Latino voters reside in districts with non-citizens, that would theoretically mean a dilution of their political power if other voters were added to their districts. And given that Latino voters tend to favor Democratic candidates, this would tend to advantage Republicans.

This is probably, at best, partially right, and, at worst, mostly wrong.

Recall that Latino voters often qualify for majority-minority districts under Section 2 of the Voting Rights Act. The baseline there is voters, not simply population. To the extent that Latino voters have secured districts under Section 2, they will not suddenly be disempowered if districts must be drawn to include solely voters; instead, it is likely that, at least in regard to Section 2 districts, the effects would be less pronounced than immediately reported, and perhaps even marginal. (This, of course, assumes that Latino voters are residing in Section 2-drawn districts, and that the Supreme Court continues to interpret Section 2 as it has.) It might be the case that Latino voters would lose a marginal district or so if they were unable to muster sufficient voters in newly-redrawn districts. But they could also add previously-marginalized Latino voters in non-majority-minority districts to shore up a district that might otherwise have been lost under a new rule. And that means the partisan impact might be less than otherwise projected, too. (I'm sure very careful political scientists will have more to say about the more nuanced impact of such policies in the months ahead.)

But there are other alterations that such a lawsuit might bring, all depending on the fashioning of the remedy. To name a few.

  • Districts with a felon prison population would lose political power. While a few states count prisoners as inhabitants of their last place of residence before prison, most include them as members of the population where they currently reside. That, obviously, can create districts, especially in the state's lower chamber of the legislature, with a significant number of ineligible voters. And these prisons tend to be in fairly rural areas (PDF)--or, areas that tend to have more Republican voters. A couple of million felons reside in these extremely concentrated areas--prisons, after all, are probably amount the most concentrated non-voting demographic you can find--and the practice of "prison gerrymandering" might be found unconstitutional.
  • Districts with a disenfranchised ex-felon population would lose political power. To the extent a decision gets so granular as to exclude even ex-felons in redistricting in states that disenfranchise them, we'd have to look at where the couple of million ex-felons reside. And if most ex-felons are in largely concentrated in urban areas, then we'd expect a loss of political power for those urban dwellers as voters are added to their districts--which might benefit Republicans more than Democrats.
  • Districts with a large number of children would lose political power. Children under the age of 18 are ineligible to vote in every state, with a couple of very marginal exceptions. But they are currently included in redistricting schemes. Localities that have more children would lose out; localities with aging populations would likely gain power. Whether this benefits any particular group is debatable. But to the extent there's a "fertility gap," in that Republicans tend to have more children than Democrats, it likely would also diminish Republican power. (Further complicating this analysis, of course, is that minorities tend to have children at higher rates than whites.) Taking California congressional districts as an example (assuming the case would be extended to congressional districts, but it's a useful data point because of the ease of obtaining Census data), the results are stark. There are just 91,000 under-18 residence in CD-12 (held by Nancy Pelosi, Democrat), but almost 227,000 children in CD-21 (David Valadao, Republican). Thousands of voters would be shifted out of districts like Pelosi's and into districts like Valadao's. (Further, it might also be the case that the shift from child-filled districts to elderly or childless districts would result in more substantive changes in political outcomes, including shifting of spending away from education toward end-of-life care or sustaining pensions.)
  • Robust expansion of the Census Bureau's duties. If such granular data is required before states can draw districts, the Census is going to have a much bigger job. As it is, there have been instances where conservatives have opposed the existing breadth of the Census survey.

These are, of course, projections and guesses and possible results. But they are much deeper than the original "Latino loss, Republican gain" picture originally suggested. (I've written about the "invisible federalism" that underlies the political structure of the Electoral College, for example, as a result of our system of apportionment of representatives, includes some meaningful choice in jurisdictions about voters and non-voters.)

