By: Syed Umar Farooq

Since 1965, the Voting Rights Act (VRA) has been instrumental in enfranchising minorities in the post-Civil Right era. The law contained several sections that are aimed at protecting voting rights from existing threats. Section 2 of the law outlawed such barriers to voting as poll taxes and literacy tests, as well as legislation that would dilute the votes of minorities. Yet, perhaps the most effective and controversial part of the law was Section 5. This allowed for a process known as “preclearance”, in which jurisdictions with an egregious history of efforts to restrict voting would be required to obtain federal approval for new voting laws. The move was a radical shift in voting policies; instead of simply responding to laws after the fact through Department of Justice lawsuits, the federal government could actually prohibit discriminatory legislation prior to its implementation.

This measure was not without controversy. In the decades since, the VRA went through an extensive history of court proceedings, each challenging the validity of the law, with many focusing on the legality of preclearance. Still, the VRA emerged unscathed each time, building legal precedent enshrining the legality of its components.

In the summer of 2013, the Supreme Court, in the case of Shelby County v. Holder^[1], reversed that legal precedent. The court did not rule against the measures in Section 2, nor the process of preclearance in Section 5. Rather, it argued that the coverage formula, used to determine which jurisdictions required preclearance, was outdated and inaccurate, and thus, was unfair to the jurisdictions upon which it was imposed. This means that although preclearance is still possible, Congress must first pass a new coverage formula, which is unlikely to happen anytime soon.

The Court’s ruling offers three arguments for the unconstitutionality of the coverage formula: the VRA was no longer necessary in light of current conditions, preclearance treated certain States unfairly, and the coverage formula did not accurately reflect patterns of discrimination. While all of these arguments appear strong on face value, they lack sufficient legal and empirical backing.

No Longer Needed

The first argument for the unconstitutionality of the VRA relates to current voting conditions. Chief Justice John Roberts writes in the majority opinion, “The conditions that originally justified these measures no longer characterize voting in the covered jurisdictions.”^[2] The conditions to which the Chief Justice refers are the disparities in voter registration and turnout between African Americans and whites in the mid-1960s. He correctly asserts that those conditions have changed in areas covered under preclearance. Voter registration data from the most recent congressional reauthorization of the VRA shows the racial gap that once existed between blacks and whites has been eliminated in two of the six States to which preclearance originally applied.^[3]

But do the changes in voter registration and turnout indicate that the VRA is no longer needed? It is true the VRA has reduced voter discrimination in the South. As statistician Nate Silver notes, “The fact that black turnout rates are now roughly as high in States covered by Section 5 might be taken as evidence that the VRA has been effective. ”^[4] Even Chief Justice Roberts conceded in the majority opinion that the near equal turnout rates between whites and blacks are “largely because of the VRA.”^[5] Current data informs the majority opinio1n that preclearance is no longer necessary. Yet, the removal of the most effective portion of the VRA due to its effectiveness is counterintuitive. As Justice Ginsburg, who authored the dissenting opinion, famously explained, “Throwing out preclearance when it has worked and is continuing to work to stop discriminatory changes is like throwing away your umbrella in a rainstorm because you are not getting wet.”^[6] Removing preclearance until Congress can agree on a new formula only opens the doors to additional discriminatory procedures.

The true test of whether the VRA is needed is not whether there is parity in voter turnout, but rather, if its revocation would result in increased efforts to suppress minority votes. Research recently published by the American Political Science Association (APSA) substantiates those concerns. The study found that “[w]here African-Americans and poor people vote more frequently, and there are larger numbers of non-citizens, restrictive access legislation is more likely to be proposed.”^[7] High levels of minority voter turnout in areas covered by the preclearance formula are linked to restrictive voting legislation, the very same legislation which the VRA protects against. The idea that high minority voter turnout rates indicate a lack of necessity for the VRA is therefore invalid.

Equal Sovereignty of the States

The second major argument for the unconstitutionality of the VRA revolves around the doctrine of equal sovereignty. In the majority opinion, Chief Justice Roberts notes the VRA marked a “[d]ramatic departure from the principle that all States enjoy equal sovereignty.”^[8] Equal sovereignty is the idea that laws should not apply to States in a disproportionate manner, and that each State ought to be treated equally. Chief Justice Roberts explains the precedent behind equal sovereignty, writing, “Over a hundred years ago, this Court explained that our Nation ‘was and is a union of States, equal in power, dignity and authority.’ Coyle v. Smith, 221 U. S. 559, 567 (1911). Indeed, ‘the constitutional equality of the States is essential to the harmonious operation of the scheme upon which the Republic was organized.’”^[9] Roberts’ interpretation is quite controversial. As Zachary Price, a fellow at the Constitutional Law Center at Stanford Law School notes, “The suggestion that federal legislation must treat States equally is a chimera, without support in constitutional text, history, or precedent.”^[10] Chief Justice Roberts’s interpretation of past cases is inconsistent with actual precedent. In South Carolina v. Katzenbach, the Court ruled the doctrine of equal sovereignty applied “only to the terms [383 U.S. 301, 329] upon which States are admitted to the Union, and not to the remedies for local evils which have subsequently appeared.”^[11]

