Judicial Jiu-Jitsu and the Post-Shelby Landscape for Voting Rights

By Connor Kridle, Chapman University ’18

 

 

Introduction

Much ink has been spilled over the struggle for voting rights in America.[1] This struggle was, and remains, long and hard fought – from the Reconstruction Amendments[2] and the largely failed Civil Rights Legislation[3] that followed in the wake of the Civil War, to the Civil Rights Act of 1964[4] and the Voting Rights Act of the following year.[5] After 1965, however, the future looked brighter; voting rights were secured through the passage of the VRA, and the legislation was given teeth by the subsequent Voting Rights Cases.[6] The most controversial aspects of the VRA, illustrated early in South Carolina v. Katzenbach, are section four subsections (a)-(d) and section five. These provisions, also known as the “coverage formula” and “preclearance” provisions were the provisions challenged most early and most often by critics of the legislation.[7] Section four subsections (a)-(d) established a “coverage formula,” by which Congress could selectively monitor and screen the election laws of several specific states and areas that had histories of preventing minorities from voting or registering to vote.[8] Section five was the enforcement conjunctive to the coverage formula.[9] Its operation allowed for the Attorney General, or a special three judge panel in the U.S. District Court for Washington D.C., to review any election law changes in the covered jurisdictions before their enactment in order to prevent discriminatory laws from being implemented.[10] The VRA was then amended, and section five reauthorized by Congress in 1970, 1975, 1982, and 2006.[11] The constitutional history of the VRA is as long and bloody as that of the original struggle for voting rights. Many cases helped solidify its power and ensured an interpretation of the Fifteenth Amendment that granted Congress broad power to legislate under the express grant of enforcement.[12]

However, this storied history seems to have ended[13] on June 25, 2013 with the Court’s 5-4 decision in Shelby County v. Holder, which struck down the coverage formula devised in section four.[14] Shelby County’s power and particularity, however, cannot be adequately understood by looking at its text alone. One must look at its curious context in order to understand the troubling trajectory of constitutional law in terms of voting rights, and to fully grasp the admittedly bleak future of the VRA. Given the brevity of this inquiry and the breadth of this topic, I focus my analysis on three particularly troubling aspects of Shleby. The Court’s standard of review for Fifteenth Amendment cases were fairly consistent until Shelby diverged from this consistency and began to chart a questionable and worrying path. The Court’s emphasis on historical data and the need for this data to be “current data reflecting current needs”[15] is also novel and troubling. In addition, the suspect invention of and emphasis placed upon “the principle of equal sovereignty” by the Court lead me to believe that future Fifteenth Amendment enforcement is open to several new avenues of attack. Finally, the destruction of the preclearance requirement created a procedural and substantive hole in its wake, in which the mangled VRA could still function but, thanks primarily to its judicial history, it will never reach the power it once held.

Context

In 2009 the Court made a decision that challenged the constitutionality of section five of the VRA.[16] In Northwest Austin Municipal Utility District Number One v. Holder (NAMUDNO), an opinion by Chief Justice Roberts dodged the constitutional question, stating that the Court’s “usual practice is to avoid the unnecessary resolution of constitutional questions.”[17] This practice of constitutional avoidance, in which the Court adopts another plausible reading of the statute in order to avoid the difficult constitutional question at its core, is handled very unusually in the Roberts Court.[18] But in this case, the avoidance canon decision in NAMUDNO relied on a manifestly false reading of the VRA to meet this end.[19] In order to justify this flimsy reading of the statute, the Court essentially invented “the fundamental principle of equal sovereignty,”[20] in the dicta of the case.[21] These dicta were also full of what were essentially constitutional challenges to the coverage formula and preclearance provision writ large.[22] It was these dicta and this case that became the backbone of the argument in Shelby, which treated NAMUDNO not as avoidance canon but rather like a monumental turn in Fifteenth Amendment jurisprudence. Another important aspect that Chief Justice Roberts points to often in his Shelby decision was his ability to reach near-unanimity behind this argument, with only Justice Clarence Thomas not joining the majority opinion and instead arguing that the Court should have invalidated section five then and there.[23] To understand the novelty of Shelby later on, it is important to point out these distinctions now.