These potential ramifications come with an extremely important caveat (which, of course, I save until the end). It's not entirely clear what a system of redistricting based on "voters" would necessarily look like. The appellants in Evenwel seem to offer at least three possibilities before the three-judge panel: citizen voting-age population, total voter registration, and "non-suspense" voter registration. If the Court did decide that voters was the proper metric, but allowed flexibility within that regime, then redistricting would change based on citizenship status and age, but not felon prison population; however, a more narrow holding, or a state choice to use something narrow, would impact prison gerrymandering.

But even under the most generous Supreme Court interpretation in favor of appellants, I find it hard to believe that states would be allowed to continue to include vast numbers of imprisoned ineligible voters contained in a very tiny geographic area. And (regardless of the merits of this or any other impact on redistricting) that, I think, would be a fairly significant impact of Evenwel--and certainly not the one that either appellants or most commentators have really identified.

DOJ, pundits fear North Carolina elections have returned to the barbaric year 2000

I read the Department of Justice's lawsuit regarding North Carolina's new election law, HB 589, with interest. I then read the judicial opinion denying a preliminary injunction. And I watched the case unfold over the past year, leading up to the 2014 midterm election.

I want to bracket the discussion about its voter identification law, over which, I think, there is a very vigorous and good-faith debate among many as to its necessity, its impact on voters, and so on.

I want to focus on the fact that the DOJ--and, more generally, pundits and critics of North Carolina's law--didn't challenging just the voter identification part of the law. It also challenged three other provisions: a change in early voting days from 17 to 10, the elimination of same-day voter registration during early voting, and a rule that provisional ballots cast in the wrong precinct will not be counted.

These three changes hearken back to a barbaric year in America's election history: 2000. 

In 2000, early voting simply did not exist. It was created by the North Carolina legislature in 2001.

And same-day voter registration during the early voting period could not exist, because early voting did not exist--but the same-day registration procedures were instituted in 2007.

Additionally, 2000 was before the Help America Vote Act of 2002, which required states to institute procedures for provisional balloting. When North Carolina did institute provisional balloting, there was a controversy in 2004 as to whether out-of-precinct votes should be counted. In James v. Bartlett (PDF) in 2005, the North Carolina Supreme Court unanimously construed the provisional ballot statute to preclude the counting of out-of-precinct provisional ballots, as the State Board of Elections, it concluded, made a "unilateral decision" to count such votes for the first time in this election. The North Carolina legislature then amended the statute in 2005 to allow for the counting of out-of-precinct ballots.

For perspective, then, early voting did not exist before 2001; same-day voter registration during early voting did not exist before 2007; and out-of-precinct provisional ballot counting did not exist before 2005.

It may well be that a court one day agrees with the Department of Justice's complaint: that this law was enacted for a discriminatory purpose; that despite the small sample size of data, it appears that the law will have a discriminatory impact on minority voters; that minority voters taking advantage of recent novations in election law means that such novations are essentially unalterable by future legislatures; and so on.

But there is a risk, I think, in the DOJ overplaying its hand. (And a touch of sarcasm in this post title doesn't hurt to make that point!) All litigation, of course, is fraught with risks, and post-Shelby County Voting Rights Act litigation is no exception.

Indeed, the worst fearmongering appears never to have materialized. In North Carolina this cycle, voter turnout increased; African-American voter turnout apparently increased; early voting increased.

There is much more nuanced statistical analysis to be done, of course. And these statistics can never capture whether, on an individualized level, potential voters were unable to vote as a direct result of these changes. But, it does, I think, suggest that one could be too quick to engage in rhetoric, and too slow to examine the actual, material impact of voting laws.

Now there are 24 co-sponsors for the Voting Rights Amendment Act

The Voting Rights Amendment Act, a proposed bill to restore an updated preclearance regime for new voting laws in certain (mostly Southern) states and smaller jurisdictions after Shelby County v. Holder, hasn't seen much since it was introduced in January. But last week, it added two new co-sponsors: Frank LoBiondo (R-NJ) and Bill Pascrell (D-NJ). Rick Hasen and other have noted that it would take someone like Eric Cantor to help move the VRAA forward. But, I thought it might be slightly notable that it picked up two additional co-sponsors this week--perhaps a small sign of some legislative movement.

