U.S. Supreme Court Invalidates Key Provision of Voting Rights Act of 2006

U.S. Supreme Court Building
U.S. Supreme Court Building

 

As widely reported, the U.S. Supreme Court in Shelby County v. Holder recently held unconstitutional a key provision of the Voting Rights Act of 2006.[1]

That provision, section 4, which was part of the original statute enacted in 1965, established a formula to determine which states were subject to pre-clearance by the U.S. Department of Justice or a three-judge federal district court of any changes to the state’s voting procedures. Such pre-clearance approval could be obtained only if the proposed change was shown to have neither “the purpose [nor] the effect of denying or abridging the right to vote on account of race or color.”

Section 4’s formula, as amended in 1975, established as “covered jurisdictions” those States or political subdivisions that had maintained a test or device (literacy or knowledge tests, good moral character requirements, vouchers from registered voters, providing English-only voting material s in places where over 5% of voting-age citizens spoke a language other than English) as a prerequisite to voting as of November 1, 1972, and had less than 50% voter registration or turnout in the 1972 presidential election.

Majority Opinion

Chief Justice John Roberts
Chief Justice John Roberts

The opinion for the Court by Chief Justice John Roberts (joined by Justices Scalia, Kennedy, Thomas and Alito) held that this formula imposed current burdens on the covered jurisdictions that were not justified by current needs. Section 4, therefore, violated basic principles of equal state sovereignty or autonomy over voting and was unconstitutional. This conclusion was reached even though the Chief Justice acknowledged that “voting discrimination still exists.”

The fundamental factual premise of the opinion was the assertion that the U.S. had significantly changed in racial discrimination in voting since 1965. As the Chief Justice said, “Our country has changed, and while any racial discrimination in voting is too much, Congress must ensure that the legislation it passes to remedy that problem speaks to current conditions.”[2]

Dissenting Opinion

Associate Justice Ruth Bader Ginsburg
Associate Justice Ruth Bader Ginsburg

Justice Ginsburg, who was joined by Justices Breyer, Sotomayor and Kagan, issued a stinging dissenting opinion.

She emphasized that the Fifteenth Amendment to the Constitution granted to Congress, not the courts, the power to enact legislation to enforce the Amendment’s  ban on racial discrimination in voting. Moreover, the Supreme Court itself repeatedly has held that Congress’ judgment on such matters warrants “substantial deference” and that congressional power is “at its height” when it so acts.

As a result, the proper question for the courts is whether Congress had employed “rational means” in re-enacting section 4 as part of the 2006 Act. According to the dissenting opinion, section 4 meets that test. There was abundant evidence of continued racial discrimination in voting before Congress when it adopted the 2006 Act, and Congress acted with “great care and seriousness” in so doing.

Indeed, Justice Ginsburg stressed, the formula in section 4 is subject to statutory provisions “allowing jurisdictions to ‘bail out’ of preclearance, and for court-ordered “bail ins.” These mechanisms were seen by Congress as “effective means of adjusting the [Act’s] coverage over time.” Therefore, the dissent asserted it is erroneous for the Court’s majority to see the Act as “static, unchanged since 1965. Congress designed the [statute] to be a dynamic statute, capable of adjusting to changing circumstances.”

In short, the dissent says, “Hubris is a fit word for today’s demolition of the [statute].” The majority of the Court “errs egregiously by overriding Congress’ decision.”

Conclusion

The key failure of the majority opinion for me is its narrow focus on the coverage formula in section 4 instead of looking at how the formula works in the statute as a whole. As Justice Ginsburg and previously the D.C. Circuit emphasized, the coverage formula has to be seen with the statutory mechanisms for adjusting coverage to new circumstances through the bail-in or bailout provisions. It is dynamic and capable of adjusting to new circumstances.

Indeed, the Supreme Court did just that in 2009 in Northwest Austin Municipal Utility District No. One v. Holder. The Court’s opinion by Chief Justice Roberts provided a broad reading of the bail out provision to allow the political subdivision in the case to bailout from coverage under sections 4 and 5.


[1] The Supreme Court opinions in Shelby County are available online. Prior posts have discussed the original Voting Rights Act of 1965, the Voting Rights Act of 2006, a prior Supreme Court decision on the latter statute (Northwest Austin), the D.C. Circuit’s decision in Shelby County and the recent Supreme Court oral argument in that case.

[2] Justice Thomas issued a concurring opinion that section 5 of the Act was unconstitutional as well.

 

The Voting Rights Act of 1965

On February 27, 2013, the U.S. Supreme Court heard oral arguments in a case challenging the constitutionality of an important provision of the Voting Rights Act of 2006.[1] This provision extended for 25 years a requirement in section 5 of the original Voting Rights Act of 1965 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.[2]

Before we review that oral argument, we will examine in separate posts four predicates for that argument.[3] This post will discuss the first of these predicates–the relevant substance of the original Voting Rights Act of 1965.[4]

This 1965 statute (as well as the 2006 statute) was enacted pursuant to Section 2 of the Fifteenth Amendment to the U.S. Constitution that provides, “The Congress shall have power to enforce this article by appropriate legislation.” That amendment, which was ratified after the Civil War in 1870, states in 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”

LBJ signing VRA65

The Voting Rights Act of 1965 is seen as a major accomplishment of the Congress and President Lyndon B. Johnson. (The photo to the left shows President Johnson signing the statute; immediately behind him is Rev. Dr. Martin Luther King, Jr.) It was adopted as a result of congressional recognition that case-by-case litigation over racial voting discrimination was slow, expensive and ineffective and that a stature was needed “to cure the problem of voting discrimination” and “rid the country of racial discrimination in voting,”  (South Carolina v. Katzenbach, 383 U.S. 301, 313, 315 (1966).)