Standard of Review

The first concern and anomaly that arises in the Shelby decision itself is a lack of clarity regarding the standard of review that the Court undertook in order to reach its decision.[24] The Court, as Justice Ginsburg makes clear in her Shelby dissent, not only fails to identify a standard of review at all[25] but also charts a new path that plainly disregards the “rational basis”[26] standard of Katzenbach.[27] As Justice Ginsburg also points out in her dissent, this idea of shirking the standard of review is, sadly, not new for the Roberts Court and the VRA.[28] In NAMUDNO Chief Justice Roberts stated that “[t]he parties do not agree on the standard to apply,” in regard to the constitutional questions, and “we need not resolve it,” because the “preclearance requirements and [the] coverage formula [of the VRA] raise serious constitutional questions under either test.”[29] So, not only does Chief Justice Roberts never clearly state a standard of review in NAMUDNO – because it may not be completely necessary to the decision under the avoidance canon – but he also plainly ignores the question, leaving it for another day while musing about the constitutionality in the dicta.[30] This may have raised eyebrows at the time, but this predicament was not seen as much of a “time bomb” until Shelby, where it exploded.[31] Footnote one states that: “[b]oth the Fourteenth and Fifteenth Amendments were at issue in Northwest Austin… and accordingly Northwest Austin guides our review under both Amendments in this case.”[32] This is a curious act of judicial jiu-jitsu not only because NAMUDNO never clearly announced its employed standard of review, but also because it expressly stated that this question did not matter to the final decision, as the case was one of avoidance. But, in Shelby Chief Justice Roberts writes as though NAMUDNO settled a difficult constitutional question about standard of review in Fifteenth Amendment cases, a question with a history as old and as concrete as the original Voting Rights Cases that followed in the wake of the VRA. “The Court flagged but did not decide the issue in NAMUDNO,” but that is not how it would appear in Shelby.[33]

This is concerning because of the centrality of the review question in Shelby and for Fifteenth Amendment cases generally. The review question “sets the basic ground rules for determining who decides which steps are necessary to prevent racial discrimination in voting,” between Congress and the Court.[34] To fully understand the stealthy action at play here, one must look at the standard dilemma presented in NAMUDNO more closely. In the case, Chief Justice Roberts opened the door to apply a much stricter standard not only to Fourteenth Amendment cases but to Fifteenth Amendment ones as well. The “congruence and proportionality” standard on which Justice Roberts relies comes from Justice Anthony Kennedy’s majority opinion in City of Boerne v. Flores,[35] which was about a 1997 challenge to the Religious Freedom Restoration Act and the scope of Congressional Fourteenth Amendment power.[36] Until NAMUDNO, this standard of review was exclusively held for cases arising under the Fourteenth Amendment, rather than the established norm of rationality from Katzenbach that had previously guided Fifteenth Amendment cases.[37] The “congruence and proportionality,” standard devised in City of Boerne v. Flores is much tougher on Congress, generally causing a rollback of legislation that can be enacted under section five of the Fourteenth Amendment.[38] This standard requires “a connection… between the injury to be prevented or remedied and the means adopted to that end.”[39] In the case of Boerne, Congress created the Religious Freedom Restoration Act under section five of the Fourteenth Amendment, which the Court argued unconstitutional as applied to the states because of its lack of congruence and proportionality between the injury and the legislation. This decision had the subsequent effect of limiting the Congressional enforcement power of the Fourteenth Amendment and also brought questions about the scope of the Fourteenth Amendment into the purview of the Court for the foreseeable future, leaving it up to the Justices to determine the boundaries of this explicit grant of power to Congress. The Court stated that Congress does not have “the power to decree the substance of the Fourteenth Amendment’s restrictions on the States,” but that, for all intents and purposes, the Court does.[40] Interestingly enough, Boerne explicitly distinguished itself from Katzenbach. In Boerne, Justice Kennedy argued that the Court should treat cases that arise under the Fifteenth Amendment and cases of “racial discrimination” differently, giving Congress more leeway in the areas of voting rights and racial discrimination; even going as far as to argue for the rationality basis of Katzenbach as the correct standard of review for these issues.[41] The Court in Boerne also expressly pointed out the congruence and proportionality of the VRA to the Fifteenth Amendment as an example of correct legislating, going out of its way to highlight that the law would pass under both standards of review, even while only necessitating the laxer of the two.[42] But, by NAMUDNO this deference was muddled, and by Shelby it was buried. The dicta in NAMUDNO expanded the Boerne test to Fifteenth Amendment cases, and footnote one in Shelby put these dicta into action, swiftly and stealthily tossing the rationality standard of Katzenbach into the dustbin of history. The Court did so all while never even mentioning Boerne, instead heavily citing NAMUDNO as the origin of this idea.[43] The Court was also far from forthright about the impact of these actions, acting as if it were not overturning established precedent in regard to the question of the standard of review. In the wake of Shelby there now lies much confusion as to what standard the Courts will use in regard to Congressional enforcement of the Fifteenth Amendment in the foreseeable future.