How North Carolina voter ID opponents are undermining a Voting Rights Act defense

North Carolina is considering a proposed voter identification law. It requires voters to submit one of a limited number of forms of identification before voting.

These laws have been enacted with increasing frequency around the United States over the last decade. But some of the laws are more onerous than others: some require a more limited subset of identification that requires more effort for individuals to obtain.

The evidence has been mixed.  There's relatively little documented in-person voter fraud, the kind that would be prevented by voter identification laws; but there's little evidence of a decline in voter turnout after a voter identification law takes effect. (This greatly oversimplifies the debate, as supporters and opponents have other, quite valid, reasons--but this post isn't one about the merits or drawbacks of voter identification laws.)

Some writers are upset about the bill. Ari Berman blogging at The Nation calls the bill "extreme voter suppression" that "could disenfranchise 318,000," one-third of them African-Americans, "guaranteeing . . . less voter participation," in part because "North Carolina no longer has to clear these voting changes" under the Voting Rights Act. Dahlia Lithwick blogging at Slate identifies a "bastion of voter suppression" now that North Carolina no longer had to "check [its] crazy" under the VRA's preclearance regime, likening "the beatings, deaths, police-led violence and brutality" of the Civil Rights era with "how egregious state efforts at vote suppression have been and continue to be, and how extensive the record of brazen misconduct remains." Scott Keyes blogging at ThinkProgress explains that the bill is a "wrecking ball" permitted after the VRA has made "it easier for states with a history of racial discrimination like North Carolina to enact new voter suppression laws."

The Supreme Court handed down a decision in Shelby County v. Holder last month invalidating Section 4 of the VRA. The coverage formula, the Supreme Court explained, hadn't been legislatively updated in approximately 40 years. The country, the Court explained, has changed: voter participation among minority voters has increased dramatically; the gap between white voters and black voters has declined, and in some places black voter turnout exceeds white voter turnout; and so on. As the VRA preclearance regime was justified only because of "exceptional conditions" in those covered jurisdictions, the Court reasoned, the absence of those conditions--or, a diminution of those conditions in relation to the rest of the country--rendered the formula inadequate for today.

And so, the lament goes, if only the coverage formula under the VRA had not been unconstitutional, 40 counties in North Carolina would still be covered, and this "voter suppression" bill of voter identification would require preclearance by the Department of Justice.

But what about Pennsylvania? 

Pennsylvaia recently enacted a voter identification law. Mr. Berman blogged that the law was "unjust, unnecessary and discriminatory" because, among other reasons, "voters in predominately black precincts in Philadelphia are 85 percent more likely than voters in predominately white precincts to lack state-issued ID." Ms. Lithwick blogged that voter identification laws (like Pennsylvania's) "look an awful lot like methods pioneered by the white supremacists from another era that achieved the similar results" from politicians "capitalizing on the remnants of Jim Crow," as such laws are "so clearly reminiscent of the Jim Crow era." Mr. Keyes blogged that the Pennsylvania voter identification law "could bar hundreds of thousands, predominantly minorities and the elderly, from the ballot box," conceding that "Pennsylvania, however, is not subject to the Voting Rights Act and does not need preclearance from the Justice Department."

So, why not? If Pennsylvania (and states like it) are enacting  "Jim Crow" "voter suppression" laws, and if their conduct is as egregious as North Carolina's, then why lament the loss of the VRA for North Carolina, without words for covering jurisdictions like Pennsylvania?

Therein lies the logical problem (and it takes a bit of formal logic to get there, so stick with this even-longer post).  The Court in Shelby County  found that the covered and uncovered jurisdictions just weren't so different anymore. Congress hadn't adequately justified treating the covered jurisdictions differently, subjecting them to an "exceptional," "unprecedented" remedy of preclearance.

So the more North Carolina voter identification opponents lament the loss of the VRA, the more they undermine it when opposing other voter identification laws. North Carolina, for instance, is acting like the legislatures in many other states. Its election laws are not terribly different than what other states are proposing. The Court, in other words, was right: the fortuitous fact that counties in North Carolina used impermissible voting laws during the Johnson and Nixon administrations hardly should mean that its attempt to enact a law should be stymied when a comparable law in Pennsylvania has no such coverage.

