Justice Kagan was wrong: Alabama would not be covered under new Voting Rights Act

January 25, 2014

I noted earlier that members of Congress recently introduced the Voting Rights Act Amendments Act, designed to respond to the Supreme Court’s recent decision in Shelby County v. Holder.  (For a skeptical assessment of the bill, see this post by Franita Tolson, a voting-rights supporter who fears that the bill will be counterproductive.)

This week, several publications noted that the state of Alabama would no longer be covered under the Act.  This struck me as amusing.  Why?  Because at oral argument in Shelby County — a county in the state of Alabama — Justice Kagan said the following:

But think about this State that you’re representing, it’s about a quarter black, but Alabama has no black statewide elected officials. If Congress were to write a formula that looked to the number of successful Section 2 suits per million residents, Alabama would be the number one State on the list.
If you factor in unpublished Section 2 suits, Alabama would be the number two State on the list. If you use the number of Section 5 enforcement actions, Alabama would again be the number two State on the list.
I mean, you’re objecting to a formula, but under any formula that Congress could devise, it would capture Alabama.

Shelby County’s lawyer, Bert Rein, did not respond by telling Justice Kagan she was wrong about this — just that it did not matter because the formula was being challenged on its face.

In light of this exchange (a version of which is repeated in the opinion and dissent), it is interesting that the new bill apparently would not apply to Alabama.  I don’t mean to say that it would be irrational for Congress to extend voting-rights legislation to Alabama, but apparently it is not true that “any formula that Congress could devise . . .  would capture Alabama.”

Will Baude is an assistant professor at the University of Chicago Law School, where he teaches constitutional law and federal courts. His recent articles include Rethinking the Federal Eminent Domain Power, (Yale Law Journal, 2013), and Beyond DOMA: State Choice of Law in Federal Statutes, (Stanford Law Review, 2012).
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