Outside the Beltway

Supreme Court To Review Section Five Of The Voting Rights Act

The Supreme Court has agreed to take on another big case.

Doug Mataconis · Saturday, November 10, 2012 · 17 comments

Yesterday, the Supreme Court announced that it had agreed to hear an appeal that touches at the very heart of Section 5 of The Voting Rights Act, the legal provision that permits the Justice Department to continue to exercise enhanced review authority over certain parts of the country deemed to have had a history of voter discrimination:

WASHINGTON — The Supreme Court announced on Friday that it would take a fresh look at the constitutionality of the Voting Rights Act of 1965, one of the signature legacies of the civil rights movement.

Three years ago, the court signaled that part of the law may no longer be needed, and the law’s challengers said the re-election of the nation’s first black president is proof that the nation has moved beyond the racial divisions that gave rise to efforts to protect the integrity of elections in the South.

The law “is stuck in a Jim Crow-era time warp,” said Edward P. Blum, director of the Project on Fair Representation, a small legal foundation that helped organize the suit.

Civil rights leaders, on the other hand, pointed to the role the law played in the recent election, with courts relying on it to block voter identification requirements and cutbacks on early voting.

“In the midst of the recent assault on voter access, the Voting Rights Act is playing a pivotal role beating back discriminatory voting measures,” said Debo P. Adegbile, the acting president of the NAACP Legal Defense and Educational Fund.

The Supreme Court’s ruling on the law, expected by June, could reshape how elections are conducted.

The case concerns Section 5 of the law, which requires many state and local governments, mostly in the South, to obtain permission, or “preclearance,” from the Justice Department or a federal court before making changes that affect voting. Critics of the law call the preclearance requirement a unique federal intrusion on state sovereignty and a badge of shame for the affected jurisdictions that is no longer justified.

The preclearance requirement, originally set to expire in five years, was upheld by the Supreme Court in 1966 as a rational response to the often flagrantly lawless conduct of some Southern officials then.

Congress has repeatedly extended the requirement: for 5 years in 1970, 7 years in 1975, and 25 years in 1982. Congress renewed the act in 2006 after holding extensive hearings on the persistence of racial discrimination at the polls, again extending the preclearance requirement for 25 years.

But it made no changes to the list of jurisdictions covered by Section 5, relying instead on a formula based on historical practices and voting data from elections held decades ago. It applies to nine states — Alabama, Alaska, Arizona, Georgia, Louisiana, Mississippi, South Carolina, Texas and Virginia — and to scores of counties and municipalities in other states.

Should the court rule that Congress was not entitled to rely on outdated data to decide which jurisdictions should be covered, lawmakers could in theory go back to the drawing board and re-enact the law using fresher information. In practice, given the political realities, a decision striking down the coverage formula would probably amount to the end of Section 5.

In May, a divided three-judge panel of the United States Court of Appeals for the District of Columbia rejected a challenge to the law filed by Shelby County, Ala. Judge David S. Tatel, writing for the majority, acknowledged that “the extraordinary federalism costs imposed by Section 5 raise substantial constitutional concerns,” and he added that the record compiled by Congress to justify the law’s renewal was “by no means unambiguous.”

“But Congress drew reasonable conclusions from the extensive evidence it gathered,” he went on. The constitutional amendments ratified after the Civil War, he said, “entrust Congress with ensuring that the right to vote — surely among the most important guarantees of political liberty in the Constitution — is not abridged on account of race. In this context, we owe much deference to the considered judgment of the people’s elected representatives.”

The dissenting member of the panel, Judge Stephen F. Williams, surveyed recent evidence concerning registration and turnout, the election of black officials, the use of federal election observers and suits under another part of the law.

Some of that evidence, he said, “suggests that the coverage formula completely lacks any rational connection to current levels of voter discrimination,” while other evidence indicates that the formula, “though not completely perverse, is a remarkably bad fit with Congress’s concerns.”

“Given the drastic remedy imposed on covered jurisdictions by Section 5,” he wrote, “I do not believe that such equivocal evidence can sustain the scheme.”

The Supreme Court has already expressed some doubts about the Constitutionality of Section 5 of the VRA under its current configuration. Back in 2009, the Court heard the case Northwest Austin Municipal Utility District No. 1 v. Holder in which the Plaintiff Utility District argued that Section 5 was unconstitutional largely because it was based upon a list of jurisdictions that had been drawn up in 1965 and only tangentially reviewed by Congress since then with little regard to whether there had been changed circumstances in these areas that would have required the classifications to be changed. Justice Thomas was the sole dissenter in a case where the Court as a whole sidestepped the Constitutional issue by noting that the District could apply for exemption from Section 5’s pre-clearance requirements. Even in that opinion [PDF], though, the Court’s opinion notes that Section 5 raises serious Federalism concerns, and that the fact that Section 5’s standards are based on times nearly 50 years in the past raises serious questions about their present applicability:

These federalism concerns are underscored by the argument that the preclearance requirements in one State  would be unconstitutional in another. See Georgia v. Ashcroft, 539 U. S. 461, 491-492 (2003) (KENNEDY, J.,  concurring) (“Race cannot be the predominant factor in redistricting under our decision in Miller v. Johnson, 515 U. S. 900 (1995). Yet considerations of race that would  doom a redistricting plan under the Fourteenth Amendment or §2 seem to be what save it under §5”). Additional constitutional concerns are raised in saying that this tension between §§2 and 5 must persist in covered jurisdictions and not elsewhere.

