This is a post about how one conservative came to the conclusion that the coverage formula for Section 5 of the Voting Rights Act (VRA), despite its flaws, is constitutional and should survive its current challenge before the Supreme Court.
Before the month of June is out, the Supreme Court will decide the case of Shelby County v. Holder (No. 12-96), a case in which a county in Alabama has challenged the continued constitutionality of Section 5 of the VRA. In brief, Section 5 requires covered states and jurisdictions (or “political subdivisions”) to seek “preclearance” for almost any change in voting rules or procedures or any change in laws that could affect the ability of minorities to exercise their constitutional right to vote. Before implementing such a change, which can be anything ranging from closing a polling station or altering the rules for obtaining an absentee ballot to redrawing boundaries for congressional districts, the covered state or subdivision must get approval for the change either from the US Attorney General or from a three-judge panel of the US District Court for DC.
Preclearance is a pain, and it is a pain that only certain states and subdivisions of states must endure. To determine which states and subdivisions are covered by Section 5 and therefore must seek preclearance, the VRA uses a coverage formula — found in section 4(b) of the VRA. This coverage formula imposes coverage based on certain data (such as rates of voter registration and turnout by minority voters), and even though Congress renewed the VRA in 2006, some of these data are drawn from the 1960s and 1970s.
Section 5 was intended to be a temporary measure, although Congress has continued to extend the section’s temporary life at regular intervals. Challengers to the law, like Shelby County, argue that the current extension of Section 5 must rely on current data, reflecting current political realities; absent that, they say, the burdens that Section 5 selectively imposes on covered political entities cannot pass constitutional muster. The VRA’s reliance on what challengers view as an outdated coverage formula means that the continued application of Section 5 has not been shown to be congruent and proportional to the evils to be remedied and forestalled.
I am quite sympathetic to the arguments of the states and subdivisions that are challenging Section 5 before the Court. Section 5 does impose serious costs upon the covered jurisdictions, raising federalism concerns; and the potentially outdated coverage formula employed by the Act elevates the possibility and concern that Section 5 is covering jurisdictions that have not otherwise been shown to merit the extra scrutiny and restrictions.
Nevertheless, based on my reading — and in particular on my reading of the opinions for this case in the Circuit Court of Appeals last Spring (pdf) — I have decided that proper judicial deference to the legislative branch of government requires that the Supreme Court uphold the current coverage formula of the VRA as passed by Congress in 2006. Crucially, the bail-out provision of Section 4, which allows a state or subdivision to be freed from coverage upon the showing of certain facts, goes a long way toward compensating for any error introduced by the use of decades-old data in the coverage formula.
Between the two of them, the bail-out provision and judicial deference to the judgment of Congress mean that the Court should uphold the current form of the Voting Rights Act.
Map of jurisdictions covered by Section 5 of the Voting Rights Act, as of 2008
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So, some background. The Voting Rights Act was first passed in 1965. Congress is empowered to pass the VRA in part by the Fifteenth Amendment, which reads as follows:
Section 1. The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.
Section 2. The Congress shall have power to enforce this article by appropriate legislation.
Congress also draws power for the VRA from the Fourteenth Amendment (which gives Congress the power to enact laws to protect everyone’s right to equal protection of the laws) and from the Constitution’s Article I, section 4, which gives Congress the power to make regulations for elections to Congress.
The Voting Rights Act includes several sections, which provide various mechanisms for protecting the right to vote. The important ones are Section 2 and Section 5. Section 2 allows for private citizens to bring a lawsuit against a state or subdivision alleging that a “standard, practice, or procedure” of that state or subdivision “results in a denial or abridgement of the right of of any citizen of the United States to vote on account of race or color.” In a suit under Section 2, the plaintiff has the burden of proving that the state or subdivision’s plan or action has a discriminatory purpose or result. Section 5 establishes the preclearance requirement, and under Section 5, the state or subdivision has the burden of proving that the plan or action is not discriminatory. Section 2 is permanent. The more far-reaching Section 5 is temporary, and it appears that the Supreme Court, in previous cases, considered the temporary nature of Section 5 to be one factor that was important for deciding that Section 5 is indeed constitutional.