The main case the Court uses as precedent in Shelby County is a case from four years prior, Northwest Austin Municipal District Number One v. Holder. The case was brought by a municipal district in northern Texas seeking an exemption from the preclearance of the VRA and also arguing that preclearance was unconstitutional. The Court ruled Northwest Austin was eligible to apply for preclearance exemption, but avoided the question of the constitutionality of preclearance. Instead, the Court noted, “The [Voting Rights] Act also differentiates between the States, despite our historic tradition that all the States enjoy ‘equal sovereignty.’ – a departure from the fundamental principle of equal sovereignty requires a showing that a statute’s disparate geographic coverage is sufficiently related to the problem that it targets.”^[12] In Shelby County, the Court relies heavily on Northwest Austin’s two assertions that the VRA’s differing treatments of States conflicts with the doctrine of equal sovereignty, and that departure from equal sovereignty requires a particular level of coverage formula accuracy. Thus, it is also necessary to examine the evidence provided in Northwest Austin to support these two claims.

Beginning with differentiating treatment of the States, the Court cites United States v. Louisiana, Lessee of Pollard v. Hagan, and Texas v. White to support equal sovereignty in Northwest Austin. Yet, none of these cases substantiate the equal sovereignty doctrine. The first two focus on the rights of new States, similar to Coyle v. Smith. In the third case, Texas v. White, the Supreme Court ruled bonds Texas sold during the Civil War were invalid, as States cannot unilaterally secede from the Union.^[13] But none of these cases substantiate the argument that federal legislation must treat States equally. The case law the Court relies on in Northwest Austin, and consequently Shelby County, does not support the Court’s interpretation of equal sovereignty.

Chief Justice Roberts then asserts that Congress requires a higher level of scrutiny for legislation that abrogates equal sovereignty.^[14] However, that practice does not hold true in lawmaking. Generally, Congress has to have a rational basis for enacting legislation. Strict scrutiny is only applied if laws place burdens on fundamental rights,^[15] or distinguish between individuals based on suspect classifications, such as race, sex, religion, etc.^[16] No standard for scrutiny exists based on disparate treatment of the States. Legislation can, and often does, treat States differently, and such legislation is not subject to additional scrutiny. Price, writing again in the New York Law Review, elucidates this with two examples. The first is congressional earmarks which, by their very nature, allocate funds to only particular States or localities, and consequently do not treat all States equally. Price’s second, and more applicable example, applies to federal legislation affecting States differently.^[17] The Clean Air Act, for example, allows different emission standards for the state of California as compared to the rest of the country.^[18] Additionally, when federal legislation designated the Yucca Mountains to be a nuclear waste disposal site, the state of Nevada claimed the legislation was unconstitutional under the aforementioned “equal footing” doctrine. The U.S. Court of Appeals for the Ninth Circuit ruled that equal sovereignty did not restrict congressional power, and only applied to instances where Congress did not retain any power.^[19] As the Court noted in South Carolina v. Katzenbach, preclearance falls under congressional power to enforce the 15th Amendment.^[20] Legislative precedent and case law do not support The Supreme Court’s interpretation of equal sovereignty.

The Court’s heavy reliance on Northwest Austin despite the case’s brief mention of equal sovereignty was incredibly controversial. While passing statements from prior cases can gain larger ground later on, some felt Chief Justice Roberts (who authored the opinion for both Shelby County and Northwest Austin) invented the doctrine for political purposes.^[21] If true, Shelby County would be one of the most blatant examples of judicial activism in the Court’s history. Yet, even if those accusations are untrue, the Court’s interpretation of equal sovereignty doctrine does not appear to be grounded in any relevant precedent or history. The idea that the VRA violated the doctrine of equal sovereignty is inaccurate at best, and does not remotely warrant the abolition of the VRA’s formula.

