Today, D.C. District Court Justice John Bates dealt a blow to the Holder Justice Department by fast-tracking a constitutional challenge to Section 5 of the Voting Rights Act.
I had previously written that the Justice Department requested nine months of factual discovery. I also reported that the DOJ made courtroom arguments that may be untrue. Today, Judge Bates rejected the DOJ positions entirely, calling it “absurd” to pursue extensive discovery.
Section 5 of the Voting Rights Act requires mostly southern states to obtain federal government approval of any change involving voting or elections. Merely moving a polling place from a school gym to a fire hall requires Washington’s approval. Increasing or decreasing the number of voter registration offices, or their hours of operation, also requires pre-clearance. The Supreme Court almost overturned the law a few years ago, saying the requirement may be constitutionally defective, but held off the ultimate decision for another day.
Judge Bates’ decision brings that day much closer. He rejected the DOJ’s request to delay the matter to conduct nine months of expensive discovery.
As they have in other potential challenges, in this case the DOJ thought they could dig up the body of Bull Connor and explain that the sins of the past justify the regulation of the present. They relished the prospect of a parade of evidence showing little change in the South. They couldn’t wait to remind the court that not long ago, blacks could not easily register to vote.
The problem is that “not long ago” is approaching a half-century.
Of course, a great deal has changed in the South. Whether it has changed enough will be the question that at least five justices on the Supreme Court may answer in the affirmative very soon. Bates ruled that the Department is bound by the congressional record from the 2006 reauthorization of Section 5.
This is a nightmare for the Department. Why? First of all, liberal law professors have written that the 2006 Congressional record simply isn’t robust enough to withstand a constitutional challenge to Section 5.
Secondly, the Department had assumed they could saddle places like Shelby County with the sins of history — the vile age of slavery, then segregation, would be on vibrant display in the courtroom. Even Shelby-specific evidence — like statements from local citizens cataloging their perceptions of modern day discrimination — are now off limits to the DOJ.
Be assured that the proposed nine months of discovery would have produced a nicely written storyline. The court might hear expert testimony of a modern Jim Crow on the loose in Shelby County towns like Calera and Vincent. The three surviving members of the Klan in Shelby might see their influence conflated into something approaching a majority on the board of the Shelby County Chamber of Commerce. Stories of modern discrimination in housing, education, and government services would fill the gaps.
Judge Bates foreclosed on this storyline. Judge Bates ripped the pages from the racial grievance playbook, saying thou shall not go beyond the Congressional record of 2006.
Parties will now argue summary judgment motions. The outcome of these motions at the district court will come sometime in early 2011, but what is decided at the lower court level will matter little. Justices on the Supreme Court will ultimately decide the issue.
Whether or not the Congressional record can support the massive intrusion into state sovereignty in a country that has elected a black president remains to be seen. One thing is for sure: seven of the states currently covered by Section 5 voted for Obama in the election. That’s another thing Judge Bates won’t allow in the record, but the Supreme Court will be taking quiet judicial notice of that inconvenient truth.
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