I haven’t had time to digest the D.D.C.’s opinion denying Texas’s request for preclearance (Rick Hasen has a great analysis here), though I wanted to focus on one argument Texas unsuccessful raised–the concept of “federalism costs.”
Finally, we reject Texas’s argument that refusing to accept statewide functional analysis would increase the “substantial federalism costs” of preclearance by further limiting state flexibility, at the risk of rendering section 5 unconstitutional. 11 See Tex. Post-Trial Br. 7 (quoting Reno v. Bossier Parish Sch. Bd. (Bossier II), 528 U.S. 320 (2000)) (internal quotation marks omitted). The constitutional avoidance canon is no aid to Texas because we are not faced with two competing yet permissible interpretations of section 5. See United States v. X-Citement Video, Inc., 513 U.S. 64, 69 (1994) (describing the interpretative presumption “that a statute is to be construed where fairly possible so as to avoid substantial constitutional questions” (emphasis added)). As we have just discussed, retrogression analysis under section 5 as amended limits our analysis to ability to elect and does not permit us to weigh degrees of effectiveness. We cannot adopt an interpretation at odds with the statutory text to avoid possible constitutional concerns
11 Because Texas has not raised the argument, we have no opportunity in this case to consider whether the federalism costs of preclearance, when weighed against current conditions, call into question the constitutionality of section 5’s remedial scheme. Cf. Nw. Austin Mun. Util. Dist. No. One v. Holder, 557 U.S. 193, 202-05 (2009) (noting the Court’s serious concerns that “current needs” may no longer justify the burdens preclearance imposes on covered jurisdictions). The constitutionality of section 5 was neither briefed nor argued to us, and we express no opinion on this significant point. In fact, our Circuit has recently held that section 5 is constitutional. See Shelby Cnty. v. Holder, 679 F.3d 848 (D.C. Cir. 2012).
Another instance of “social costs” I hadn’t seen before.
Texas argues that it should not be required to prove that it lacked any discriminatory purpose. Saddling a state with that burden, so the argument goes, adds too much to the serious federalism costs already imposed by preclearance and could “exceed Congress’ enforcement authority under the Fifteenth Amendment and violate the Tenth Amendment.” Tex. Post-Trial Br. 17-18. The only way to avoid this problem, Texas claims, is to shift the burden of proof for discriminatory intent from Texas onto the United States and the Intervenors. Id. at 18. We acknowledge the substantial federalism costs of section 5, see Nw. Austin Mun. Util. Dist. No. One v. Holder, 557 U.S. 193, 203-04 (2009) (stating that the preclearance remedy implicates serious federalism concerns), and recognize the difficulty of proving a negative. Yet it is settled law that Texas bears the burden of proving lack of discriminatory intent. See, e.g., Pleasant Grove, 479 U.S. at 469 (“The burden of proving absence of discriminatory purpose and effect is on [the covered jurisdiction].”); City of Rome v. United States, 446 U.S. 156, 183 n.18 (1980) (“Under § 5, the city bears the burden of proving lack of discriminatory purpose and effect.”); Beer, 425 U.S. at 140-41; Georgia v. United States, 411 U.S. 526, 538 (1973); South Carolina v. Katzenbach, 383 U.S. 301, 335 (1966). Texas has pointed to no evidence that Congress intended to modify this established understanding.
It seems the first instance of this term was in :
But our belief in Katzenbach that the federalism costs exacted by § 5 preclearance could be justiﬁed by those extraordinary circumstances does not mean they can be justiﬁed in the circumstances of this litiga- tion.
Most recently, Justice Scalia’s 2000 opinion in Reno v. Bossier Parish Sch. Bd. used this term.
In sum, by suggesting that § 5 extends to discriminatory but nonretrogressive vote-dilutive purposes, appellants ask us to do what we declined to do in Bossier Parish I: to blur the distinction between § 2 and § 5 by “shift[ing] the focus of § 5 from nonretrogression to vote dilution, and . . . chang[ing] the § 5 benchmark from a jurisdiction’s existing plan to a hypothetical, undiluted plan.” 520 U. S., at 480. Such a reading would also exacerbate the “substantial” federalism costs that the preclearance procedure already exacts, Lopez v.Monterey County, 525 U. S. 266, 282 (1999), perhaps to the extent of raising concerns about § 5’s constitutionality, see Miller, supra, at 926-927. Most importantly, however, in light of our holding in Beer, appellants’ reading finds no support in the language of § 5
I’ll file this till I return to work on social cost.