Now, the immediate rejoinder is fourfold: North Carolina's law might be more onerous than Pennsylvania's, which justifies a disparate treatment; North Carolina's law is a bundle of "voter suppression" tactics; one voter identification law cannot be the basis on which to examine the difference in covered and uncovered jurisdictions; and this event proves that more coverage is needed, not that no coverage is needed.

Is North Carolina's voter identification law more onerous? Well, if Pennsylvania's and laws like it are "discriminatory" and akin to "Jim Crow" and affects "predominantly minorities," it's hard to say that the quantum of outright discrimination, if true as alleged, justifies an exemption for one discriminator but not the other.

Is North Carolina's bundle of "voter suppression" tactics distinguishable? Perhaps. But, again, even if the quantum of outright discrimination differs, the rhetoric employed over voter identification laws writ large, and Pennsylvania's in particular, suggests that these jurisdictions should not be treated differently.

 

Is it fair to evaluate the entirety of the VRA coverage formula under this single debate over voter identification laws? Maybe not. But if these tactics are as egregious as alleged, these kinds of laws are at the core of the kinds of "voter suppression" tactics akin to "Jim Crow" that the VRA was designed to eradicate. It's hard to think of the kinds of laws that have created as much passion as these laws. Occasionally, early in-person voting or same-day registration laws are discussed, but the recency and increase in voter identification laws make it a good proxy for the debate. 

Finally, does this mean that we need to increase  the scope of the coverage formula under the VRA? This creates a problem for VRA supporters, too. As South Carolina v. Katzenbach  explains, the remedy in Section 5 was an "uncommon exercise of congressional power," but "exceptional conditions" and "these unique circumstances" justified the legislation. With few exceptions, most agree that conditions today are dramatically better for minority voters than they were in 1965, both in covered and uncovered jurisdictions.

So if a new coverage formula increased  the number of covered jurisdictions, the Court would face two dilemmas: whether the new Section 4 formula was rational (which, given an adequate and thoughtful congressional record, it may well be), and then whether the remedy in Section 5 is constitutional. And if the "exceptional," "unique" circumstances of 1965 are dramatically better for minority voters, then it's going to be extremely difficult for proponents to justify expanding  the preclearance regime.

Preclearance, after all, is a fairly drastc remedy. It halts the enforcement of a law that the jurisdiction otherwise had the authority to enact. It's the kind of proposal that was ultimately rejected at the constitutional convention. The Reconstruction Amendments give Congress a new power to try unique remedies, but that power, of course, is not unfettered.

So if the conditions have improved, it's difficult to argue that more  jurisdictions should be covered, under either the Court's most recent or earliest precedents.

Which leaves opponents of North Carolina's voter identification law in a difficult position if they lament the loss of the coverage formula of the VRA. They are essentially conceding that North Carolina, previously covered, is behaving substantially similar to previously uncovered jurisdictions. But they reject that North Carolina should remain uncovered. So if North Carolina is going to be covered, then similarly-situated jurisdictions should also be covered, too. And if that's the case, it would almost assuredly include more jurisdictions. But that cannot hold, either, if conditions have improved. And perhaps there are non-voter identification law-related reasons to cover North Carolina but not Pennsylvania. But that is not the argument being made: the "voter suppression" tactic is a voter identification law in both covered and uncovered jurisdictions, and the loss of the VRA is lamented specifically in the context of North Carolina's voter identification law.

And so, opponents of North Carolina's voter identification law may well have a very valid claim on the merits of whether voter identification is a good idea. But when it comes to the Section 4 formula, the lament mirrors the lament of previously-uncovered Section 4 jurisdictions--and it ultimately undermines the very case for Section 4 if covered and uncovered jurisdictions are behaving similarly.