Federalism and The Coverage Formula

The Court’s final argument for the VRA’s unconstitutionality addresses the role of the federal government and the accuracy of the VRA’s coverage formula. The majority argues, “The Voting Rights Act…requires States to beseech the Federal Government for permission to implement laws that they would otherwise have the right to enact and execute on their own.”^[22] The Court further argues that such a measure was justified in the 1960s as an “extraordinary measure to address an extraordinary problem”^[23] but is no longer applicable due to the dramatic reduction in racially discriminatory election laws.

Preclearance is not a violation of the rights of States, nor is it unnecessary today. While the Tenth Amendment gives States the power to regulate elections, the Fifteenth Amendment protects the right to vote, and gives Congress the power to enforce this through appropriate legislation. Shelby County reversed that precedent because discrimination was no longer “‘pervasive,’ ‘flagrant, ‘widespread,’ and ‘rampant.’”^[24] Yet, second-generation barriers, which allow access to the ballot box but dilute minority votes through measures such as racial gerrymandering, now pose a threat to minority voting rights. Since 1982, more than 2,400 proposed voting changes in areas covered by preclearance have been blocked.^[25] After requests for additional information by the Department of Justice, more than 800 jurisdictions either withdrew or modified their proposal. Voting discrimination still exists, and preclearance remains an appropriate way to address the problem.

The Court further criticizes the preclearance process because the formula no longer reflects modern patterns of racial discrimination. Jurisdictions were originally subject to preclearance if two conditions were met. First, the subdivision in question had to have used voting tests or devices on or after November 1st, 1964. Second, the voter registration rate of eligible voters had to be below 50% in that jurisdiction. Outside of expanding the definitions of voting tests and devices, the VRA’s coverage formula has remained identical to the one originally passed. This would, on face, substantiate Chief Justice Roberts’s claim that the formula is inaccurate. Still, the design of the coverage formula is meant to circumvent those concerns. The formula is reverse-engineered, meaning Congress chose jurisdictions with evidence of voter discrimination, and then determined the criteria to cover those jurisdictions. The Court claims this approach is invalid because the formula does not reflect current conditions. This charge is inaccurate for two reasons.

Firstly, the preclearance formula reflects current patterns of discrimination because it targets the most egregious offenders. Evidence indicates covered jurisdictions continue to propose discriminatory voting procedures at disproportionate rates. According to a study from the Voting Rights Initiative at the University of Michigan Law School, though covered jurisdictions comprise less than 25% of the U.S. population, they accounted for 56% of successful Justice Department lawsuits against discriminatory voting procedures.^[26] The United States District Court for the District of Columbia’s ruling in Shelby County affirmed the legality of reverse-engineering because modern evidence indicated covered districts still implemented discriminatory voting practices.^[27] Had the Court presented evidence to suggest preclearance was inaccurately classifying jurisdictions, or had exceeded a bright-line of inaccuracy, the claims against the coverage formula’s accuracy would be more complex. But without any data to the contrary, the claims against the coverage formula’s accuracy appear unfounded.

Were it the case, though, that the original coverage formula were inaccurate, the VRA includes built-in mechanisms to address possible formula inaccuracies. Section 4(a) allows jurisdictions to be “bailed out,” or to be exempted from preclearance. Section 3 contains a complementary “bail in” provision to allow courts to impose preclearance in jurisdictions which violate the Fourteenth or Fifteenth Amendment. This indicates not only that the reverse-engineering approach of the VRA accurately reflects modern discrimination patterns, but also that the VRA has sections to ensure jurisdictions are not treated unjustly.

Implications

The legal reasoning behind Shelby County should bring pause to legal scholars. From an unclear understanding of the doctrine of equal sovereignty of the States to a questionable approach to the VRA’s formula, the logic of the Court has puzzled and frustrated all but a few legal scholars.

If the majority opinion relies on substandard legal reasoning, what course of action should the Court have taken instead? The dissenting opinion, written by Justice Ginsburg and joined by Justices Breyer, Sotomayor, and Kagan, offers one option. Ginsburg writes that the conditions in covered jurisdictions have improved, but not to the extent that the VRA is no longer necessary. She identifies the persistence of second-generation voting barriers, and the need to prevent their enactment, and she argues Congress has the full ability to enforce the VRA through the 15th Amendment.^[28] These arguments better follow legal precedent and align with empirical evidence, but unfortunately did not garner enough support among the Justices to serve as the majority opinion.

Given the current congressional gridlock, it seems unlikely Congress will pass an updated coverage formula anytime soon. The VRA’s other sections offer possible tools to fight voter discrimination, but none with the efficacy of Section 5.^[29] Until either the Court reverses Shelby County, or Congress passes an updated coverage formula, voting rights in America are at risk of being undermined by discriminatory legislation once again.