As far as I know, Section 2 is not under attack in the current case before the Supreme Court. Even if the Court rules in favor of Shelby County, individuals (of the DOJ) would still be able to bring suits under Section 2 to attack discriminatory voting practices (including discriminatory maps for congressional districts and the like). Therefore, it is a little frustrating to hear people say that the Court is poised to “strike down the Voting Rights Act.” (I’m thinking, for example, of Rachel Maddow’s interview on the Daily Show.) The Court is poised to strike down one part of the VRA. Section 2 will remain. The South will not be plunged back into the dark days of 1964. I understand that Section 5 is important, and that Section 2 litigation is not the same as Section 5 litigation. I also understand that hyperbole has a place in political discourse. But this level of hyperbole seems particularly misleading.
In any case, when originally passed in 1965, Section 5 was “a response to a common practice in some jurisdictions of staying one step ahead of the federal courts by passing new discriminatory voting laws as soon as the old ones had been struck down. The practice has been possible because each new law remained in effect until the Justice Department or private plaintiffs were able to sustain the burden of proving that the new law, too, was discriminatory.” Northwest Austin Municipal Utility District Number One v. Holder (“NAMUDNO”), 557 U.S. 193, 218 (Thomas, J., dissenting) (quoting Beer v. United States, 425 U.S. 130, 140 (1976)). In plain language, Section 5 is designed to avoid a game of judicial whack-a-mole, where states intent on effectively disenfranchising a minority population keep passing new discriminatory laws and regulations after each previous discriminatory law or regulation is whacked down by the courts.
The VRA, when it was originally enacted, was intended primarily to counteract “tests and devices” like literacy tests and poll taxes. These early forms of voter discrimination generally fall under the rubric of “ballot-access issues,” and scholars and advocates have taken to referring to them as “first-generation” barriers to voting. The consensus is that instances of the presence of these first-generation barriers have diminished greatly. Today, Congress and the courts are more concerned with “second-generation” barriers, especially when it comes to Section 5. As explained by DC Circuit said (in Judge Tatel’s majority opinion):
[S]o-called “second generation” tactics like intentional vote dilution are in fact decades-old forms of gamesmanship. That is, “as African Americans made progress in abolishing some of the devices whites had used to prevent them from voting,” both in the late nineteenth century and again in the 1950s and 1960s, “[o]fficials responded by adopting new measures to minimize the impact of black reenfranchisement.” Voting Rights Act: Evidence of Continued Need: Hearing Before the Subcomm. on the Constitution of the H. Comm. on the Judiciary, 109th Cong. 141–43 (2006) (“Evidence of Continued Need”). These measures — well-known tactics such as packing minorities into a single district, spreading minority voters thinly among several districts, annexing predominately white suburbs, and so on — were prevalent forms of vote dilution then, and Congress determined that these persist today. Specifically, Congress found that while first generation barriers — flagrant attempts to deny access to the polls that were pervasive at the time of Katzenbach — have diminished, second generation barriers such as vote dilution have been constructed to prevent minority voters from fully participating in the electoral process. Although such methods may be more subtle than the visible methods used in 1965, Congress concluded that their “effect and results are the same, namely a diminishing of the minority community’s ability to fully participate in the electoral process and to elect their preferred candidates of choice.” H.R. Rep. No. 109-478, at 6.
Shelby County v. Holder, 679 F.3d 848, 865 (D.C. Cir. May 18, 2012) (some internal citations and quotation marks removed) (emphasis added). (I’m sure it says something that “packing minorities into a single district” and “spreading minority voters thinly among several districts” both can constitute voter discrimination under the VRA.) As one might guess, DOJ and judicial scrutiny of these second-generation barriers most often comes up in the context of state legislatures drawings maps for congressional districts, state senate districts, and state house districts.