The evil that §5 is meant to address may no longer be  concentrated in the jurisdictions singled out for preclearance. The statute’s coverage formula is based on data that is now more than 35 years old, and there is considerable evidence that it fails to account for current political conditions. For example, the racial gap in voter registration  and turnout is lower in the States originally covered by §5 than it is nationwide. E. Blum & L. Campbell, Assessment of Voting Rights Progress in Jurisdictions Covered Under Section Five of the Voting Rights Act 3-6 (American Enterprise Institute, 2006). Congress heard warnings from supporters of extending §5 that the evidence in the record did not address “systematic differences between the covered and the non-covered areas of the United States[,] . . . and, in fact, the evidence that is in the record suggests that there is more similarity than difference.” The Continuing Need for Section 5 Pre-Clearance: Hearing before the Senate Committee on the Judiciary, 109th Cong., 2d Sess., 10 (2006) (statement of Richard H. Pildes); see also Persily, The Promise and Pitfalls of the New Voting RightsAct, 117 Yale L. J. 174, 208 (2007) (“The most one can say in defense of the [coverage] formula is that it is the best of  the politically feasible alternatives or that changing the formula would . . . disrupt settled expectations”).

(…)

More than 40 years ago, this Court concluded that “exceptional conditions” prevailing in certain parts of the country justified extraordinary legislation otherwise unfamiliar to our federal system. In part due to the success of that legislation, we are now a very different Nation. Whether conditions continue to justify such legislation is a difficult constitutional question we do not answer today.

Justice Thomas went further:

The extensive pattern of discrimination that led the Court to previously uphold §5 as enforcing the Fifteenth Amendment no longer exists. Covered jurisdictions are not now engaged in a systematic campaign to deny black citizens access to the ballot through intimidation and violence. And the days of “grandfather clauses, property qualifications, ‘good character’ tests, and the requirement that registrants ‘understand’ or ‘interpret’ certain matter,” Katzenbach, 383 U. S., at 311, are gone. There is thus currently no concerted effort in these jurisdictions to engage in the “unremitting and ingenious defiance of the Constitution,” id., at 309, that served as the constitutional basis for upholding the “uncommon exercise of congres­sional power” embodied in §5, id., at 334. The lack of sufficient evidence that the covered jurisdic­tions currently engage in the type of discrimination that underlay the enactment of §5 undermines any basis for retaining it. Punishment for long past sins is not a legiti­mate basis for imposing a forward-looking preventative measure that has already served its purpose. Those sup­porting §5’s reenactment argue that without it these jurisdictions would return to the racially discriminatorypractices of 30 and 40 years ago. But there is no evidence that public officials stand ready, if given the chance, to again engage in concerted acts of violence, terror, and subterfuge in order to keep minorities from voting. With­ out such evidence, the charge can only be premised on outdated assumptions about racial attitudes in the covered jurisdictions. Admitting that a prophylactic law as broad as §5 is no longer constitutionally justified based on cur­rent evidence of discrimination is not a sign of defeat. It is an acknowledgment of victory.

The question ever since has been whether there are four more votes on the Court to strike at the heart of Section 5. If Adam Serwer is any indication, the left certainly seems to think so: 

The fact that the court is taking up a Section 5 case again so soon suggests strongly that the intent is to strike down part or all of the Voting Rights Act.

Although Section 5 survived in 2009, conservative justices appeared to believe that the law was discriminatory—against Southern white people. “Is it your position that today Southerners are more likely to discriminate than Northerners?” Chief Justice John Roberts demanded of the attorney defending the Voting Rights Act at the time. Despite the 8-1 vote, the 2009 decision was widely seen as leaving Section 5 hanging by a thread. The justices hinted very strongly that Congress, which had just reauthorized the Voting Rights Act in its entirety in 2006, should change the law soon or risk it being declared unconstitutional next time around.

Now it looks like the conservatives on the court will get their chance. A cursory review of recent Republican shenanigans with voting rules should put the notion that the VRA is obsolete entirely to bed.

Serwer goes way over the top here. Even if the Court rules in favor of Shelby County in this case later this year, that doesn’t mean that the Voting Rights Act is “obsolete.” For one thing, the other enforcement provisions in the law remain in full force in effect. Their Constitutionality was upheld in 1965 and has never been seriously challenged, even the majority in the Utility District case, as well as Justice Thomas in his Dissent, accept the overall Constitutionality of the Voting Rights Act. The question that the Court will be dealing with is whether the re authorization of Section 5 for another 25 years in 2006, based at it is on data that was 40 years old at the time, was a proper exercise of Congressional authority under the 15th Amendment. Even if the Court were to strike the re-authorization down, Congress would still be able to go back and re-authorize a new version of the law based on newer, more current and more relevant data if it wanted to. So, the doom and gloom that Serwer is preaching here is more than just a bit exaggerated.

At the very least, the Court’s decision to take this case makes the current term even more important than it had already been. The Justices have already heard argument regarding the University of Texas’s race-based admissions program in a case that many view as a potential blow to the use of affirmative action in the public arena, they are poised to consider whether to take cases dealing with the hot button issue of same-sex marriage in a conference scheduled for later this month, and now they are taking on the Federal Government’s most potent weapon under the Voting Rights Act. It’s going to be an interesting term to say the least.