Facts to Fit the Circumstances

The next concern is the way that the Court dealt with the basis of the VRA’s coverage formula. This formula was a central part of the criticism of the VRA all the way back in Katzenbach, and is what Congress had reauthorized in 1970, 1975, 1982, and 2006. Chief Justice Roberts again cited NAMUDNO in his Shelby opinion on this issue, stating that “the Act imposes current burdens and must be justified by current needs,”[44] and that the coverage formula made sense “[a]t the time,”[45] but may be “now unconstitutional.”[46] Allison Orr Larson calls this idea, that the data underlying legislation needs to be “current,” a “constitutional shelf life.”[47] For her, the question at the center of Shelby “was whether the passage of time and changed circumstances created a distinct reason to invalidate the law.”[48] This idea of a constitutional shelf life is not entirely new, however, and was relied upon in the logic behind two early 20th century cases. Justice Holmes in Chastleton Corp. v. Sinclair[49] and Justice Stone in dicta in United States v. Carolene Products Co.[50] mused on the changing “state of facts,”[51] central to a case and the possibility that certain “facts have ceased to exist,” which would subsequently affect the necessity of a law.[52] The law in question in Chastleton Corp. was a Washington D.C. emergency rent-control statute enacted during WWI that arguably was no longer needed by the 1920s,[53] and in Carolene Products it was the federal Filled Milk Act in which Congress argued that filled milk was harmful to public health, although this fact was debatable.[54] In each case, though, instead of flatly overturning the law in question the Court either upheld the law or remanded for further fact finding, showing its hesitancy to enter into the business of determining the validity of the facts of Congress.[55] This norm of deference to Congress even when the facts behind Congress’s arguments are contestable or out-of-date has been a norm under both strict scrutiny[56] and a looser rationality review, and thus Shelby provides yet another curious departure (and in an area as central as voting rights).[57]

An interesting parallel can also be drawn between the ways the Courts have dealt with the challenges to the Controlled Substances Act (CSA) and how the Court dealt with the VRA in Shelby and NAMUDNO. Challenges to the CSA have been brought forth along similar lines as the arguments before the Court in Shelby and NAMUDNO, arguing that new times call for new data and an updated law.[58] Yet each of these arguments was turned down in favor of giving deference to Congressional determination of the relevance of facts underlying the CSA.

In a post-Shelby world the Court seems open to ensuring that the “legislation [Congress] passes to remedy [a] problem speaks to the current conditions,” of the facts as they stand today.[59] Yet, the Court expressly denied a Petition for a Writ of Certiorari on this exact question. The Cert Petition of Heffner v. Murphy asked the Court to clarify whether it now evaluates the rationality of enforcing a challenged law “under factual circumstances of the world today,” or “the rationality of the law when enacted, no matter how long ago and no matter how much the facts have changed?”[60] The Cert Petition then goes on to heavily rely on the Court’s Shelby logic, stating: “the Court [in Shelby] held that the preclearance formula was so obsolete that it could not be constitutionally enforced now.”[61] Needless to say reading the tea leaves in a denial for a Petition for a Writ of Certiorari is generally a fruitless endeavor, but the fact worth noting is that the argument the Court uses in its Shelby opinion was not lost on appellate lawyers around the Country. We certainly have not seen the last of it.

Equal Sovereignty

One concern Shelby raises is arguably what composes the core of the Court’s argument. This being that “[t]here is also a fundamental principle of equal sovereignty among the states.”[62] It is safe to say, as Professor Leah Litman argues, the Court essentially “invented” this term.[63] The history of this concept is somewhat long but fairly consistent. The most well-known and practical understanding of equal sovereignty deals with State admission to the Union. This reading of equal sovereignty, as Justice Ginsburg noted in her dissent, was reiterated in Katzenbach, which held that “the principle ‘applies only to the terms upon which States are admitted to the Union, and not to the remedies for local evils which have subsequently appeared.”[64] Another plausible reading, and the one most-often used in practice, is that the principle is a “placeholder for certain limits on Congress’s powers- namely, that Congress may only exercise its delegated powers and that the states are sovereign and autonomous in certain spheres.”[65] Neither of these readings really have a place in Shelby.

Courts have consistently practiced this principal in regard to laws created by Congress that placed disparate burdens on state entry into the Union.[66] Yet, Shelby charts a new path focused on the “disparate treatment of the States.”[67] Congress has created numerous laws that treat States differently for any number of reasons. Some examples are: the Professional and Amateur Sports Protection Act of 1992,[68] the Clean Air Act of 1963,[69] the Agricultural Adjustment Act of 1933,[70] and the Surface Mining Act of 1977.[71] Each of these laws treated states disparately and each did so based on a number of circumstances, including temporal,[72] unique authority of some states over others,[73] different historical data,[74] or geographic circumstances.[75] The Court’s logic in Shelby is hard to square with this legislative history, and its usage of the term “equal sovereignty,” ignores its past and invents a new one in its place.[76] This is concerning for the future of constitutional law, especially for issues implicating federal concerns – partly because of the unjustified nature and vagueness of this change, but also for its tacit overturning of the settled definition of “equal sovereignty,” as established in Katzenbach.[77]

This leaves the equal sovereignty doctrine to rely on the peculiar idea of equal state “dignity.”[78] Professor Litman argues that there is some history behind this idea, although it is murky and often used as dicta in cases arising under state immunity from lawsuits[79] or the anti commandeering doctrine.[80] This idea of dignity has been used to argue two primary points: that the federal government cannot assume that states will disobey the law and that the federal government and citizens cannot punish states for past actions.[81] This is the only potential connection between the concept of equal sovereignty and the decision in Shelby and, despite its novel development, the Court does not explain how or why it is justified in reaching this particular reading and application of prior equal sovereignty doctrine.