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Section 5 does not apply to every state and subdivision in the country. This in itself is unusual. One of the basic operating rules of our federal system is that, as a general matter, a law passed by Congress applies equally in all states and throughout the country. There are some limited exceptions to this — for example, when Congress is making law for the Territories (this power was much more important in 1875 than it is today) — and some laws will not affect all states equally. (Federal statutes dealing with harbors do not affect Utah quite as much as they affect Virginia.) But as a rule, when Congress makes a law, it makes a law for everyone.
Section 5 is different. At the time the VRA was first passed, Congress determined (on sound evidence) that voting discrimination (especially in the form of tests, etc.) was largely concentrated in a few states. Therefore, Congress designed a coverage formula so that Section 5 would target jurisdictions with especially egregious histories of voting discrimination. The Supreme Court, when reviewing the new law, said: “Congress had learned that substantial voting discrimination presently occurs in certain sections of the country, and it knew no way of accurately forecasting whether the evil might spread elsewhere in the future. In acceptable legislative fashion, Congress chose to limit its attention to the geographic areas where immediate action seemed necessary.” Katzenbach v. South Carolina, 383 U.S. 301, 328 (1966) (internal citations omitted). (I think we all know what Chief Justice Warren means when he says “certain sections of the country.”) In the covered jurisdictions, “case-by-case eradication was woefully inadequate to ensure that the franchise extended to all citizens regardless of race.” NAMUDNO, 557 U.S. at 220 (Thomas, J., dissenting).
So, Section 5 is a temporary measure designed to cover only the worst offending jurisdictions. At this time, Section 5 more or less fully covers nine states (most of them in the Deep South) and covers one or more subdivisions in
six seven other states (see the map above).
In its current form, the coverage formula in Section 4(b) provides that Section 5 covers jurisdictions that (1) used any “voting test or device” during 1964, 1968, or 1972, and (2) had less than 50% of its citizens either registered to vote or vote in the 1964, 1968, or 1972 presidential elections. (A “voting test or device” includes things like literacy tests, or a requirement to recite the Constitution from memory.) The coverage formula is, quite openly, a product of reverse engineering. As Judge Tatel said, “the election years that serve as coverage “triggers” under section 4(b) were never selected because of something special that occurred in those years. Instead, Congress identified the jurisdictions it sought to cover — those for which it had evidence of actual voting discrimination — and then worked backward, reverse-engineering a formula to cover those jurisdictions. The coverage formula relied on tests and devices because of their long history as a tool for perpetrating the evil, and voting rates because widespread disenfranchisement must inevitably affect the number of actual voters. In other words, Congress chose the section 4(b) criteria not because tests, devices, and low participation rates were all it sought to target, but because they served as accurate proxies for pernicious racial discrimination in voting.” Shelby County, 679 F.3d at 879 (internal quotation marks and citations omitted).
Crucially, the VRA includes a “bail-in” provision and a “bail-out” provision. Under the bail-in provision, if a federal judge finds (generally through successful Section 2 actions) that a jurisdiction demonstrates a sufficient amount of voting discrimination, the judge may bail in that jurisdiction so that it becomes subject to at least partial preclearance. (I was shocked, reading Judge Tatel’s opinion, to learn that the city of Chattanooga, Tennessee had been bailed in under the Act!)
Under the bail-out provision, a covered jurisdiction can become exempt from the preclearance requirement if it can show, basically, that it has a clean record for the the past ten years. In 2009, in NAMUDNO, the Supreme Court allowed one small jurisdiction of Texas to bail out. Also, some 15 counties and cities in Virginia have bailed out (although the state as a whole must still seek preclearance, for example, when drawing maps for congressional districts). Otherwise, not many jurisdictions have been bailed out (and no states, so far).
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When it renewed the temporary portions of the VRA for another 25 years in 2006, Congress did not alter the coverage formula in Section 4(b). The coverage formula was last substantively adjusted in 1975, when data from the 1972 elections was incorporated into the formula. Most likely, Congress did not alter the coverage formula in 2006 because the members of Congress could not agree on what a new coverage formula would look like. (According to Rick Pildes: “it was politically easier for Congress to simply reaffirm the status quo, rather than confront the difficult policy and political questions posed by making judgments about where problems of race and voting rights were most acute today.”)
