Dean Chemerinsky
Dean Chemerinsky

Erwin Chemerinsky and Rick Hasen of UCI Law Weigh in Far and Wide on Voting Rights Act

Something more supreme has overshadowed the news that UC Irvine School of Law Dean Erwin Chemerinsky has been named to a new endowed chair in First Amendment Law through a $1.5 million gift from Raymond Pryke, owner and publisher of the Valleywide Newspapers chain based in Hesperia. Chemerinsky and a UCI colleague have been popping up in newspapers and other media outlets far away from the High Desert lately because of the U.S. Supreme Court's decision Wednesday to possibly gut the Voting Rights Act.

One of Chemerinsky's seven books (publish or perish!) is The Conservative Assault On the Constitution (2010), and he and fellow election-law expert Rick Hasen fear conservative Chief Justice John Roberts' assault on Section 5 of the Voting Rights Act through the case currently before the court, Shelby County v. Holder.

The Voting Rights Act of 1965 outlawed discriminatory practices that, in particular, disenfranchised African-American voters. Signed by President Lyndon Johnson and considered an extension of landmark civil-rights legislation, the Voting Rights Act targeted Southern states that imposed prerequisites or qualifications for voters. Congress has extended it numerous times since its passing, generally in five-, seven- and even 25-year increments.

Section 5 requires certain states and counties to get "preclearance" for voting requirements from the Department of Justice or a three-judge panel of the U.S. District Court for the District of Columbia, which must ensure the proposed steps do not discriminate based on race, color or minority language. Another section being challenged sets out a formula for identifying jurisdictions that fall under the rule.

Some have complained requiring preclearance in some but not all (or no) jurisdiction is unfair. Others have blasted the law for--they believe unlawfully--creating multilingual ballots and racially gerrymandered voting districts. But the biggest complaint currently before the Supremes is the Voting Rights Act is unnecessary because the racial prejudice in 1965 America has nearly disappeared.

Reacting to a conservative Voting Rights Act opponent who made his case in the Wall Street Journal, the progressive Media Matters for America pointed to the following from Chemerinsky:

It always is tempting to declare that our society is post-racial and that racism is over. In 1883, less than two decades after the Civil War, the Supreme Court in the Civil Rights Cases declared unconstitutional the Civil Rights Act of 1875 and said that "[w]hen a man has emerged from slavery, and by the aid of beneficent legislation has shaken off the inseparable concomitants of that state, there must be some stage in the progress of his elevation when he takes the rank of a mere citizen and ceases to be the special favorite of the laws."

Now challengers to Section 5 of the Voting Rights Act are arguing that the law is no longer needed because race discrimination in voting is largely a thing of the past. That is simply wrong, and the Supreme Court should defer to the nearly unanimous judgment of Congress that this law remains an essential weapon in the fight against race discrimination in voting.

Hasen, who also teaches political science, was taken aback on his Election Law Blog by Justice Anton Scalia saying during his oral argument Wednesday that Congress has not been overwhelmingly and in bipartisan fashion approving the Voting Rights Act because the country needs it due to "a phenomenon that is called perpetuation of racial entitlement." Members of Congress can thus thwart the will of their states/district because they gain nothing politically voting against the law, especially if their jurisdictions include all-black districts or neighborhoods, Scalia added.

"The state government is not their government, and they are going to lose--they are going to lose votes if they do not re-enact the Voting Rights Act," Scalia said. "Even the name of it is wonderful: The Voting Rights Act. Who is going to vote against that in the future?"

By the time Hasen posted, others were already piling on Scalia's "racial entitlement" thread, so the scholar instead took issue with the justice's notion that states cannot fend for themselves with Congress and need the high court's intervention. While I was wondering if anyone on the Right would accuse Scalia of advocating active judgeship, Hasen belittled the idea that state governments don't already have great influence over their Congress people.

"Is Justice Scalia claiming that states are powerless in other arenas?" Hasen writes. "Or is he saying that the fear of being labeled racist stops the political process in its tracks and prevents states from protecting themselves. Either way, it seems a pretty flimsy argument to support extra judicial protection for some of the most powerful actors in the political scene."

Hasen would also pop up in media from Alaska to Austin, Texas, chiming in on a Voting Rights Act. He's also taking his Voting Rights Act act on the road, appearing on a panel about the case Monday at UC Berkeley, speaking on "The Voting Wars Revisited" Tuesday at UC Davis and keynoting a University of Virginia symposium March 23.

Audiences can expect Hasen to argue the Voting Rights Act jurisdictions should be expanded based on states such as Ohio and Florida having just scaled back early voting that has encouraged more minority (translation: Democratic) voting. But it's the very fact that those states are not covered under Section 5 that justices will likely use against the law.

"If you don't have Ohio and Florida, it might suggest that the coverage formula is a little out of whack," Hasen observed. "The way the Supreme Court federalism cases stack up, and the way the conservative justices view these cases, I'm predicting the Court will strike it down."

If Hasen is correct, it will be the first time since the late 19th Century that the Supreme Court has struck down a major civil-rights law, according to Chemerinsky, who, like Hasen, has a right to say these things because of the First Amendment right to free speech.

"As the holder of the Pryke Chair, Chemerinsky will help solidify the School of Law's teaching and research in First Amendment and media law, serving as a national opinion leader in free speech and media issues," reads a UCI School of Law statement. "He is a respected national authority in the field, and he will teach, write and speak on First Amendment issues of the day, including the role of a free press in preserving democratic society.

Saying he was "deeply honored" by being named the Pryke Chair, Chemerinsky noted that an event tied to the endowment will be the annual First Amendment Law Lecture, which is to be delivered by lawyer Kelli Sager March 18. (Fun fact: Ms. Sager sent me a Christmas card this year, as her Davis Wright Tremaine firm used to represent OC Weekly.)

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