February 24, 2016

Ari Berman, in his recent book Give Us the Ballot, traced the history of the Voting Rights Act (VRA). In discussing its fate during the Reagan administration, he noted the influence of a young lawyer in the Justice Department, John Roberts, about whom we would hear much more later. Roberts wrote numerous memos arguing for a limited interpretation of the Act.

The Voting Rights Act is based upon the Fifteenth Amendment, which provides as follows:

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.

The Congress shall have power to enforce this article by appropriate legislation.

Section 2 of the VRA stated that "No voting qualification or prerequisite to voting, or standard, practice, or procedure shall be imposed or applied by any State or political subdivision to deny or abridge the right of any citizen of the United States to vote on account of race or color." That seems straightforward enough, but enforcement of it turned out not to be. The Supreme Court, in City of Mobile v. Bolden (1980), considered a claim under Section 2. The plurality opinion pointed out that the Court previously had considered challenges brought directly under the Amendment and, in ruling on them, it had held that "action by a State that is racially neutral on its face violates the Fifteenth Amendment only if motivated by a discriminatory purpose." In other words, proof of intent was required.

Although it should have been obvious that the VRA was designed to enforce the Amendment, which gave Congress the power to do so, the opinion in Mobile declared that the language of Section 2 of the VRA "no more than elaborates upon that of the Fifteenth Amendment," and that the legislative history "makes clear that it was intended to have an effect no different from that of the Fifteenth Amendment itself." Why, then, one might ask, did Congress bother to enact it? Ignoring that puzzle, the plurality held that any claim under Section 2, like one under the Amendment, would fail unless there was proof of discriminatory intent.[11]   Intent is notoriously difficult to prove in any context; requiring it under a remedial statute dealing with state action is judicial obstruction.

Early in the Reagan years, the VRA was up for renewal, and lawyer Roberts was an enthusiastic supporter of the intent requirement. He urged the administration to uphold that principle in dealing with Congress regarding renewal. Mr. Berman quoted from one of Roberts’ memos, of December 22, 1981, in which he argued that "violations of §2 should not be made too easy to prove, since they provide a basis for the most intrusive interference imaginable by federal courts into state and local processes."[12] The House, however, proposed an amendment to §2 which would overturn the Court’s requirement of intent. Roberts responded with a memo of February 23, 1982, arguing against the change and attaching the portion of his earlier memo setting forth the "intrusive interference" theory quoted above.[13]   Fortunately, the administration was less doctrinaire than Roberts and, in 1982, President Reagan signed the renewed Act, which overturned the Mobile interpretation; the restated Section 2 would be violated if a voting practice had the effect of discriminating against minority voters, whether or not the plaintiffs could establish that it was motivated by bias.

Thirty-one years later, Chief Justice Roberts had the opportunity to enforce his views, although with a different part of the VRA as his target. In Shelby County v. Holder (2013), in which he wrote the majority opinion, the issue was the viability of §5 of the VRA which, unlike §2, applies only to jurisdictions with a history of racial discrimination. However, to Roberts the issue was the same, states’ rights, including the right to equal treatment: "The question is whether the Act's extraordinary measures, including its disparate treatment of the States, continue to satisfy constitutional requirements." He decided that one of the extraordinary measures, the formula in §4(b) for defining jurisdictions covered by §5, was obsolete, even though it had been reaffirmed by Congress in 2006. Even if it were out of date, and acknowledging the unequal treatment of states, what part of the Constitution did the Act offend?

Roberts first invoked a general principle: "Outside the strictures of the Supremacy Clause, States retain broad autonomy in structuring their governments and pursuing legislative objectives." True, but too vague to serve; certainly there must be a Constitutional peg on which to hang the argument. Oh yes: "Indeed, the Constitution provides that all powers not specifically granted to the Federal Government are reserved to the States or citizens. Amdt. 10." Well, no, it doesn’t; the Tenth Amendment does not include the word "specifically."

Undaunted, he continued: " '[T]he Framers of the Constitution intended the States to keep for themselves, as provided in the Tenth Amendment, the power to regulate elections', " quoting Gregory v. Ashcroft (1991), which does say that, but cites as its authority a non-majority opinion. However, authority or none, that argument is spurious. In addition to being a weak reed (and misquoted by Roberts), the Tenth Amendment clearly must yield to the Fifteenth in this area. The Tenth provides, tautologically, "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." With or without Roberts’ amendment, it says nothing about voting rights. The Fifteenth, specifically, addressees voting rights, and it, specifically, delegates powers to the federal government. The Tenth has no place in the argument.

Stripped of the attempt to find a relevant Constitutional provision, Justice Roberts’ holding comes down to two assertions with which he began his opinion. "Preclearance" requires covered jurisdictions to obtain permission, from the U. S. Attorney General or from the U. S. District Court for the District of Columbia, before enacting any law related to voting. That, he said, is "a drastic departure from basic principles of federalism." Applying that requirement only to some states — he refers to this as "disparate treatment of States" — is a "dramatic departure from the principle that all States enjoy equal sovereignty."

