On February 27, 2013, the U.S. Supreme Court heard oral arguments in a case challenging the constitutionality of an important provision in the Voting Rights Act of 2006. That provision imposes a requirement in section 5 for certain states to obtain pre-clearance from a special federal court or the U.S. Attorney General for any changes in their election laws.
Before we discuss that argument, we will review the decision that was the subject of that argument: the U.S. Court of Appeals for the D.C. Circuit’s decision in Shelby County, Alabama v. Holder upholding, 2 to 1, the constitutionality of that statute and, therefore, affirming the trial court’s judgment to the same effect.
The opinion for the majority in the Circuit Court was written by Judge David S. Tatel, a President Clinton appointee in 1994 and a University of Chicago Law School classmate and friend of mine. He was joined by Circuit Judge Thomas B. Griffith, an appointee of President George W. Bush in 2005, while the dissenter was Circuit Judge Stephen F. Williams, an appointee in 1994 by President Reagan.
Opinion of the Circuit Court
The D.C. Circuit stressed that it was “bound by fundamental principles of judicial restraint” as repeatedly proclaimed by the U.S. Supreme Court. These precedents emphasize that “Congress’s laws are entitled to a ‘presumption of validity’” and that “when Congress acts pursuant to its enforcement authority under the Reconstruction Amendments [including the Fifteenth Amendment], its judgments about ‘what legislation is needed . . . are entitled to much deference.‘“ Such deference is paid “‘out of respect for [Congress’] . . . authority to exercise the legislative power,’”and in recognition that Congress ”‘is far better equipped than the judiciary to amass and evaluate the vast amounts of data bearing upon legislative questions.’” (Citations omitted.)
Indeed, the Circuit Court quoted the Supreme Court’s opinion in deciding a prior case about this very statute when that Court emphasized that “judging the constitutionality of an Act of Congress is `the gravest and most delicate duty that [a court] is called on to perform,’'” and that “[t]he Fifteenth Amendment empowers `Congress,’ not the Court, to determine in the first instance what legislation is needed to enforce it.”
These long-standing principles of judicial restraint, I believe, are even more relevant and important, when Congress adds congressional findings of fact to the statute itself, as it did in the Voting Rights Act of 2006.
The D.C. Circuit then addressed the two concerns or questions about the Voting Rights Act of 2006 that the Supreme Court had raised in the Northwest Austin case.
First, are the current burdens imposed by section 5 “justified by current needs”?
Even though there has been significant progress in combatting racial discrimination in voting, the D.C. Circuit stressed that “Congress [had] found that this progress did not tell the whole story.
It documented ‘continued registration and turnout disparities’ in both Virginia and South Carolina.” In addition, “although the number of African Americans holding elected office had increased significantly, they continued to face barriers to election for statewide positions. Congress found that not one African American had yet been elected to statewide office in Mississippi, Louisiana, or South Carolina. In other covered states, “`often it is only after blacks have been first appointed to a vacancy that they are able to win statewide office as incumbents.'”
The D.C. Circuit also noted that “Congress considered other types of evidence that, in its judgment, ‘show[ed] that attempts to discriminate persist and evolve, such that Section 5 is still needed to protect minority voters in the future.’ It heard accounts of specific instances of racial discrimination in voting. It heard analysis and opinions by experts on all sides of the issue.”
Congress considered six distinct categories of evidence, according to the D.C. Circuit: “(1) [U.S.] Attorney General objections issued to block proposed voting changes that would, in the Attorney General’s judgment, have the purpose or effect of discriminating against minorities; (2) ‘more information requests’ issued when the Attorney General believes that the information submitted by a covered jurisdiction is insufficient to allow a preclearance determination; (3) successful lawsuits brought under section 2 of the Act; (4) federal observers dispatched to monitor elections under section 8 of the Act; (5) successful section 5 enforcement actions filed against covered jurisdictions for failing to submit voting changes for preclearance, as well as requests for preclearance denied by the United States District Court for the District of Columbia; and (6) evidence that the mere existence of section 5 deters officials from even proposing discriminatory voting changes.”
Finally, said the D.C. Circuit, “Congress heard evidence that case-by-case section 2 litigation was inadequate to remedy the racial discrimination in voting that persisted in covered jurisdictions.”
The Circuit court then carefully reviewed the legislative record and concluded that it contained “sufficient probative evidence from which Congress could reasonably conclude that racial discrimination in voting in covered jurisdictions is so serious and pervasive that section 2 litigation remains an inadequate remedy.”
Second, does the congressional record support the requisite ‘showing that the statute’s disparate geographic coverage is sufficiently related to the problem that it targets?
In addressing this issue, the Circuit court emphasized that the statute’s disparate geographic coverage depended not only on section 4(b)’s formula, but on the statute as a whole, including its mechanisms for bail-in and bailout. Therefore, for this court the question was whether the statute as a whole, not just the section 4(b) formula, ensures that jurisdictions subject to section 5 are those in which unconstitutional voting discrimination is concentrated.
After reviewing in detail the congressional record on this issue and the total structure of the statute, including bailout and bail-in, the D.C. Circuit concluded that the statute “continues to single out the jurisdictions in which discrimination is concentrated.”
The dissenting opinion of Judge Williams concluded that the formula in section 4(b) of the statute was unconstitutional because the significant burdens it imposed on “covered jurisdictions” were not “congruent and proportional” to the problems of racially discriminatory voting laws that it targeted.