The Gap Left in Shelby’s Wake

The final issue is in regard to the procedural and substantive gap of a post-Shelby VRA landscape. This gap is between section two and section five and arises not from the seemingly identical text but rather out of the complicated judicial history of the two provisions and the way that the Courts have separately interpreted them. A section five-less VRA would mean that – with preclearance not being an option – many more suits will have to be brought under the general grant against “deny[ing] or abridge[ing] the right of any citizen… to vote,” of section two that applies nationwide.[82] Procedurally, this means that: the burden of proof now shifts to the plaintiffs in these cases, cases will usually be more complex and costly, policies or law changes challenged will not be pre-emptively blocked (as they would have been under section five) but will go into effect until an unlikely injunction or after a case, and many cases will now have to be brought forward via private attorneys rather than through the Department of Justice. Substantively, the judicial history of the VRA treats vote dilution[83] and vote denial[84] differently – in particular, more strictly – under section two than section five. Essentially, in section five cases regarding vote dilution, all that must be shown is what is called “retrogression.” Retrogression is a reduction in the total number of districts in which minorities can elect their preferred candidate.[85] In vote denial under section five, a disparate impact is all that needs to be shown.[86] Each type of case was much simpler, and often could be avoided, under section five. Now, they will create long and drawn out legal battles under section two. Another result in this vein is the general emboldening of states to pursue vote denial type legislation in the wake of Shelby, being given the nod that this might be acceptable to a colorblind Court.[87]

Conclusion

The majority opinion in Shelby County was powerful, yet its brevity and lack of clarity on multiple fronts not only are a shameful response to the history of racial discrimination and the struggle for voting rights in America, but also cloak the stealthy power dynamic at work. The Court refused to announce a standard of review and instead “bootsrapp[ed]”[88] congruence and proportionality onto the Fifteenth Amendment, it stepped into the domain of Congress by determining the validity of facts and ignoring the “more than 15,000 page,” record,[89] and it invented a concept without engaging in any history or explanation. As Justice Ginsburg puts it, “[h]ubris is a fit word” for the Court’s actions in Shelby County v. Holder.[90]

 

Cases Cited

Alden v. Maine 527 U.S. 507 (1999)

Americans for Safe Access v. DEA, 706 F.3d 438, 440 (D.C. Cir. 2013)

Beer v. U.S. 425 U.S. 130 (1976)

Board of Trustees v. Garrett 531 U.S. 356 (2001)

Brown v. Detzner 895 F.Supp.2d 1236 (M.D. Fla. 2012)

Chastleton Corp. v. Sinclair 264 U.S. 543 (1924)

City of Boerne v. Flores 521 U.S. 507 (1997)

City of Rome v. United States 446 U.S. 156 (1980)

Coyle v. Smith 221 U.S. 559 (1911)

Ex Parte Webb 225 U.S. 663 (1912)

Federal Maritime Commission v. South Carolina State Ports Authority 535 U.S. 743      (2002)

Florida v. United States, 885 F.Supp.2d 299 (DDC 2012)

Georgia v. Ashcroft 539 U.S. 461 (2003)

Georgia v. United States 411 U.S. 526 (1973)

Harper v. Virginia Board of Elections 383 U.S. 663 (1966)

Hodel v. Indiana 452 U.S. 314 (1981)

Kadonksy v. Holder, No. (UNA), 2014 WL 2739303, at 1* (D.D.C. June 10, 2014)

Katzenbach v. Morgan 384 U.S. 641 (1966)

Lopez v. Monterey County 525 U.S. 266 (1999)

Michael H. v. Gerald D. 491 U.S. 110 (1989)

Miller v. Albright 96 F.3d 1467 (DC 1998)

NAMUDNO v. Mukasey, 573 F. Supp. 2d 221 (DC 2008)

New York v. United States 505 U.S. 144 (1992)

Northwest Austin Municipal Utility District Number One v. Holder 557 U.S. 1 (2009)

Nguyen v. INS 533 U.S. 53 (2001)

Pollard’s Lessee v. Hagan 44 U.S. 3 (1845)

Printz v. United States 521 U.S. 898 (1997)

Sacramento Nonprofit Collective v. Holder, 552 F. App’x 680, 683 (9th Cie. 2014)

Seminole Tribe of Florida v. Florida 517 U.S. 44 (1996)

Shelby County v. Holder 570 U.S. 1 (2013).