So, as a result of the 2006 renewal, some states and subdivisions will be covered by Section 5 and subject to preclearance through 2031 based on voter registration and turnout data that are now 40 years old (unless they get bailed out).
To date, the Court has repeatedly heard and uniformly rejected challenges to Section 5’s preclearance scheme itself. For the purposes of this post, I will assume that preclearance itself is constitutional. (That also happens to be my true belief, but I do not want to lay out a detailed defense of preclearance at this time.) My concern here is focused on the coverage formula. I also predict that the Supreme Court, in deciding this case, will focus on the coverage formula and sidestep any detailed discussion of the constitutionality of preclearance in itself.
The argument of Shelby County and its amici, reduced to the essentials, is that the coverage formula is outdated. Sudeep Paul nicely summarizes this argument:
The coverage formula was created at a time when Congress was trying to fight against first-generation barriers to voting, such as poll taxes, literacy tests, and outward intimidation at voting sites. These barriers are different from the voter polarization and vote dilution problems that Congress is trying to combat today. Yet, Congress’s shift in focus has not led it to change the criteria used to identify jurisdictions. The current coverage formula is unable to identify jurisdictions that are currently covered for first-generation offenses that have not had second-generation offenses. Therefore, the coverage formula is unconstitutionally superseding the sovereignty of States that do not have second-generation offenses.
See also the dissenting opinion of Judge Williams in the Court of Appeals: “Despite a congressional record of over 15,000 pages and 22 hearings, there is little to suggest that § 4(b)’s coverage formula continues to capture jurisdictions with especially high levels of voter discrimination. To the extent that the answer is, as the district court suggested, that Congress wished to ‘continue to focus on those jurisdictions with the worst historical records of voting discrimination,’ such an overwhelming focus on historical practices appears foreclosed by Northwest Austin‘s requirement that current burdens be justified by current needs.” 679 F.3d at 900 (Williams, J., dissenting) (internal citations omitted).
In 2009, the Supreme Court signaled in dicta that some of the justices might be receptive to such an argument. In NAMUDNO, Chief Justice Roberts, in an opinion that seven other justices endorsed, wrote: “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.” 557 U.S. at 203.
The Chief Justice meant this to be a not-so-subtle hint to Congress to revise coverage formula. However, since the Republicans, with the help of a number of Tea Party candidates, retook control of the House in 2010, we have had a divided Congress. It has been difficult to get the House and the Senate to agree on any legislation, much less something as potentially explosive and contentious as a new coverage formula for preclearance. (In particular, what congressman or senator from a non-covered state would want to vote for a new formula that would cover his or her home state?) In short, Congress has not acted to revise the coverage formula, and for the foreseeable future it is hard to see how they would do so.
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So, the question is whether the VRA, with the old Section 4(b) coverage formula, does a sufficient job of applying the preclearance requirement to those jurisdictions where the conditions justify imposition of the requirement — i.e., the worst offenders, where a scattershot defense of Section 2 lawsuits would be woefully inadequate. In a slightly different context, writing for the Court about Congress’s powers under the Fourteenth Amendment, Justice Kennedy said, “There must be a congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end.” City of Boerne v. Flores, 521 U.S. 507, 520 (1997). It is likely that the Court will apply a similar standard when looking at the coverage formula for Section 5 of the VRA. Is the old coverage formula congruent and proportional to current voting discrimination conditions?
It is here that the bail-in and bail-out provisions become very important to the survival of the Act in its current form. In Judge Tatel’s Court of Appeals opinion, he writes that “in determining whether section 5 is ‘sufficiently related to the problem that it targets,’ we must look not just at the section 4(b) formula, but at the statute as a whole, including its provisions for bail-in and bailout.” 679 F.3d at 881. Later (and for me, this is the most important part of the opinion), the court explains how the bail-out provision acts as a kind of automatic updating mechanism for the coverage formula:
The importance of this significantly liberalized bailout mechanism cannot be overstated. Underlying the debate over the continued need for section 5 is a judgment about when covered jurisdictions — many with very bad historic records of racial discrimination in voting — have changed enough so that case-by-case section 2 litigation is adequate to protect the right to vote. Bailout embodies Congress’s judgment on this question: jurisdictions originally covered because of their histories of discrimination can escape section 5 preclear ance by demonstrating a clean record on voting rights for ten years in a row. See 42 U.S.C. § 1973b(a)(1) (bailout criteria). As the House Report states, “covered status has been and continues to be within the control of the jurisdiction such that those jurisdictions that have a genuinely clean record and want to terminate coverage have the ability to do so.” H.R. Rep. No. 109-478, at 25. Bailout thus helps to ensure that section 5 is “sufficiently related to the problem that it targets,” Nw. Austin, 129 S. Ct. at 2512.