Quick thoughts on Shelby County v. Holder

The Supreme Court handed down its opinion in Shelby County v. Holder, addressing the constitutionality of Section 4(b)'s coverage formula that subjected a number of states (e.g., Southern states with a long history of Jim Crow laws) to "preclearance" under Section 5 of the Voting Rights Act before they enacted any changes to their election laws or administration. Here are my quick thoughts.

  • This result should come as a surprise to literally no one. In 2009, the Supreme Court handed down a decision in Northwest Austin Municipal Utility District Number One v. Holder  in which it unanimously--unanimously--found "serious constitutional questions" about the coverage formula (one justice would have found it outright unconstitutional). Congress, however, did not take this warning seriously (apparently). The decision to strike down the coverage formula was not a surprise.
  • Some have critiqued that such a result is not "merely" striking down the coverage formula, but that, as Congress is not likely to come up with a new formula, Section 5 is effectively dead. I'll remain cautiously optimistic that Congress will attempt to hash something out; after all, there are things that Congress might include in the law (e.g., "voter integrity"-type laws). Of course, it might not. But I do think it's significant that the Court chose not to address the remedy (i.e., preclearance) as an unconstitutional exercise of power; instead, it is that Congress failed to tailor the law appropriately. (But, admittedly, I may be the only one in the room who thinks Congress may develop a new coverage formula....)
  • There are many provisions of the Voting Rights Act that remain--most prominently, Section 2 lawsuits and the "bail-in" coverage under Section 3.  The Voting Rights Act wasn't struck down; a provision (admittedly, a rather significant provision) was.
  • In the opinion itself, Chief Justice Roberts relies fairly heavily on Northwest Austin --much to Justice Ginsburg's chagrin in dissent. She calls its language "dictum" in places and rejects that  the "serious constitutional questions" raised there implied an answer. In Chief Justice Roberts's quest for unanimity in that case, it appears he got the upper hand.
  • This case was a facial challenge. I find this one of the hardest aspects of the case. If Shelby County were solely challenging Section 5, it would be easier under the Court's precedents to find that there was adequate evidence in Congress for coverage to exist "as applied" to Shelby County. Indeed, I think, based on precedent, Justice Ginsburg has the upper hand (pp. 23-30).
    But that entire portion of Justice Ginsburg's opinion refers to Section 5, and only invokes Section 4 at 29 of that 8-page part of the dissent. Footnote 9 is instructive: "[T]he Court asserts that Shelby County may prevail on its facial challenge to [Section] 4's coverage formula because it is subject to [Section] 5's preclearance requirement by virtue of that formula. . . . This misses the reality that Congress decided to subject Alabama to preclearance based on evidence of continuing constitutional violations in that State."
    This, I think, is the weakest case on the facial challenge front--and probably why the only meaningful discussion of Section 4 in this portion of the dissent is dropped in a footnote. The majority emphasis that Congress uncritically left its coverage formula in place. It may well be that a new coverage formula would include Alabama, but the dispute is whether Congress "decided" much of anything at this point.
    This is also why, I think, Chief Justice Roberts's emphasis on Section 4 is more than semantics. If he were examining Section 5, he would have a much harder case to make. But he emphasizes Section 4's coverage formula instead.
    One may still believe that Congress had adequate evidence presented that the existing coverage formula in Section 4 was correct. But I think the emphasis on Section 4 makes the facial challenge a harder case.
  • The majority and the dissent seem to agree that coverage of Arizona and Alaska, which have not had any successful Section 2 suits during a 24-year stretch, may  (this is some speculation) exclude them from coverage (majority at 8; dissent at 29).
  • Chief Justice Roberts (perhaps taking a cue from his predecessor) is notoriously cagey about which provision of the Constitution he is interpreting (he suggests rather blandly "[b]oth the Fourteenth and Fifteenth Amendments," n.1)  and the standard of review (he refuses to cite City of Boerne v. Flores  or the "congruence and proportionality" test, but finds the formula "irrational"--it looks like it'll stick with rational basis review to avoid the harder problems post-Boerne).
  • But there is a revitalized Tenth Amendment in the case: the Court cites Bond v. United States  (slip op. at 9) and emphasizes the Tenth Amendment citation in Georgia v. Ashcroft  (slip op. at 10). 
  • The majority comes back, time and again, to "things have changed dramatically," "no longer such a disparity," "history did not end in 1965," and the like. In perhaps its strongest claim on the Fifteenth Amendment, "The Amendment is not designed to punish for the past; its purpose is to ensure a better future."
  • Much of this opinion was telegraphed in Northwest Austin . It's hard to come up with novel things to say for those who've read it, and re-read it, these last four years.... 
  • The dissent's strongest argument (in my view) is its examination of Section 2 challenges in covered and noncovered jurisdictions (19-23). It emphasizes that Section 2 challenges are significantly more successful in covered than noncovered jurisdictions, which suggests the covered jurisdictions have lasting problems.  The majority suggests that this "record" played "no role in shaping the statutory formula before us today"--but that, I think, undermines what one ordinary views as "rational basis" review; that is, the Court can come up with reasons even if Congress didn't include them in the record.