Shivley v. Bowlby 152 U.S. 1 (1894)

South Carolina v. Katzenbach 383 U.S. 301 (1966)

Texas v. U.S. 570 U.S. 1 (2011)

United States v. Alaska 545 U.S. 1 (2005)

United States v. Carolene Products Co. 304 U.S. 144 (1938)

United States v. Chavez 290 U.S. 357 (1933)

United States v. Pickard, No. (UNA), 2014 WL 2739303 (D.D.C. June 10, 2014)

United States v. Sandoval 231 U.S. 28 (1913)

Vance v. Bradley 440 U.S. 93 (1979)

 

 

Works Cited

Berman, Ari. Give Us the Ballot. New York: Farrar Straus and Giroux, 201.

Bickel, Alexander M. “The Voting Rights Cases,” Faculty Scholarship Series Paper 3962. Yale Law School Legal Scholarship Repository, accessed 9 December 2016, http://digitalcommons.law.yale.edu/fss_papers/3962.

“Civil Rights Act of 1866, 14 Stat. 27 (1866).” Archives, Kansas State University, accessed 9 December 2016,       http://www.arch.ksu.edu/jwkplan/law/civil%20rights%20acts%20of%201866,%    01870,%201871,%201875.htm

“Civil Rights Act (1964).” Our Documents, United States Government, accessed 9 December 2016, https://www.ourdocuments.gov/doc.php?flash=false&doc=97.

Hasen, Richard L. “Constitutional Avoidance and Anti-Avoidance by the Roberts Court.”   The Supreme Court Review, Vol. 2009, No. 1 (2009): 181-223.

Hasen, Richard L. “Shelby County And The Illusion of Minimalism.” Legal Studies      Research Paper Series No. 2013-116, accessed 9 December 2016,       http://ssrn.com/abstract=2291612.

Hasen, Richard L. “Anticipatory Overrulings, Invitations, Time Bombs, and    Inadvertence: How Supreme Court Justices Move The Law.” Emory Law Journal  Vol. 61:779);

“History of Federal Voting Rights Laws,” Civil Rights Division, United States Department of Justice, .accessed 9 December 2016, https://www.justice.gov/crt/history-federal-voting-rights-laws.

Larsen, Allison Orr. “Do Laws Have a Constitutional Shelf Life?” William & Mary Law       School Scholarship Repository, Faculty Publications, Paper 1795, accessed 1 December 2016, http://scholarship.law.wm.edu/facpubs1795, 61.

Litman, Leah M. “Inventing Equal Sovereignty.” Michigan Law Review Vol.114:1207,  1228

“Northwest Austin Municipal Utility District Number One v. Mukasey (08-322),”             Cornell Legal Information Institute, accessed 9 December 2016,     https://www.law.cornell.edu/supct/cert/08-322.

“New Voting Restrictions in Place for 2016 Presidential Election,” Brennan Center for  Justice, New York University Law School, accessed 14 December 2016,     https://www.brennancenter.org/voting-restrictions-first-time-2016.

Petition for a Writ of Certiorari at I, Heffner v. Murphy, 135 S. Ct. 220 (2014) (No.1453), 2014 WL 3530761, at *i.

Public Law 102-559.

Public Law 88-206.

Public Law 73-10.

Public Law 95-87.

“Public Law 89-110 Voting Rights Act of 1965,” Library Clerk, United States Congress,      accessed 9 December 2016 http://library.clerk.house.gov/reference files/PPL_VotingRightsAct_1965.pdf.

Stephanopoulos, Nicholas O. “The South After Shelby County.” Supreme Court Review    55.2013, University of Chicago, 2014

“The Civil War The Senate’s History.” Senate History, United States Senate, accessed 9      December 2016,       http://www.senate.gov/artandhistory/history/common/generic/CivilWarAmendm    nts.htm.

“The curious disappearance of Boerne and the future jurisprudence of voting rights and race,” Richard L. Hasen for SCOTUSblog, accessed 9 December 2016,     http://www.scotusblog.com/2013/06/the-curious-dissappearance-of-boerne-and      the-future-jurisprudence-of-voting-rights-and-race/

Tokaji, Daniel P., “The New Vote Denial: Where Election Reform Meets the Voting      Rights Act.” South Carolina Law Review, Vol. 57, 689, 2006

Tokaji, Daniel P. “Applying Section 2 to the New Vote Denial.” Harvard Civil Rights    Civil Liberties Law Review Vol. 50, 439, 2013

[1] One of the best and most vibrant accounts is Ari Berman’s Give Us the Ballot; Ari Berman, Give Us The Ballot (New York: Farrar Straus and Giroux, 2015).