 

^[1]Shelby Cnty., Ala. v. Holder, 133 S.Ct. 2612 (2013).

^[2]Shelby Cnty., 133 S.Ct. at 2618.

^[3]LoGiurato, Brett. 2013. ‘Here’s The Chart Chief Justice Roberts Used To Prove That A Key Provision Of The Voting Rights Act Is Outdated’. Business Insider. http://www.businessinsider.com/voting-rights-act-chart-proof-outdated-john-roberts-vra-struck-down-section-4-2013-6.

^[14Silver, Nate. 2013. ‘In Supreme Court Debate On Voting Rights Act, A Dubious Use Of Statistics’.Fivethirtyeight. http://fivethirtyeight.blogs.nytimes.com/2013/03/07/in-supreme-court-debate-on-voting-rights-act-a-dubious-use-of-statistics/?_php=true&_type=blogs&_r=0.

^[5]Shelby Cnty., 133 S.Ct. at 2617

^[6]Shelby Cnty.,133 S.Ct. at 2650

^[7]Keith G. Bentele and Erin E. O’Brien (2013). Jim Crow 2.0? Why States Consider and Adopt Restrictive Voter Access Policies . Perspectives on Politics, 11, pp 1088-1116. doi:10.1017/S1537592713002843.

^[8]Shelby Cnty., 133 S.Ct. at 2618.

^[9]Shelby Cnty., 133 S.Ct. at 2623.

^[10]Price, NAMUDNO’s Non-Existent Principle of State Equality, 87 NYU L Rev 24, 24 (2013).

^[11]South Carolina v. Katzenbach, 383 U.S. 301, 313 (1966).

^[12]Nw. Austin Mun. Util. Dist. No. One v. Holder (NAMUDNO), 557 U.S. 193 at 202 (2009).

^[13]Texas v. White, 74 US 700, 725–26 (1869).

^[14]Shelby Cnty., 133 S.Ct. at 2616

^[15]Price, NAMUDNO’s Non-Existent Principle of State Equality, 87 NYU L Rev 24, 26 (2013).

^[16]See Strict Scrutiny, Cornell Legal Information Institute (Cornell University), online at https://www.law.cornell.edu/wex/strict_scrutiny

^[17]Price, NAMUDNO’s Non-Existent Principle of State Equality, 87 NYU L Rev 24, 28-29 (2013).

^[18]Environmental Protection Agency, California State Motor Vehicle Pollution Control Standards, 51 Fed Reg 32744, 32784 (2009).

^[19]Nevada v. Watkins , 914 F.2d 1545, 1555, (9th Cir. 1990).

^[20]South Carolina v. Katzenbach, 383 U.S. 301 (1966)

^[21]See Richard Posner, Supreme Court 2013: The Year in Review, Slate (The Slate Group, June 26, 2013), online at http://www.slate.com/articles/news_and_politics/the_breakfast_table/features/2013/supreme_court_2013/the_supreme_court_and_the_voting_rights_act_striking_down_the_law_is_all.html

^[22]Shelby Cnty., 133 S.Ct. at 2624

^[23]Shelby Cnty., 133 S.Ct. at 2619

^[24]Shelby Cnty., 133 S.Ct. at 2631

^[25]From Selma to Shelby County: Working Together to Restore the Protections of the Voting Rights Act, Hearing before the U.S. Senate Committee on the Judiciary, 113th Cong, 1 Sess 144 (2013) (American Civil Liberties Union (ACLU), Laura W. Murphy, Director and Deborah J. Vagins, Senior Legislative Counsel) (“Post-Shelby County Congressional Hearing”)

^[26]See Ellen Katz, with Margaret Aisenbrey, Anna Baldwin, Emma Cheuse, & Anna Weisbrodt, Documenting Discrimination In Voting: Judicial Findings Under Section 2 of the Voting Rights Act Since 1982, Final Report of the Voting Rights Initiative, University of Michigan Law School, 39 Mich. J.L. Reform 643 (2006) [“VRI Study”]; VRI Database Master List (2006), available at http://sitemaker.umich.edu/votingrights/files/master list.xls [“VRI database”]

^[27]Shelby County v. Holder, 679 F.3d 848 (D.C. Cir. 2012), cert granted, No. 12-96.

^[28]Shelby Cnty., 133 S.Ct. at 2633

^[29]See Nicholas Stephanopoulos, The Future of the Voting Rights Act, Slate (The Slate Group, October 23, 2013), online at
http://www.slate.com/articles/news_and_politics/jurisprudence/2013/10/section_2_of_the_voting_rights_act_is_more_effective_than_expected_new_research.html