Under this theory, states’ rights are part of federalism, a term more often used than defined. According to Roberts, federalism necessarily implies "equal sovereignty," but that is a meaningless concept: the requirement that states be treated equally is inconsistent with the notion that they are sovereign. Sovereignty, by definition, means immunity from outside authority; if states are sovereign, they can’t be "treated" by another authority (the federal government), equally or otherwise. A possible fallback position would be to assert that states have limited or qualified sovereignty. (That is more or less the truth, although it would be more accurate to say that states have certain areas of jurisdiction). However, conceding limits on sovereignty makes it difficult to claim that some fundamental right of a state has been violated. In discussing the Tenth Amendment, the Chief Justice said: "This allocation of powers in our federal system preserves the integrity, dignity, and residual sovereignty of the States." "Residual sovereignty" and "broad autonomy" also seem to contemplate something too restricted to be of any aid to his argument. The anomaly runs through his analysis, but he seemed unaware of it.

The Constitution doesn’t support the argument, so where do those core concepts — the requirement of an updated formula, and equal sovereignty — come from? They come from irrelevant comments — dicta in legalese — in an earlier opinion by Chief Justice Roberts.

He wrote for the majority in Northwest Austin Utility District v. Holder. The plaintiff utility district had requested, using the Act’s "bail-out" clause, to remove itself from the coverage of VRA §5. The lower court found it to be ineligible to use that procedure. The utility district appealed, again requesting bailout, but arguing in the alternative that the preclearance requirement of §5 was unconstitutional. The Court held that "the district is eligible under the Act to seek bailout." That decided the case: "We therefore reverse, and do not reach the constitutionality of §5." Perhaps "we" did not reach it, but Roberts did; he went on at length about the dubious constitutionality of the Act. (He was so eager to do so that he began his opinion with this: "The plaintiff in this case is a small utility district raising a big question—the constitutionality of §5 of the Voting Rights Act.")

He anticipated his claim in Shelby County that the coverage criteria were obsolete: "These improvements [in minority voting] are no doubt due in significant part to the Voting Rights Act itself, and stand as a monument to its success. . . . It may be that these improvements are insufficient and that conditions continue to warrant preclearance under the Act. But the Act imposes current burdens and must be justified by current needs." No authority was cited.

Then there was the matter of states’ rights: "The Act also differentiates between the States, despite our historic tradition that all the States enjoy ‘equal sovereignty.’ " For that proposition, he cited United States v. Louisiana (1960), in which the state asserted sovereignty as a defense to a claim by the federal government (and lost), and Texas v. White (1869), which referred to state sovereignty under the Articles of Confederation. One might sense a reach. The Chief Justice liked those inapposite sources so much that he resorted to them again in Shelby County : "Not only do States retain sovereignty under the Constitution, there is also a "fundamental principle of equal sovereignty" among the States, citing again, Louisiana and White , along with Northwest Austin and, so no one would miss the point, italicizing "equal."

However, the claim that equal treatment is required is as unsupported as is sovereignty. The Court held in South Carolina v. Katzenbach (1966), while ruling on a challenge to the constitutionality of the VRA, that "The doctrine of the equality of States . . . does not bar this approach [of §4], 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." (The dissent in Shelby County pointed out examples of unequal treatment). 

In Shelby, Roberts attempted to avoid that ruling by, again, citing an irrelevant decision and himself: "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" He acknowledged that Coyle concerned the admission of new States, and that Katzenbach had limited the principle of equality to that context. Nevertheless, "as we made clear in Northwest Austin , the fundamental principle of equal sovereignty remains highly pertinent in assessing subsequent disparate treatment of States." Justice Roberts doesn’t give up easily but, whether or not one attaches "sovereignty" to the claim, unequal treatment doesn’t invalidate VRA §§4 and 5.

The extent to which Shelby County depends on Northwest Austin (and the regard Roberts has for his own views) are exemplified by this passage in Shelby, rebuking those (Ginsberg, Breyer, Sotomayor and Kagan) who dissented: "[T]he dissent analyzes the question presented as if our decision in Northwest Austin never happened." By "decision," he means his dicta. "For example, the dissent refuses to consider the principle of equal sovereignty, despite Northwest Austin's emphasis on its significance." It ignored "the fact that Northwest Austin requires an Act's ‘disparate geographic coverage’ to be ‘sufficiently related’ to its targeted problems . . . ." The dissent also overlooked Austin’s emphasis on the progress made: "Although Northwest Austin stated definitively that ‘current burdens’ must be justified by ‘current needs,’ . . . the dissent argues that the coverage formula can be justified by history. . . ." Weren’t you listening? I stated definitively.

The Tenth Amendment Center advocates nullification of federal laws by state legislatures. The Chief Justice and his allies practice nullification on the Supreme Court.

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11. The precedential status of a plurality opinion does not seem to be clear. The arguments about the renewal of the VRA seem to have taken the plurality opinion in as the law.

12. The memo, Roberts to the Attorney General, "Voting Rights Act: Section 2," is available at https://www.archives.gov/news/john-roberts/accession-60-88-0498/030-black-binder1/folder030.pdf

13. Memo, February 23, 1982, John Roberts to Wm. Brad Reynolds, Assistant Attorney General, Civil Rights Division: "Material To Be Delivered Today To Senators on Voting Rights Act." It is included in
https://www.archives.gov/news/john-roberts/accession-60-88-0498/016-voting-rights/folder016.pdf#page=12