[2] “The Civil War The Senate’s History.” Senate History, United States Senate, accessed 9 December 2016, http://www.senate.gov/artandhistory/history/common/generic/CivilWarAmendments.htm.

[3] “Civil Rights Act of 1866, 14 Stat. 27 (1866).” Archives, Kansas State University, accessed 9 December 2016, http://www.arch.ksu.edu/jwkplan/law/civil%20rights%20acts%20of%201866,%201870,%201871,%201875.htm.

[4] “Civil Rights Act (1964).” Our Documents, accessed 9 December 2016, https://www.ourdocuments.gov/doc.php?flash=false&doc=97.

[5] “Public Law 89-110 Voting Rights Act of 1965,” Library Clerk, United States Congress, accessed 9 December 2016 http://library.clerk.house.gov/reference-files/PPL_VotingRightsAct_1965.pdf.

[6] These being: South Carolina v. Katzenbach 383 U.S. 301 (1966) holding section five of the VRA constitutional, Harper v. Virginia Board of Elections 383 U.S. 663 (1966) holding the Poll Tax unconstitutional, and Katzenbach v. Morgan 384 U.S. 641 (1966) upholding section 4(e). Alexander M. Bickel’s, “The Voting Rights Cases,” Faculty Scholarship Series Paper 3962, Yale Law School Legal Scholarship Repository, accessed 9 December 2016, http://digitalcommons.law.yale.edu/fss_papers/3962.

[7] “Public Law 89-110 Voting Rights Act of 1965,” Library Clerk, United States Congress, http://library.clerk.house.gov/reference-files/PPL_VotingRightsAct_1965.pdf.

[8] South Carolina v. Katzenbach 383 U.S. 301 (1966).

[9] “Public Law 89-110 Voting Rights Act of 1965,” Library Clerk, United States Congress, http://library.clerk.house.gov/reference-files/PPL_VotingRightsAct_1965.pdf.

[10] Ibid.

[11]“History of Federal Voting Rights Laws,” Civil Rights Division, United States Department of Justice, .accessed 9 December 2016, https://www.justice.gov/crt/history-federal-voting-rights-laws.

[12] Especially relevant to this paper are: South Carolina v. Katzenbach (1966), Georgia v. United States 411 U.S. 526 (1973), City of Rome v. United States 446 U.S. 156 (1980), and Lopez v. Monterey County 525 U.S. 266 (1999) all of which upheld separate Congressional reauthorizations of the preclearance requirement of the VRA.

[13] This is an inversion of Chief Justice John Roberts’s quip that “history did not end in 1965.” Shelby County v. Holder 570 U.S. 1 at 4.

[14] Shelby County v. Holder 570 U.S. 1 (2013).

[15] Shelby 570 U.S. at 20.

[16] Northwest Austin Municipal Utility District Number One v. Holder 557 U.S. 1 (2009).

[17] Ibid., at 2.

[18] Richard L. Hasen, “Constitutional Avoidance and Anti-Avoidance by the Roberts Court,” The Supreme Court Review, Vol. 2009, No. 1 (2009): 181-223.

[19] Ibid.: “The utility district in NAMUDNO conceded it did not qualify… as a ‘political subdivision’ under section 14(c)(2)… [t]he utility district nonetheless argued that it constituted a ‘political subdivision’ in the ordinary meaning of that term and therefore could bail out,” according to section 4(a). This was contradictory to the expanded section 14(c)(2) which was designed to explicitly cover political subdivisions in covered states (like NAMUDNO).

[20] I will highlight why I, taking heed from Professor Leah Litman, call this an invention later in the paper.

[21] NAMUDNO 557 U.S. at 8.

[22] Arguing, among other things, that “ the Act imposes current burdens need to be justified by current needs,” the “coverage formula is based on data that is now more than 35 years old,” and the coverage formula “differentiates between the states, despite,” a “historic tradition,” of equal sovereignty; NAMUDNO 557 U.S. at 8 and 9.

[23] Opinion of J Thomas, NAMUDNO 557 U.S. at 1.

[24] This concern is wonderfully investigated by Richard L. Hasen in: “Shelby County And The Illusion of Minimalism,” Legal Studies Research Paper Series No. 2013-116, accessed 9 December 2016, http://ssrn.com/abstract=2291612.

[25] “Without even identifying a standard of review,” J Ginsburg, dissenting in Shelby at 23.

[26] South Carolina v. Katzenbach 383 U.S. at 324.

[27] “Until today, in considering the constitutionality of the VRA, the Court has accorded Congress the full measure of respect to its judgments in this domain should garner. South Carolina v. Katzenbach supplies this standard of review,” J Ginsburg dissenting in Shelby at 10.

