The Great Debate

Opting into the Voting Rights Act

This is part of the Reuters series on the future of the Voting Rights Act’s Section 5, which the Supreme Court may strike down this year. You can read other pieces in the series here.

If the Supreme Court strikes down the Voting Rights Act, many will argue that we should abandon the civil rights model of elections and opt for a national law setting uniform election standards that would protect every voter.

I’m all for protecting every voter. But I would hate to lose what Section 5 provides – protections for racial minorities, in particular. The other protections against racial discrimination in voting – most notably, Section 2 of the Voting Rights Act – are too costly and cumbersome to protect racial minorities from the practices that Section 5 now deters.

Section 2 works well for high-stakes redistricting battles, where the game is worth the candle. But for the myriad low-level discriminatory practices, no civil rights group has the resources to bring suit every time. We still need what Section 5 provides: a simple, quick and low-cost strategy for protecting minority voters.

The puzzle is how to create such a system without treading on whatever constitutional prohibitions the court sets up. If the court strikes down Section 5 for targeting some jurisdictions but not others, that problem can be solved by creating a nationwide scheme. After all, there’s plenty of discrimination outside the Deep South.

If the court strikes Section 5 of Voting Rights Act

This is part of the Reuters series on the future of the Voting Rights Act’s Section 5, which the Supreme Court may strike down this year. You can read other pieces in the series here.

We celebrated Martin Luther King Jr.’s birthday last week in the shadow of a fight over the constitutionality of a key provision of the Voting Rights Act. The Supreme Court will soon hear arguments in Shelby County v. Holder, raising the question whether Section 5 of the act, which requires that states and localities with a history of racial discrimination in voting get permission from the federal government before making any changes in election procedures, is now unconstitutional. The smart money is on the court striking down the law as an improper exercise of congressional power, although Justice Anthony Kennedy or another justice could still surprise.

If the court strikes Section 5, the big question is: What comes next? Reuters has invited a number of leading academics, who focus on voting rights and election law, to contribute to a forum on this question. In this introductory piece, I sketch out what may happen and what’s at stake.

The Roberts court’s fondness for intellectual property cases

In 1982, Nike began selling the Air Force 1 with its signature “swoosh” design. Almost 30 years later, it sued a small sneaker maker in New York federal district court for trademark infringement. During the litigation, Nike promised not to sue for old designs, mostly because its competitor’s shoes were no longer being widely sold and litigation costs had escalated. It was too late. The scrappy newcomer already had counterclaimed, challenging the validity of Nike’s trademark registration. A battle over the extent of that promise, under the guise of procedure, ensues.

A decade ago, the case might have been an obscure dispute involving a less-than-urgent constitutional question. But last month, the Supreme Court heard oral arguments in a  suit that could change the way trademark and possibly patent registration is practiced in the fast-moving, entrepreneur-flooded digital economy.

The case is remarkable for the court’s increased willingness to intercede in questions with far-reaching effects on not only innovation but also big business. After all, it is one of four such disputes to be resolved this term. These matters will take up 8 percent of oral arguments, compared to 6 percent and 5 percent in 2010 and 2011 and just 2 percent 20 years ago, reports SCOTUSblog. The relatively high number of cases underscores the court’s robust entry into copyright, trademark and patent law that was created before the digital era.

Delegitimization of Obama begins


The Republican drive to delegitimize President Barack Obama’s possible second term has started.

As recent polls have allowed for the possibility that Republican presidential nominee Mitt Romney could win the popular vote while the president carries the Electoral College, the conservative blogosphere has lit up not only with long-overdue attacks on the Electoral College but also with the specious argument that a popular-vote loss for Obama will undermine his mandate and justify continued obstruction by Republican lawmakers.


Under the Constitution, the Electoral College winner becomes president. Candidates know that when they plan their campaigns, and wise candidates could care less about the popular vote when they plot strategy and deploy resources. The popular vote, therefore, is a misleading measure of a candidate’s success or the strength of a mandate.

What happened to post-racial America?

The Supreme Court heard arguments Wednesday in a long-standing racial controversy – without any reverberations on the presidential campaign.  This reveals a lot about emerging racial politics of the Obama era.

The court is deciding whether public universities can consider race in their admissions process, and a broad ruling here could make affirmative action illegal across state and federal governments. That means, among other things, less diversity in the halls of power.

The solicitor general for America’s first African-American president cautioned against that fate. The United States needs affirmative action, he told the court, because it helps groom “effective leaders in an increasingly diverse society.”

