On June 25, in Shelby County v. Holder , the Supreme Court upset part of the Voting Rights Act by finding the geographic reach of Section 5 of the Act unconstitutional. That Section provides that no change in voting procedures may be made by certain jurisdictions (states, counties, etc., known as covered jurisdictions) unless a declaratory judgment approving the change has been issued by the District Court of the District of Columbia or until the proposed change has received approval by the U.S. Attorney General. (This procedure for advance approval is known as "preclearance.") Section 4(b) of the Act contains formulas identifying the covered jurisdictions.
The Act was passed in 1965 for a limited term of years, but extended — in effect reenacted — several times since, most recently in 2006. The 1970 and 1975 re-enactments modified § 4(b) to extend coverage to additional jurisdictions. The re-enactments of 1982 and 2006 did not alter coverage. As of the time of the decision, nine states and parts of six others were covered.[57]
By contrast, Section 2 of the Act, which bans any "standard, practice, or procedure" that "results in a denial or abridgement of the right of any citizen . . . to vote on account of race or color," applies nationwide.
Alabama is a covered jurisdiction. Shelby County, Alabama, sued the Attorney General in Federal District Court in Washington, D. C., seeking a declaratory judgment that sections 4(b) and 5 are unconstitutional. The District Court upheld the Act and the Court of Appeals for the D. C. Circuit affirmed. The Supreme Court reversed, holding that § 4(b) is unconstitutional.
The majority opinion, by Chief Justice Roberts, is based on a principle of state sovereignty and on the conclusion that §4(b) is based on obsolete data. He melded the two into a theory that Congress may not treat states unequally unless there is some compelling reason to do so, and unless it is relying on data which (the Court thinks) are sufficiently current. If that sounds like dubious Constitutional law, it’s because it is. The decision leaves §5 in limbo, valid in concept but unusable until a new formula is devised, one which, by implication, the Court must approve.
The Chief Justice invoked state sovereignty in his first paragraph:
The Voting Rights Act of 1965 employed extraordinary measures to address an extraordinary problem. Section 5 of the Act required States to obtain federal permission before enacting any law related to voting — a drastic departure from basic principles of federalism. And §4 of the Act applied that requirement only to some States — an equally dramatic departure from the principle that all States enjoy equal sovereignty.
The opinion refers to state sovereignty so often that nullifiers might think that the Chief Justice is jumping on their bandwagon, especially considering this comment:
Outside the strictures of the Supremacy Clause, States retain broad autonomy in structuring their governments and pursuing legislative objectives. Indeed, the Constitution provides that all powers not specifically granted to the Federal Government are reserved to the States or citizens. Amdt. 10.
The Tenth Amendment, dear to antifederalists, does not include the word "specifically." It would be interesting to know whether Roberts was consciously stacking the deck or whether he doesn’t know what the Amendment says. It is a measure of the condition of the Court that either explanation is plausible.
Other comments in the opinion tend in the same direction:
"[T]he Framers of the Constitution intended the States to keep for themselves, as provided in the Tenth Amendment, the power to regulate elections."
and
[T]he Act "authorizes federal intrusion into sensitive areas of state and local policymaking," . . . and represents an "extraordinary departure from the traditional course of relations between the States and the Federal Government . . . ."
The latter is empty rhetoric. The former is nonsense, at least in this context, as the Tenth Amendment says nothing about elections and hardly can be taken to overrule the Fifteenth, which provides:
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.
However, the distorted references to the Tenth Amendment are the only hints as to which part of the Constitution is offended by Section 4.
Contrary to those sweeping statements, most of the references to states’ rights or federalism in the opinion, and the ones which relate to the holding, are limited to the question of treating states equally. This is a typical statement: "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." Even that modified nod toward states’ rights is dubious. South Carolina v. Katzenbach , the decision upholding the original voting rights Act, rejected the Roberts version of of the equal-treatment theory:
In acceptable legislative fashion, . . . Congress chose to limit its attention to the geographic areas where immediate action seemed necessary. . . . The doctrine of the equality of States, invoked by South Carolina, does not bar this approach, for that doctrine 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. [58]
In addition, the dissent [59] pointed out that there are numerous federal statutes which treat states differently.
Here is the ruling: "Because §5 applies only to those jurisdictions singled out by §4, the Court turns to consider that provision. . . . . Section 4's formula is unconstitutional in light of current conditions." However, the Court’s objection to the coverage provisions of Section 4 is not specific; it does not find that any given jurisdiction should be removed from coverage or even set forth a test to justify coverage. It does not challenge the basic principle that some areas of the country may require supervision. It simply holds that the coverage provisions are out of date.
This is largely an assumption based on the passage of time, buttressed by selective quotation of Congressional findings. The opinion took this from the findings included in the 2006 Act: "Significant progress has been made in eliminating first generation barriers experienced by minority voters, including increased numbers of registered minority voters, minority voter turnout, and minority representation in Congress, State legislatures, and local elected offices." The Court acknowledged that "these improvements are in large part because of the Voting Rights Act," but its conclusion is a non sequitur: "Yet the Act has not eased §5's restrictions or narrowed the scope of §4's coverage formula along the way. Instead those extraordinary and unprecedented features have been reauthorized as if nothing has changed . . . ." That ignores the possibility that only the continued existence of the Act’s requirements precludes backsliding or resort to new forms of discrimination. That is not an academic consideration. The Congressional findings made clear that continuing coverage is necessary for just those reasons; here are the principal findings set out in the 2006 Act:
(1) Significant progress has been made in eliminating first generation barriers experienced by minority voters, including increased numbers of registered minority voters, minority voter turnout, and minority representation in Congress, State legislatures, and local elected offices. [The majority opinion quoted only this much.] This progress is the direct result of the Voting Rights Act of 1965. . . .