[28] As in NAMUDNO; Ibid. at 31,

[29] NAMUDNO 557 U.S. at 9.

[30] Interestingly this is directly counter to the Federal Circuit Court that decided NAMUDNO v. Mukasey, 573 F. Supp. 2d 221 (DC 2008); which not only found the rationality standard of Katzenbach to be the correct standard to apply, but that section five would also succeed under the congruence and proportionality standard of Boerne as well; “Northwest Austin Municipal Utility District Number One v. Mukasey (08-322),” Cornell Legal Information Institute, accessed 9 December 2016, https://www.law.cornell.edu/supct/cert/08-322.

[31] “[T]ime bombs, because of their subtlety… are aimed at stacking the deck, or boxing in the Justices, in future cases in which related issues arise… meant to be subtle enough to avoid attracting the attention of other Justices who may disagree with the future use of the language included in the Court’s opinion;” Richard L. Hasen, “Anticipatory Overrulings, Invitations, Time Bombs, and Inadvertence: How Supreme Court Justices Move The Law,” Emory Law Journal Vol. 61:779); and “the Chief Justice obfuscated the standard of review in this case as a time bomb: in a future case he could cite to NAMUDNO and Shelby County fn.1… [a] future opinion can still look back on the obscure footnote as having resolved a key issue;” “The curious disappearance of Boerne and the future jurisprudence of voting rights and race,” Richard L. Hasen for SCOTUSblog, accessed 9 December 2016, http://www.scotusblog.com/2013/06/the-curious-dissappearance-of-boerne-and-the-future-jurisprudence-of-voting-rights-and-race/.

[32] Shelby County v. Holder 570 U.S. fn.1 at 9.

[33] Richard L. Hasen, “Illusion of Minimalism,” 727.

[34] Ibid. 728

[35] City of Boerne v. Flores 521 U.S. 507 (1997).

[36] Chief J Roberts citing City of Boerne, 521 U.S. 507 (1997), at 520 in NAMUDNO 557 U.S., at 9.

[37] A fact not lost on the dissenters; J Ginsburg Dissenting in Shelby 570 U.S., at 11.

[38] City of Boerne v. Flores 521 U.S. 507, at 520.

[39] Ibid.

[40] Ibid. at 519. This case has been cited as a true beginning to the Court’s “federalism revolution; Richard L. Hasen, “Illusion of Minimalism.” This revolution is especially clear in the dissent by Justice Rehnquist in City of Rome v. U.S. (1980) and in the opinions of City of Boerne v. Flores 521 U.S. 507 (1997) and Board of Trustees v. Garrett 531 U.S. 356 (2001).

[41] City of Boerne v. Flores 521 U.S. 507 at 532-533.

[42] Ibid.; “Congress’ means are proportionate to ends legitimate under section 5,” Ibid., at 533.

[43] Boerne is noted zero times in the Opinion, while NAMUDNO is cited 35. The Court plainly acted as if NAMUDNO was addressing constitutional questions when, in fact, it was avoiding them.

[44] Shelby 570 U.S., at 9.

[45] Ibid. at 13.

[46] Ibid. at 14.

[47] Allison Orr Larsen, “Do Laws Have a Constitutional Shelf Life?” William & Mary Law School Scholarship Repository, Faculty Publications, Paper 1795, accessed 1 December 2016, http://scholarship.law.wm.edu/facpubs1795, 61.

[48] Ibid.

[49] Chastleton Corp. v. Sinclair 264 U.S. 543 (1924).

[50] United States v. Carolene Products Co. 304 U.S. 144 (1938).

[51] Chastleton Corp. 264 U.S. at 547.

[52] Carolene Products 304 U.S. at 153.

[53] Chastleton Corp. 264 U.S. at 543.

[54] Ibid. at 144.

[55] In Carolene Products Justice stone expressed his criticism in dicta but upheld the law in his decision and in Chastleton Corp Justice Holmes expressed doubt regarding the facts central to the case but remanded for the lower court to engage in more fact finding.

[56] An example is Nguyen v. INS 533 U.S. 53 (2001) about sex-disparity in immigration law.

[57] Vance v. Bradley 440 U.S. 93 (1979) in regard to the Foreign Service Act, Miller v. Albright 96 F.3d 1467 (DC 1998) regarding sex-disparity in immigration law, Michael H. v. Gerald D. 491 U.S. 110 (1989) regarding seemingly out-of-date paternity law are some examples.

[58] Most prominently in this line of cases are: Sacramento Nonprofit Collective v. Holder, 552 F. App’x 680, 683 (9th Cie. 2014), United States v. Pickard, No. (UNA), 2014 WL 2739303 (D.D.C. June 10, 2014), Americans for Safe Access v. DEA, 706 F.3d 438, 440 (D.C. Cir. 2013), Kadonksy v. Holder, No. (UNA), 2014 WL 2739303, at 1* (D.D.C. June 10, 2014).

