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The Book I Wish Justice Kennedy Would Read

By Jack M. Balkin

There's a book I wish Justice Kennedy would read if, as many expect, he is sitting down now to write a decision striking down Section 5 of the Voting Rights Act. It's called The Triumph of Voting Rights in the South, by Charles Bullock and Keith Gaddie, who were kind enough to send me the page proofs. The book goes directly to the question Justice Kennedy asked (four times, by my count) about Congress's power to require "covered" jurisdictions -- mostly those in the Deep South -- to clear in advance any changes they wish to make in their voting systems with the Attorney General. As I explain here, Section 5 was a powerful statutory regime that allowed the Justice Department to keep up with the creative strategies that recalcitrant state and local governments used to disenfranchise voters.

Bullock and Gaddie's book offers an in-depth analysis of racial politics in both covered (Mississippi, Alabama, etc.) and non-covered states (Arkansas and Tennessee) along a variety of dimensions. Their conclusion? "Progress is uneven, but . . . undeniable and most evident where the Act has been in force the longest." Indeed, they believe there is a case for concluding "not only that the legislation had a tremendous impact, but the earlier a state became subject to Section 5, the greater that impact." They even find that Arkansas and Tennessee, the states that were not included in Section 5's coverage formula, ranked particularly low among Southern states in moving toward racial equality. (Lest one think this is propaganda from the left, note that the research was funded by the American Enterprise Institute and has been widely cited by opponents of Section 5).

Why do I wish Justice Kennedy would read this book? You might think that it's because the book could provide at least a partial answer to Justice Kennedy's question at oral argument. But the real importance of Bullock and Gaddie's book is that it shows that, at least when dealing with a prophylactic protection like Section 5, to ask whether covered and noncovered jurisdictions are different is to ask a question that can't be answered.

If what is bothering Justice Kennedy and his brethren is that a worry that there's really no difference between covered and noncovered jurisdictions, the Arkansas and Tennessee examples, in particular, are very helpful. After all, when Section 5 was first passed, these jurisdictions were ahead of the states that are actually covered (that's why they weren't included in the coverage formula). Now they are behind. Arkansas and Tennessee may give us some sense of what could happen if Section 5 were suspended. Thus, if Justice Kennedy were looking for a comparative study to show that Congress had good reason to keep Section 5 in place, this might be it.

But Bullock and Gaddie also show just how complex and contingent racial politics remain in the Southern states. Causal relationships -- at least of the sort that would satisfy a political scientist -- are hard to establish. That's in part because Section 5 is interacting with a huge variety of other factors in shaping racial conditions in the South. We cannot confidently say whether covered and noncovered jurisdictions are different without a convenient parallel universe where we can run an alternate experiment. Perhaps covered jurisdictions are now no different from the rest of the country. Perhaps they will revert to their old ways as soon as political actors no longer have to bargain in the shadow of Section 5. Either way, definitive proof is hard to come by.

If Congress must respond to the question Justice Kennedy asked at oral argument whenever it renews a prophylactic statute, it will never come up with a wholly satisfactory answer. And it seems to me, to paraphrase John Hart Ely, that the Court ought to worry about a question that begets no answer.

Full post as published by Balkinization on May 06, 2009 (boomark / email).