The 1965 Act combined a permanent, case-by-case enforcement mechanism with a set of more stringent, temporary remedies designed to target those areas of the country where racial discrimination in voting was concentrated.

Section 2, the Act’s main permanent provision, forbids any “standard, practice, or procedure” that “results in a denial or abridgment of the right of any citizen of the United States to vote on account of race or color.” (42 U.S.C. § 1973(a).) Applicable nationwide, section 2 enables individuals to bring suit against any state or jurisdiction to challenge voting practices that have a discriminatory purpose or result. (See Thornburg v. Gingles, 478 U.S. 30, 35 (1986).)

Section 5 of the statute and the focus of the current case before the Supreme Court only applies to certain “covered jurisdictions” and “prescribes remedies . . . which go into effect without any need for prior adjudication.” (Katzenbach, 383 U.S. at 327-28.) Section 5 suspends “all changes in state election procedure until they [are] submitted to and approved by a three-judge Federal District Court in Washington, D.C., or the [U.S.] Attorney General.” (Northwest Austin Municipal Utility District No. One v. Holder, 129 S. Ct. 2504, 2509 (2009),

A “covered jurisdiction” seeking to change its voting laws or procedures must either submit the change to the Attorney General or seek preclearance directly from the three-judge court. If such a jurisdiction opts for the former and if the Attorney General lodges no objection within 60 days, the proposed law can take effect.(42 U.S.C. § 1973c(a).) But if the Attorney General lodges an objection, the submitting jurisdiction may either request reconsideration, (28 C.F.R. § 51.45(a)), or seek a de novo  determination from the three-judge district court. (42 U.S.C. § 1973c(a).)

Either way, preclearance may be granted only if the jurisdiction demonstrates that the proposed change to its voting law neither “has the purpose nor . . . the effect of denying or abridging the right to vote on account of race or color.” (Id.) This provision “preempted the most powerful tools of black disenfranchisement ,” resulting in “undeniable” improvements in the protection of minority voting rights. (Northwest Austin, 129 S. Ct. at 2509. 2511.)

The “covered jurisdictions” subject to section 5 were identified in section 4(b), as originally enacted, as any state or political subdivision of a state that “maintained a voting test or device as of November 1, 1964, and had less than 50% voter registration or turnout in the 1964 presidential election.” (Voting Rights Act of 1965, Pub. L. No. 89-110, § 4(b), 79 Stat. 437, 438.) Congress chose these criteria carefully because it knew precisely which states it sought to cover, those six southern states with the worst historical records of racial discrimination in voting: Alabama, Georgia, Louisiana, Mississippi, South Carolina, and Virginia.

In so doing, Congress recognized that these criteria for determining “covered jurisdictions” might have to be adjusted over time.

  • First, as it existed in 1965, section 4(a) allowed jurisdictions to earn exemption from coverage by obtaining from a three-judge district court a declaratory judgment that in the previous five years (i.e., before they became subject to the Act) they had used no test or device “for the purpose or with the effect of denying or abridging the right to vote on account of race or color.” (1965 Act § 4(a).) This so-called “bailout” provision, as subsequently amended, addresses potential over-inclusiveness of section 5, allowing jurisdictions with clean records to terminate their section 5 pre-clearance obligations.
  • Second, section 3(c) authorizes federal courts to require pre-clearance by any non-covered state or political subdivision found to have violated the Fourteenth or Fifteenth Amendments. (42 U.S.C. § 1973a(c).) Specifically, courts presiding over voting discrimination suits may “retain jurisdiction for such period as [they] may deem appropriate” and order that during that time no voting change take effect unless either approved by the court or unopposed by the Attorney General. (Id.) This judicial “bail-in” provision addresses the formula’s potential under-inclusiveness.

In South Carolina v. Katzenbach, the Supreme Court sustained the constitutionality of section 5, holding that its provisions “are a valid means for carrying out the commands of the Fifteenth Amendment.”  As originally enacted in 1965, section 5 was to remain in effect for five years. Congress subsequently renewed these temporary provisions, including sections 4(b) and 5, in 1970 (for five years), in 1975 (for seven years), and in 1982 (for twenty-five years).[5] The Supreme Court also sustained the constitutionality of each extension through 2007. (Georgia v. United States, 411 U.S. 526 (1973); City of Rome v. United States, 446 U.S. 156 (1980); Lopez v. Monterey County, 525 U.S. 266 (1999).)

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[1] The 2006 statute’s correct title is the Fannie Lou Hamer, Rosa Parks, Coretta Scott King Voting Rights Act Reauthorization and Amendments Act of 2006.

[2] The states now subject to section 5 are Alabama, Alaska, Arizona, Georgia, Louisiana, Mississippi, South Carolina, Texas and Virginia.

[3] The other predicates to be examined in separate posts are the Voting Rights Act of 2006; the 2009 Supreme Court decision regarding the 2006 statute (Northwest Austin Municipal Utility District No. One v. Holder); and the 2012 decision of the U.S. Court of Appeals for the D.C. Circuit, 2 to 1, upholding the constitutionality of the 2006 statute in the case now pending in the Supreme Court. (Shelby County, Alabama v. Holder.)

[5] The 1982 extension also made the provision for “bailout” from section 5 restrictions substantially more permissive.