To emphasize a point raised earlier, will Congress develop a new Section 4 coverage formula so that Section 5 will live again? The predictions say no. But it's in this area that I'll continue to remain cautiously optimistic. There may be political horse-trading, and the coverage formula may be significant different (and almost assuredly smaller). But before declaring the death of Section 5, let's give Congress a couple of weeks to see if anyone intends on raising a serious alternative. Supporters of the Voting Rights Act may be pleasantly surprised.

Final thoughts on oral argument

This is the eighth and final post in a series about the oral argument in Shelby County v. Holder.

As discussed in my last post, the legal standard in Shelby County v. Holder is an issue of some dispute. But it is something the justices essentially left untouched at oral argument. If the legal standard, which is still hotly disputed over the last two decades, is not one of the things the justices care to clarify at oral argument, then what is oral argument really doing?

As I suggested, first exploring the questions the justices did ask and then analogizing it to theater, oral argument is not, on the whole, serving its ostensible goal. It is not about clarifying or sharpening the issues in dispute. It may be that this happens occasionally, or that some justices use it for that reason. But if the argument in Shelby County is instructive, and if the justices aren't asking questions to clarify the written briefs about one of the most high-profile cases of the term involving one of the most important pieces of legislation in American history, then perhaps it's time to reconsider the utility of oral argument altogether.

If we truly believe that the Court needs an opportunity to ask the parties to clarify their positions, we should eschew oral argument altogether and instead have the Court draft questions for the parties to address in supplemental briefing. This happens occasionally, most notably when a case is argued, the justices realize there is a problem, and the Court schedules the case for reargument and requests supplemental briefing.

Instead of the theater of oral argument, it might be best for the Court to ask clarifying questions of the parties in writing, and then solicit written briefs in return. It would maximize the quality of the research and the answers; it would emphasize the most important part of litigation, written briefs; and it would remove the theatrical or publicity-oriented aspects of this process.

I admit it's not nearly as glamorous or publicly seductive. But if our quest is for the Court to reach the right result in the case with the best research and briefing possible, I am convinced that eliminating oral argument and providing a better alternative to clarifying the justices' questions would improve our judicial system.

What standard of review might the Court use in Shelby County?

This is the seventh in a series about the oral argument in Shelby County v. Holder.

Much ink has been spilled over a number of what I view as minutiae over the oral argument in Shelby County v. Holder. But there's one significant question at stake, so far mostly undiscussed: what standard of review should apply?

Without getting into the weeds (and grossly oversimplifying some of the principal cases), there are three major schools of thought as to how the Supreme Court should evaluate Congress's exercise of power under the Fourteenth and Fifteenth Amendments. The first is essentially rational basis, or a deferential "necessary and proper" view, first articulated in McCulloch v. Maryland in 1819: "If the end be legitimate, and within the scope of the Constitution, all the means which are appropriate, which are plainly adapted to that end, and which are not prohibited, may constitutionally be employed to carry it into effect."

