Last month, the Supreme Court heard oral arguments in three consolidated cases, Perry v. Perez, Perry v. Davis, and Perry v. Perez, all having to do with state and federal elections in Texas. The cases are complicated for a number of reasons, and they even seemed to give the usually confident justices some trouble, as Lyle Denniston’s report on the oral arguments for SCOTUSblog indicates. The situation is complicated in terms of both procedural and substantive law, as there are challenges to Texas’ policies on different grounds in different courts, with a number of different entities all advancing their own remedial proposals, all with a pressing deadline that requires some solution in time for state primaries ahead of this fall’s general election. At the root of these cases, though, are fundamental questions about the Voting Rights Act of 1965, a central piece of the civil rights legislation of the 1960s that already has been facing some fundamental questions in the last few years. In 2006, after much debate, Congress voted to extend the expiring legislation for another twenty-five years, and in 2009, the Supreme Court avoided ruling on the constitutionality of a key provision of the Act while expressing doubts about its ongoing constitutionality. See Northwest Austin Mun. Util. Dist. No. 1 v. Holder, 557 U.S. ___ (2009).
Voting Rights Act litigation usually focuses on one or both of two sections of the Act. Section 2 contains the Act’s general rule against voting discrimination. Section 5, the more controversial of the two, requires certain identified jurisdictions, typically in the South, to seek approval from the Attorney General before making changes to election procedures.
In an excellent and extensive piece that followed the Northwest Austin decision, Joel Heller outlined the Voting Rights Act’s legal landscape and argued that the interpretive tools and sources of authority upon which the Court relies in its Voting Rights Act (“VRA”) cases “present historical, ideological, and statistical perspectives on the question of the continued necessity of § 5, with an especial focus on the South. They tell divergent stories about history, race and voting.” Joel Heller, Faulkner’s Voting Rights Act: The Sound and Fury of Section Five, 3 (2011), avalilable here. What’s missing, according to Heller, is “the region’s literature. Yet many of these works, in particular the novels of William Faulkner, address some of the same concerns as the VRA. Specifically, a prominent theme in Faulkner’s work is the power of memory in the South and the ongoing influence of the past on contemporary actions and attitudes.” Id.
As a legal matter, Heller argues that it’s appropriate for courts to consider literature:
Literature can serve as a probative tool for understanding and evaluating policy because it is often, like law, a response to social problems. Especially with a measure like § 5 that touches on such fundamental matters in American society as racial equality and voting rights, Congress and the courts should make every effort and consult every relevant source in order to understand fully the issues at stake. As a chronicler of the pre-VRA South that Congress was responding to when it enacted and reauthorized § 5, Faulkner could prove a valuable resource in this undertaking. Ignoring his examinations of the role of memory in this context risks losing out on the insights of a uniquely astute observer of Southern culture and psychology.
Id. at 4.
The ongoing question in VRA § 5 litigation is whether the prophylactic measure still is needed, and this inquiry requires a court to determine what evil remains present in the governed jurisdictions and whether that evil necessitates the continued application of § 5. Heller continues:
Just as § 5 is a solution uniquely concerned with the past, Faulkner’s novels show that the lingering power of the past is also part of the problem. Rather than punishing the sons for the sins of the fathers, § 5 can be seen as targeting the independent concern of a past-haunted society and the uncertain results which the unchecked power of memory can produce in the present. . . . By focusing on the extent to which “things have changed in the South,” the Court ignored the possibility that, for some, “the past is never dead, it is not even past.”
Id. at 4-5. In short, Heller has identified a theme common to the creation, implementation, and judicial interpretation of § 5 and Faulkner’s novels: “the question of how the past and memories of it continue to shape current attitudes and actions.” Id. at 28.
Heller’s article is thorough and thoughtful, and after thinking about it for four or five months, I still find little to add to it or comment upon. As a matter of mere judicial mechanics, strict jurists may reject the notion that judges should consider much beyond the language of the statutes and rules at issue in the case, but they would completely miss the point of the article. Moreover, where courts in VRA § 5 cases already routinely are considering things beyond the narrow scope of legal authority, judges’ abilities to define the bounds of permissible authority for consideration are diminished. In this vein, Heller has made his case for the necessity of the inclusion and consideration of material like Faulkner’s works, which speak to the very inquiry in which the courts in these cases are engaging in both a historical and thematic manner.
The full text of the article is available for download here.