This, then, brings us to the critical question: Is the statute’s “disparate geographic coverage … sufficiently related to the problem that it targets? Of course, if the statute produced “a remarkably bad fit,” Dissenting Op. at 25, then we would agree that it is no longer congruent and proportional. But as explained above, although the section 4(b) formula relies on old data, the legislative record shows that it, together with the statute’s provisions for bail-in and bailout — hardly “tack[ed] on,” id. at 30 (internal quotation marks omitted), but rather an integral part of the coverage mechanism — continues to single out the jurisdictions in which discrimination is concentrated. Given this, and given the fundamental principle that we may not “strik[e] down an Act of Congress except upon a clear showing of unconstitutionality,” Salazar v. Buono, 130 S.Ct. 1803, 1820 (2010) (plurality opinion), we see no principled basis for setting aside the district court’s conclusion that section 5 is sufficiently related to the problem that it targets.
679 F.3d at 882-83 (some internal citations omitted) (bolded emphasis added). Ultimately, I agree. I was surprised, but I do.
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The Court heard oral arguments in Shelby County last February. For me, the most humorous exchange during oral arguments was between Solicitor General Verrilli and Justice Alito:
GENERAL VERRILLI: I’ll point out there’s a certain irony in the argument that what — that what Petitioner wants is to substitute Section 2 litigation of that kind for the Section 5 process, which is much more efficient and much more — and much speedier, much more efficient and much more cost effective.
JUSTICE ALITO: Then why shouldn’t it apply everywhere in the country?
Later, Justice Kennedy picked up the same theme:
JUSTICE KENNEDY: Do you think the preclearance device could be enacted for the entire United States.
GENERAL VERRILLI: I don’t think there is a record that would substantiate that. But I do think Congress was –
JUSTICE KENNEDY: And that is because that there is a federalism interest in each State being responsible to ensure that it has a political system that acts in a democratic and a civil and a decent and a proper and a constitutional way.
Indeed, one solution to the current legal challenge to Section 5 would be to make Section 5 apply to everyone. Voter suppression and election day chicanery are not limited to any one region of the country, or to only certain cities or certain precincts of New York. Make every jurisdiction in the country get preclearance. Make every jurisdiction in the country get preclearance for their changes to election procedures. Make every state get the DOJ or a panel of judges to sign off on their latest district maps and their egregious gerrymandering. Make every city council think twice before it closes a certain polling station. Make it so that every secretary of state, every director of elections, every mayor and every county commissioner knows that they will have to explain themselves to a panel of federal judges, or to lawyers at DOJ. (This will never happen, because it would be a huge increase in workload for the Justice Department and federal judges, and it would be monstrously expensive, and Congress has little incentive to make it happen.)
Maybe this would be overkill. But it would put every voting precinct on an equal footing.
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President Bush signing the Voting Rights Act reauthorization bill in 2006
In its arguments in defense of the Act, the government made much of the role of judicial deference to the judgment of Congress. The Solicitor General made a argument along these lines:
What Congress did was make a cautious choice in 2006 that given the record before it and given the history, the more prudent course was to maintain the deterrent and constraining effect of Section 5, even given the federalism costs, because, after all, what it protects is a right of fundamental importance that the Constitution gives Congress the express authority to protect through appropriate legislation.
For me, this argument is not satisfying, but it is ultimately convincing. I would be happier if Congress had enacted a more updated coverage formula, but, given that bail-in and bail-out exist, I do not conclude that the current coverage formula is unworkable or clearly unconstitutional.
