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SAMUEL ISSACHAROFF ON BEYOND THE DISCRIMINATION MODEL ON VOTING Discussant: ROSALIND DIXON The paper, shortly to appear in Harvard Law Review, can be downloaded from: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2306080 The issue and its significance are discussed in a New York Times editorial at: http://www.nytimes.com/2013/09/01/opinion/sunday/plan-b-for-voting-rights.html?_r=0 Abstract: Denial of fundamental rights to disfavored groups should prompt legal intervention to remedy the insults of being outcast. The immediate response is to craft a right-based regime tailored to the particularized harms suffered by that group. Such specific remediation, based on the discrete and insular quality of the disfavored group, is then coupled with judicial solicitude for the minority, one that in the famous words of the Carolene Products footnote in the U.S, cannot turn to the normal operations of the political process to seek redress. Less considered in constitutional law is what happens when redress does take hold, albeit partially, particularly where the rights in question concern being able to participate effectively in the political process. The diminution of the rights claim does not mean the issues giving rise to civil rights concerns have disappeared, but they may call for a different response both as a matter of constitutional law and as a matter of policy. In part the question is whether the response continues to take the form of particularized protections for protected minorities or broader mandates that may in practice deter much of the remaining disadvantage faced by minorities. This article focuses on a particularly sensitive application of this issue in the U.S. concerning the continuing constitutionality of the 1965 Voting Rights Act. The Supreme Court’s contentious decision earlier this year in Shelby County v. Holder closes the chapter on the most important and most successful of the civil rights laws from the 1960s. For the majority of the divided Court, the preclearance requirements of the Voting Rights Act for changing electoral practices stigmatized sovereign states and no longer bore a logical relation to the voting problems of today. That combination proved fatal for Congress’s efforts to protect minority voters through the antidiscrimination mandates of the 14th and 15th amendments, the post-Civil War guarantees of civil and political rights to the newly freed slaves. At the same time, the Court in Arizona v. Inter Tribal Council of Arizona reaffirmed expansive congressional powers under the Elections Clause, which allows Congress to assert its authority over all matters concerning the time, place and manner of federal elections. . This Article contrasts the distinct sources of federal power over elections and compares their effectiveness for the renewed battles over voter eligibility. Unlike the concerns of racial exclusion under Jim Crow, the argument presented is that current voting controversies are likely motivated by partisan zeal and emerge in contested partisan environments. The Article concludes with a proposed administrative process based on the Elections Clause that can potentially be more effective than the provisions of the Voting Rights Act struck down in Shelby County. WEDNESDAY, 16 OCTOBER, 2013 Dean’s Board Room, 2nd Floor UNSW LAW SCHOOL. NOTE: CHANGE FROM NORMAL TIME: SEMINAR AND DISCUSSION: 4.00 – 6.00 pm DRINKS: 6.00 – 6.30 pm Would those interested in attending the seminar please let Martin Krygier ([email protected]<mailto:[email protected]>) know ahead of time. SAMUEL ISSACHAROFF is the Reiss Professor of Constitutional Law at New York University School of Law. His research deals with issues in civil procedure (especially complex litigation and class actions), law and economics, constitutional law, particularly with regard to voting rights and electoral systems, and employment law He is one of the pioneers in the law of the political process, where his Law of Democracy casebook (co-authored with Stanford’s Pam Karlan and NYU’s Rick Pildes) and dozens of articles have helped to create a vibrant new area of constitutional law. He is also a leading figure in the field of procedure, both in the academy and outside. He served as the Reporter for the Principles of the Law of Aggregate Litigation of the American Law Institute. Professor Issacharoff is a 1983 graduate of the Yale Law School. After clerking , he spent the early part of his career as a voting rights lawyer. He then began his teaching career at the University of Texas in 1989, where he held the Joseph D. Jamail Centennial Chair in Law. In 1999, he moved to Columbia Law School, where he was the Harold R. Medina Professor of Procedural Jurisprudence. His published articles appear in every leading law review, as well as in leading journals in other fields. Professor Issacharoff is a Fellow of the American Academy of Arts and Sciences. ROSALIND DIXON Rosalind Dixon is Professor of Law, at the University of New South Wales, Faculty of Law, having recently served as an Assistant Professor at the University of Chicago Law School. She earned her BA and LLB from the University of New South Wales, and was an associate to the Chief Justice of Australia, the Hon. Murray Gleeson AC, before attending Harvard Law School, where she obtained an LLM and SJD. Her work focuses on comparative constitutional law and constitutional design, theories of constitutional dialogue and amendment, socio-economic rights and constitutional law and gender, and has been published in leading journals in Canada, the US, the UK and Australia, including Osgoode Hall Law Journal, Cornell Law Review, the University of Pennsylvania Journal of Constitutional Law, The International Journal of Constitutional Law and the Sydney Law Review. She is co-editor, with Tom Ginsburg, of a leading handbook on comparative constitutional law, Comparative Constitutional Law (Edward Elgar, 2011), and is currently editing a related volume on Comparative Constitutional Law in Asia (Edward Elgar, Forthcoming, 2013).
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