Three years ago, some law professors were having a hard timing finding someone to debate the constitutionality of Obamacare’s individual mandate. I naively stepped up to the plate, which resulted in over 100 debates, speeches, panels, and public events (and, as we know, an invalidation of the mandate but salvage of the relevant provision in the form of a tax).
Now we see a similar predicament with respect to Section 5 of the Voting Right Act, the provision that effectively makes the federal government a proconsul with respect to election administration in a seemingly random assortment of states, counties, and towns around the country. As I’ve blogged and written in a Supreme Court brief, Section 5’s extraordinary powers were justified only under Jim Crow’s exceptional conditions; the Voting Rights Act’s success in eradicating those conditions has happily obviated Section 5’s constitutional legitimacy. (As I noted more recently, and wrote in another brief, Section 2 has its problems as well.)
Yet my view isn’t shared in legal academia – surprise, surprise – and a leading election law scholar posits that “the case for Section 5’s constitutionality is so clear that the liberal election law professors simply have the better of the argument!” Three weeks before the Supreme Court hears argument in the pivotal case of Shelby County v. Holder, there is apparently a dearth of scholars willing to speak out against this egregious violation of federalism and equal protection.
Well, in the words of How I Met Your Mother’s Barney Stinson, challenge accepted!
I may not be full-time faculty anywhere – is that a negative? – but I hereby announce that I will travel anywhere at anytime to debate the constitutionality of Section 5 of the Voting Rights Act. Whoever sets up the debate has to pay my travel expenses and take me out to a nice dinner, but that’s it. Any takers?