{"id":11319,"date":"2018-10-31T19:15:38","date_gmt":"2018-10-31T23:15:38","guid":{"rendered":"http:\/\/journals.law.harvard.edu\/crcl\/?p=11319"},"modified":"2018-11-01T17:49:34","modified_gmt":"2018-11-01T21:49:34","slug":"equal-sovereignty-five-years-after-shelby-county","status":"publish","type":"post","link":"https:\/\/journals.law.harvard.edu\/crcl\/equal-sovereignty-five-years-after-shelby-county\/","title":{"rendered":"Equal Sovereignty Five Years After Shelby County"},"content":{"rendered":"

In June of 2013, Shelby County, Ala. v. Holder <\/em><\/a>held Section 4(b)<\/a> of the Voting Rights Act of 1965 to be unconstitutional. Section 4(b) outlined the circumstances under which a state would be subject to preclearance under Section 4(a) of the Act. As reauthorized in 2006, Section 4(b) subjected all states to preclearance who had used any sort of test as a precondition for voting in the mid 60\u2019s and 70\u2019s, or who had less than 50% voter registration or turnout during those same years. Those states then had to \u201cpreclear\u201d any change to their electoral system with either the Department of Justice or the United States District Court for the District of Columbia. Either could reject the changes if they would cause any \u201cretrogression\u201d<\/a> in the political opportunity of minority groups.<\/p>\n

The Shelby County<\/em> Court rooted its decision in a concern for the \u201cequal sovereignty\u201d of the states, explaining that when a federal law infringes on a power normally held by the states\u2014even if that infringement is rightful\u2014any application of the law that is geographically uneven is an extraordinary occurrence. The method for determining which states are unevenly impacted, and the extent of that impact, must then be sufficiently related to the law\u2019s purpose. In the case of Section 4(b), the established standards for determining preclearance were drawn from voting rights violations in the 60\u2019s and 70\u2019s, and had no rational relationship to today\u2019s less overt, \u201csecond generation<\/a>\u201d vote suppression strategies.<\/p>\n

This extraordinary invocation of equal sovereignty created a new doctrine almost<\/a> entirely<\/a> from thin<\/a> air. Although a few Supreme Court cases contained the term, they, and the case<\/a> on which the Court rested its decision, dealt primarily with the admission of states into the union, rather than the uneven application of federal law. Thanks to this novelty, and the Court\u2019s failure to articulate the doctrine\u2019s parameters, it was not clear what ramifications the emerging concept of equal sovereignty would have.<\/p>\n

Harvard Professor Leah M. Litman posited, in a 2016 article<\/a>, that the Shelby County<\/em>\u00a0conception of equal sovereignty is only triggered by federal action that lessens the dignity of a single state or a limited number of states. She theorizes that only the sort of morally-blameworthy state action that is constrained by the Civil War amendments carries the stigma necessary to raise equal sovereignty concerns. States are accustomed to having laws preempted by federal regulation, and there is rarely moral condemnation involved when policy goals conflict, but the Civil War amendments arguably exist to remedy immoral\u2014not just unwise\u2014state action. Adjudicating a lone state under those amendments could be seen as labelling that state as a singularly racist actor, rather than a cog in a racist system. This preoccupation with the stigma that the Civil War amendments might inflict is reflective of the Court\u2019s movement away from an<\/a> anti-subordination-oriented<\/a> view<\/a> of the amendments toward one that is focused on anti-classification goals.<\/p>\n

To those who take an anti-classification approach, the 14th<\/sup> and 15th<\/sup> Amendments do not exist to unmake racial hierarchy, but simply to prevent the indignity of racial classification and create a “color blind” world. That concern with \u2018indignity\u2019 forms the basis for Professor Litman\u2019s hypothesis, and if she is correct, only humiliating moral judgments\u2014like the appellation \u2018racist\u2019\u2014trigger the equal sovereignty doctrine. Since few of the conflicts between states and the federal government strike at a state\u2019s dignity quite the way that accusations of racism do, the equal sovereignty doctrine serves primarily as a check on the 14th<\/sup> and 15th<\/sup> Amendments. Most particularly, it runs up against the anti-subordinative power of those amendments to reach, through legislation, those actions that are facially race-neutral, but which have disparate racial impacts. Facially race-neutral laws or policies typically provide insufficient evidence of a state’s racist intentions to justify the ‘extreme’ stigma that might accompany application of the Civil War amendments.<\/p>\n

Five years after the fact, the Supreme Court has yet to address the equal sovereignty doctrine further, but parties\u2019 attempts to litigate the doctrine and lower courts\u2019 treatment of those cases are enlightening. Since it\u2019s an election year and Shelby County\u2019s<\/em> quinquennial anniversary, it seems like a good time to take a look at what Chief Justice Robert\u2019s equal sovereignty doctrine has wrought.<\/p>\n

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Medical Marijuana<\/strong><\/p>\n

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The vast majority of claims that have been advanced under the doctrine of equal sovereignty were brought by individuals trying to escape liability for federal marijuana charges. From 2013-2016, defendants challenged the federal government\u2019s disparate enforcement of marijuana laws under the Cole Memorandum<\/a> (a memo urging US Attorneys not to pursue charges against those arrested for owning or selling medical marijuana in states that legalized the practice) as a violation of the equal sovereignty of the states. Specifically, they argue that because marijuana is categorized as a schedule 1 drug, but US Attorneys were discouraged from charging crimes that involve the drug in states that had de-criminalized marijuana in some capacity, there was no longer a rational relationship between the purpose of the law and the geographic region in which It was enforced. District courts avoided this recurring defense in a few ways:<\/p>\n