Now is the time to focus on healthcare affordability

Now that the Supreme Court has provided legal certainty on the recent healthcare reform law, the nation must turn its attention to affordability. While the law expands coverage to millions of Americans, a goal health plans have long supported, major provisions of the law need to be changed to avoid significant cost increases for consumers and employers.

Healthcare affordability is an issue that touches every part of our nation: single parents struggling to make ends meet; two-income families trying to get ahead in challenging times; and retirees trying to stretch their budgets. Equally important, rising medical costs crowd out government spending on other priorities, such as education and infrastructure, and put our nation’s businesses at a competitive disadvantage in a global economy.

The first priority is to address a number of the reforms taking effect in 2014 that will make healthcare coverage more expensive.

After healthcare ruling, conservatives again misplace their ire

Last week’s ruling by Chief Justice John Roberts that the Affordable Care Act is constitutional has thrown conservatives into consternation. Rick Santorum says he is “very disappointed … It was a folly of a mistake.” Conservative radio host Michael Savage suggests Roberts must be on mind-altering medication. Even those, like John Boehner, who said they respected his jurisprudence disagreed with his decision.

Roberts now finds himself in the same bad standing with conservatives as Fed Chairman Ben Bernanke. Bernanke’s credentials as the heir to Milton Friedman, Ronald Reagan’s monetarist guru, have not been enough to save him from abuse either. When good conservatives like Roberts and Bernanke are traduced by their own side for being closet liberals, letting Barack Obama introduce European social democracy through the back door, something strange is afoot in the conservative universe.

The definition of a conservative used to be someone who values institutions above all as the bulwark against tyranny. That is the lesson left by the father of conservatism, Edmund Burke. But America’s most valued institutions, and those who operate them, are under attack from the very people who at one time would have been their stoutest defenders. People who like to call themselves conservatives, and set themselves up as arbiters of who is a true conservative, now despise the very institutions that safeguard our fragile freedoms from tyranny.

It may be constitutional, but it’s still a bad law

So the Supreme Court has upheld most of the Affordable Care Act as constitutional. As someone who supports universal healthcare, who has lived most of his life in the UK, which has an admirable national health service, and who believes affordable healthcare for all is the mark of a civilized nation, I say it’s too bad. It is a wretched piece of legislation: complex, expensive, incomprehensible – do you know anyone, even a health expert, who can tell you what it means in a single sentence – easy for the unscrupulous to manipulate, unpopular, and politically catastrophic for the president.

All credit to Barack Obama for at least getting universal healthcare on the statutes, something that has eluded presidents of both stripes for a century. It is a shaming fact that 50 million Americans have to either burden themselves with debt or throw themselves on the mercy of emergency rooms when they get sick. Some may be libertarians, others so rich they don’t have to worry about paying out a fortune when they fall ill. But they are in a minority.

Most are ordinary folks, those who don’t enjoy the canopy of care provided through employers, oblivious young people who imagine they’re immortal, or those without work or who simply can’t afford exorbitant premiums. These are the mothers with blubbing young children you meet in any emergency room at any time of day or night, throwing themselves and their offspring on the mercy of hospital staff. They are not making some principled stand about keeping government at bay. They are the sort of people – poor people, or people on modest incomes — you might imagine a Democratic president would strain to serve.

Romney’s second shot at healthcare reform

Americans believe in second chances. The oral arguments before the Supreme Court last week were a rare opportunity to dispassionately re-examine the divisive healthcare debate of two years ago. What happens if, after the smoke clears, we get a second chance at healthcare reform?

We’ve long known that healthcare will be a central theme in the 2012 presidential contest. The High Court’s deliberations and June decision only reinforce that reality for President Obama and Governor Romney.

Unlike with the Patient Protection and Affordable Care Act (PPACA), the constitutionality of Governor Romney’s Massachusetts law has never been seriously questioned. States, not the federal government, have police powers, allowing them to require purchases (car insurance, taxes and licensure) and to pass wide-ranging public health laws and public safety laws. The Bay State law enjoys broad popular support.

Here’s why health insurance is not like broccoli

The fate of universal healthcare coverage that the United States has been trying to achieve for over 100 years may boil down to broccoli.

The broccoli argument is simple and was frequently referred to in the recent Supreme Court arguments: If the government can require people to buy health insurance, why couldn’t it require people to buy broccoli, which also enhances people’s health? This question, at the heart of the conservative objection to the individual mandate to buy health insurance, illustrates the so-called limiting principle the Supreme Court must rule on: Under the Commerce Clause, does Congress have the constitutional power to compel people to act, in ways they might object to, when their inaction can harm others?

The High Court never got clear on why health insurance is not like broccoli and can thus be constitutionally regulated. There are two important differences that inform the principle for limiting congressional power to compel people to purchase goods and services.