The second is a more exacting review, "congruence and proportionality." In City of Boerne v. Flores in 1997, the Court concluded that the Fourteenth Amendment was "remedial, rather than substantive," which limited the scope of ills that Congress could address: "The appropriateness of remedial measures must be considered in light of the evil presented."

The Court identified these two standards in Northwest Austin. And the third is perhaps idiosyncratic. Justice Scalia in Tennessee v. Lane rejected his previous use of the "congruence and proportionality" standard. His test would find that Congress may "enforce" the tenets of the Fourteenth Amendment but not enact prophylactic legislation.

Complicating this is that there has been a great deal of application of "congruence and proportionality" under the Fourteenth Amendment, but it's largely been resisted under the Fifteenth Amendment, particularly as the test is of relatively recent vintage. Apart from the dispute of which standard to apply to the Fourteenth Amendment, then, is what to apply to the Fifteenth Amendment.

We can perhaps glean some hints as to what test the Court will apply by the questions asked. Admittedly, even if a justice asks about a particular test, she may not intend to use that test; but, I would suspect (and this is admittedly a hunch) justices are more inclined to ask about the standards they intend to write about.

Chief Justice Roberts and Justices Kennedy and Alito all cited "congruence and proportionality" as the standard.

CHIEF JUSTICE ROBERTS: Is the formula congruent and proportional today, or do you have this reverse engineering argument?
...
To -- to the problem or -- or was the formula congruent and proportional to the remedy?

Tr. at 45.

CHIEF JUSTICE ROBERTS: Well, we also said congruent and proportional.
Tr. at 56.

JUSTICE KENNEDY: Is that a methodology that in your view is appropriate under the test of congruence and -- and proportionality?

Tr. at 19.

JUSTICE ALITO: But when Congress decided to reauthorize it in 2006, why wasn't it incumbent on Congress under the congruence and proportionality standard to make a new determination of coverage? . . .
But why -- why wasn't that required by the congruence and proportionality standards?

Tr. at 33-34.

Justice Sotomayor suggested the standard might be irrelevant, and did ask about the Fifteenth Amendment.
JUSTICE SOTOMAYOR: And so the question becomes, why do we strike down a formula, as Justice Kagan said, which under any circumstance the record shows the remedy would be congruent, proportional, rational, whatever standard of review we apply, its application to Alabama would happen.

Tr. at 6.

JUSTICE SOTOMAYOR: Would you tell me what you think is left of the rational means test in Katzenbach and City of Rome? Do you think the City of Boerne now controls both Fourteen -- the Fourteenth and the Fifteenth Amendment and how we look at any case that arises under them?

Tr. at 27.

Justice Breyer repeatedly emphasized rational basis review.

JUSTICE BREYER: And so the question I guess is, is it rational to pick out at least some of those States? And to go back to Justice Sotomayor's question, as long as it's rational in at least some instances directly to pick out those States, at least one or two of them, then doesn't the statute survive a facial challenge?
...
That's the question of rationality.

Tr. at 12-13.

JUSTICE BREYER: Is that an irrational decision?

Tr. at 17.

JUSTICE BREYER: So it was rational when you continue.
...
I want to know what your response is as to whether we should -- if he's right -- if he's right that there is an irrationality involved if you were writing it today in treating State A, which is not too discriminatorily worse than apparently Massachusetts or something.

Tr. at 43-44.

JUSTICE BREYER: Now the question is, is it rational to do that?

Tr. at 60.

(Note that some of these address the "equal footing doctrine," a slightly different argument about whether Congress may treat some states differently than others.)

I should note one important fact: oral argument may (emphasis on "may") have illuminated what standard they intend to apply. But there is essentially no attempt to ask the advocates which standard should apply, or why a particular standard is preferred (except Justice Sotomayor's question about the Fifteenth Amendment). It is as if each justice has already determined the standard and is simply asking the advocates to apply that standard given the factual context.

That's certainly a useful exercise. But it does suggest that oral argument is not serving the clarifying purpose that one might aspire for it to perform.