The Court of Appeals put the matter in these terms:
The point at which section 5’s strong medicine becomes unnecessary and therefore no longer congruent and proportional turns on several critical considerations, including the pervasiveness of serious racial discrimination in voting in covered jurisdictions; the continued need for section 5’s deterrent and blocking effect; and the adequacy of section 2 litigation. These are quintessentially legislative judgments, and Congress, after assembling and analyzing an extensive record, made its decision: section 5’s work is not yet done.
679 F.3d at 873.
Perhaps the best test of our real loyalty to a principle of jurisprudence is our reaction when adherence to that principle leads to a policy outcome that we dislike. Here, the principle is judicial deference to the legislative branch. In this case, there is a strong appearance that Congress didn’t do its job back in 2006. The congressmen and senators did not make the investigations and gather the current data that would justify the precision application of Section 5 to specific jurisdictions. Congress should have done a better job of laying the foundations for its application of Section 5. But the Supreme Court’s proper judicial deference to the legislative branch may require that the Court accept Congress’s decision that Section 5 should continue to apply as it has in the past. The Fourteenth and Fifteenth Amendments explicitly give Congress the power to make statutes like the Voting Rights Act, and perhaps it is not the place of the Supreme Court to say that Congress should have done things differently when it voted in 2006 to reauthorize the Act.
Image Credits: (1) Map by DOJ. Source: Wikipedia. (2) White House photo by Paul Morse, 27 July 2006. In the first row behind President Bush, from left to right, are Sen. Arlen Specter of Pennsylvania (who was still a Republican at that point), Rep. John Conyers of Michigan, Rep. Jim Sensenbrenner of Wisconsin, Rep. Nancy Pelosi, Sen. Harry Reid, and Sen. Bill Frist of Tennessee. Attorney General Alberto Gonzales is peeking over Harry Reid’s shoulder, and Sen. Hillary Clinton is standing behind AG Gonzales. Sen. Lindsey Graham is visible directly behind Rep. Conyers. Public Domain. Source: Wikimedia Commons.
. The most common procedure that might be labelled a first-generation style barrier today would probably be some forms of Voter ID laws.↩
. In NAMUDNO, Chief Justice Roberts remarked that “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.” 557 U.S. at 203.↩
. In 1965, Section 5 was set to sunset after 5 years. Congress renewed the section in 1970 for another 5 years, then again in 1975 for 7 years. Congress renewed the section in 1982 for 25 years. Congress renewed the section in 2006 for a further 25 years, so that, absent invalidation by the courts or repealing legislation, Section 5 should remain in force until 2031.↩
. For a very good overview of the coverage formula of the VRA, see a Comment by Sudeep Paul (a rising 3L at Duke Law), “The Voting Rights Act’s Fight to Stay Rational: Shelby County v. Holder,” 8 Duke J. Const. L. & Pub. Policy Sidebar 271-98 (2013). In footnote 28, on page 274, Paul notes that, in order to qualify for bail-out, a jurisdiction must show that it has not done or received any of the following within the past ten years:
(a) used a test or device to determine voter eligibility;
(b) received a judgment by any court holding that the jurisdiction has denied or abridged the right to vote on account of race or color;
(c) had federal observers assigned to the jurisdiction;
(d) been found to have passed a voting change without preclearance approval; or
(e) had the US Attorney General object to a proposed voting change under Section 5.
Paul goes on: “Additionally, the jurisdiction has to ensure that it has eliminated voting procedures that ‘inhibit or dilute equal access to the electoral process,’ and that it has ‘engaged in constructive efforts to eliminate intimidation and harassment’ of voters. The jurisdiction must also have ‘engaged in other constructive efforts, such as expanded opportunity for convenient registration and voting for every person of voting age and the appointment of minority persons as election officials throughout the jurisdiction and at all stages of the election and registration process.'”↩
. Paul, ibid., 294-95 (internal citations omitted).↩
. Justice Thomas, of course, wrote separately to say that he thought the Court should have gone all the way and invalidated the coverage formula.↩