[59] Shelby County 570 U.S. at 24.

[60] Petition for a Writ of Certiorari at I, Heffner v. Murphy, 135 S. Ct. 220 (2014) (No.14-53), 2014 WL 3530761, at *i.

[61] Ibid. at 5.

[62] Shelby 570 U.S., at 2; quotations omitted.

[63] Leah M. Litman “Inventing Equal Sovereignty,” Michigan Law Review Vol.114:1207, 1228. This section is hugely indebted to the masterful study by Leah Litman on this topic, the only study of its kind on equal sovereignty as used in Shelby.

[64] J Ginsburg dissent quoting Katzenbach 383 U.S., at 328-329 (emphasis added) in Shelby 570 U.S., at 31.

[65] Litman, 1220.

[66] These cases: Coyle v. Smith 221 U.S. 559 (1911), Pollard’s Lessee v. Hagan 44 U.S. 3 (1845), United States v. Alaska 545 U.S. 1 (2005), Shivley v. Bowlby 152 U.S. 1 (1894), United States v. Chavez 290 U.S. 357 (1933), United States v. Sandoval 231 U.S. 28 (1913), and Ex Parte Webb 225 U.S. 663 (1912).

[67] Shelby 570 U.S., at 2.

[68] Pub.L. 102-559.

[69] Pub.L. 88-206.

[70] Pub.L. 73-10.

[71] Pub.L. 95-87.

[72] PASPA, which prohibits state-run gambling except in states that had gambling prior to the passage of the Act.

[73] CAA, which allows for California to freely pursue, adopt, and enforce its own emissions standards.

[74] The AAA looked at historic production levels to apportion national acreage allotment.

[75] The Surface Mining Act established different requirements for mining in what it designated “prime farmland;” this was the central question in Hodel v. Indiana 452 U.S. 314 (1981).

[76] Shelby 570 U.S., at 6.

[77] As J Ginsburg notes in her dissent in Shelby 570 U.S. at 31.

[78] C J Roberts quoting Bond v. U.S. 564 U.S. 1, (2011) (slip op., at 9), in Shelby County 570 U.S., at 9.

[79] Some cases in this area are: Alden v. Maine 527 U.S. 507 (1999), Seminole Tribe of Florida v. Florida 517 U.S. 44 (1996), and Federal Maritime Commission v. South Carolina State Ports Authority 535 U.S. 743 (2002).

[80] Examples are: New York v. United States 505 U.S. 144 (1992) and Printz v. United States 521 U.S. 898 (1997) which evoked dignity language.

[81] Litman, “Inventing Equal Sovereignty,” 1253.

[82] Sec.2, “Public Law 89-110 Voting Rights Act of 1965,” Library Clerk, United States Congress. Interestingly, my revised version of this key passage from section two is the exact wording of section five, highlighting the identical nature of the two provisions on a purely textual basis.

[83] Common forms include: “cracking,” “packing,” and “submerging” and all have the general effect of lessening the voting power of minorities and their ability to elect the candidates of their preferred choice.

[84] The most prominent examples are in: voter ID laws, felon disenfranchisement, voting equipment, and purging of voter rolls. Daniel P. Tokaji has done masterful work in this area; Daniel P. Tokaji, “Applying Section 2 to the New Vote Denial,” Harvard Civil Rights-Civil Liberties Law Review Vol. 50, 439, 2013; Daniel P. Tokaji, “The New Vote Denial: Where Election Reform Meets the Voting Rights Act,” South Carolina Law Review, Vol. 57, 689, 2006.

[85] Nicholas O. Stephanopoulos “The South After Shelby County,” in the Supreme Court Review 55.2013, University of Chicago, 2014, 76; some cases in the vein of section five are: Beer v. U.S. 425 U.S. 130 (1976) and Georgia v. Ashcroft 539 U.S. 461 (2003) addressing retrogression, and Texas v. U.S. 570 U.S. 1 (2011) regarding total district plans.

[86] Cases that demonstrate this gap are Florida v. United States, 885 F.Supp.2d 299 (DDC 2012) and Brown v. Detzner 895 F.Supp.2d 1236 (M.D. Fla. 2012) which highlight an ID law allowed in a non-covered district but banned in a covered one.

[87] A great resource for this is: “New Voting Restrictions in Place for 2016 Presidential Election,” Brennan Center for Justice, New York University Law School, accessed 14 December 2016, https://www.brennancenter.org/voting-restrictions-first-time-2016.

[88] Hasen, “Illusion of Minimalism,” 728.

[89] J Ginsburg dissent in Shelby County 570 U.S., at 7.

[90] Ibid.

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