(3) The continued evidence of racially polarized voting in each of the jurisdictions covered by the expiring provisions of the Voting Rights Act of 1965 demonstrates that racial and language minorities remain politically vulnerable, warranting the continued protection of the Voting Rights Act of 1965. . . .
(5) The evidence clearly shows the continued need for Federal oversight in jurisdictions covered by the Voting Rights Act of 1965 since 1982 . . . .
(7) Despite the progress made by minorities under the Voting Rights Act of 1965, the evidence before Congress reveals that 40 years has not been a sufficient amount of time to eliminate the vestiges of discrimination following nearly 100 years of disregard for the dictates of the 15th amendment and to ensure that the right of all citizens to vote is protected as guaranteed by the Constitution. . . .
(9) The record compiled by Congress demonstrates that, without the continuation of the Voting Rights Act of 1965 protections, racial and language minority citizens will be deprived of the opportunity to exercise their right to vote, or will have their votes diluted, undermining the significant gains made by minorities in the last 40 years. [60]
Put simply, covered jurisdictions continue to discriminate, so no revision to the formula is required.
Congress’ findings were not made haphazardly. As stated by the dissent, in 2006 it amassed an "extensive record" showing that "serious and widespread intentional discrimination persisted in covered jurisdictions."
The House and Senate Judiciary Committees held 21 hearings, heard from scores of witnesses, received a number of investigative reports and other written documentation of continuing discrimination in covered jurisdictions. In all, the legislative record Congress compiled filled more than 15,000 pages. . . . The compilation presents countless "examples of flagrant racial discrimination" since the last reauthorization; Congress also brought to light systematic evidence that "intentional racial discrimination in voting remains so serious and widespread in covered jurisdictions that section 5 preclearance is still needed."
Congress didn’t just extend the act blindly, as the Court implies; it looked at the record and found "the continued need for Federal oversight in jurisdictions covered . . . " Given that record, the majority’s objection to the coverage provisions collapses.
In addition, the coverage is not fixed for all time. The Act permits a jurisdiction to "bail out," i.e., be removed from coverage, by showing that it has complied with the Act for ten years, and has engaged in efforts to eliminate intimidation and harassment of voters. Conversely, the Act authorizes a court to subject a non-covered jurisdiction to federal preclearance upon finding that violations of the Fourteenth and Fifteenth Amendments have occurred there.
However, all of this is beside the point: it is Congress’ right and function to determine the factual bases and justifications for legislation; the Court’s substitution of its judgment is another example of conservative judicial activism.
The Court repeatedly cited Northwest Austin Municipal Util. Dist. No. One v. Holder , 557 U. S. 193 (2009), as authority, but each of the references to that decision was to dictum. In that case, the Court held that the Plaintiff Utility District had standing to file a bail-out suit, which disposed of the case, but the opinion, by Chief Justice Roberts, went on at length about how suspect the Voting Rights Act had become. Those ramblings were unnecessary to the result, by definition obiter dicta , and of no precedential value. Resort by the Chief Justice to his own previous gratuitous comments illustrates the weakness of the Shelby County decision.
The portions of the statute which treat states equally were not overturned: the "decision in no way affects the permanent, nationwide ban on racial discrimination in voting found in §2." Even §5 was left intact, merely suspended until Congress comes up with a revision to § 4 which suits five Justices. Given the present state of Congress, and the Court, that may be a long time.
One of the oddities of the decision, and of the attitude of the majority, is that the 2006 extension of the Voting Rights Act wasn’t exactly a liberal attempt to upset the Constitutional balance. It was adopted by a Congress controlled by Republicans: the Senate by 55-44, the House by 231-202.[61] The vote in favor of the Act was 98 to 0 in the Senate and 390 to 33 in the House. Obviously not a single Senator from an affected state, nor a Republican Senator, voted against the act. Of the 390 who voted in favor in the House, 198 were Democrats, 192 Republicans. The 33 nay votes all were Republican; by my count, 18 came from covered states and 8 from states covered in part, but 7 from states not affected. By contrast, 67 votes in favor came from covered states, and 119 from partially-covered states.[62] The bill was signed by a Republican President from a covered state.
That political background hardly reflects a repudiation of the geographical or ideological underpinnings of the Act. Either conservative opinion has changed drastically in seven years, or the Court is out on a limb of its own, perhaps both.
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57. http://www.justice.gov/crt/about/vot/sec_5/covered.php
58. South Carolina v. Katzenbach, 383 U.S. 301, 328 (1966).
59. The dissent was written by Justice Ginsburg, joined by Justices Breyer, Kagan and Sotomayor. The majority, in addition to the Chief Justice, included Justices Scalia, Thomas, Kennedy and Alito.
60. http://www.gpo.gov/fdsys/pkg/PLAW-109publ246/pdf/
61. http://en.wikipedia.org/wiki/Party_divisions_of_united_states_congresses
62. http://projects.washingtonpost.com/congress/109/house/2/votes/374/
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