Justice Watch: Scrapping Section 4(b) of the Voting Rights Act: Not the compromise that we want

THE COURT IN ACTION: Responding to questions from Justices Ginsburg and Kennedy, Solicitor General Donald Verrilli explains why Section 2 of the Voting Rights Act, which allows the government to sue after a change in election procedures already is in effect, is not sufficient.

By Franita Tolson, Betty T. Ferguson Professor of Voting Rights at Florida State University College of Law

After the oral argument in Shelby County v. Holder, it appears that the Voting Rights Act, in its current form, is in peril. I make this observation with some reservation, as we found ourselves in a similar predicament in 2009 after the arguments in NAMUDNO v. Holder. Yet Congress never heeded the Supreme Court’s warnings about the constitutionality of the Act, placing the current challenge in a different posture than the litigation four years ago.

In NAMUDNO, the Court expressed extreme reservations about Section 5 of the Act, and argued that its selective coverage discriminates between the equally sovereign states. Section 5’s preclearance mechanism ensures that those states that historically have been the worst offenders, as determined by the coverage formula in Section 4(b), will not abridge the right to vote on the basis of race. To avoid discriminatory changes, Section 5 requires these jurisdictions to preclear their proposed election laws with the federal government before the laws can go into effect. Section 4(b)’s coverage formula was heavily criticized during the argument today because it has not changed in four decades: those jurisdictions that used a test or device as a prerequisite to voting as of November 1964, and had less than 50 percent voter registration or turnout in the 1964 Presidential election are subject to preclearance. Later reauthorizations of the Voting Rights Act extended Section 4(b) to the 1968 and 1972 Presidential elections, but the end result is that 9 states, mostly in the deep South, are covered based on a 40- year-old formula.

Sadly, it is this reservation about treating similarly situated states differently, based on an “outdated” formula, that might signal danger for at least part of the Voting Rights Act. Like the 2009 NAMUDNO decision, perhaps the Court will come to a compromise, but instead of “saving” the statute as it did four years ago through creative statutory interpretation, the compromise could invalidate the coverage formula rather than the preclearance regime. This “compromise” would allow the Court to save face by upholding Section 5, the crown jewel of a landmark civil rights statute; it would placate the more conservative wing of the Court gunning for the demise of the preclearance regime; and it would force Congress to update the coverage formula. Justice Kennedy, likely the critical swing vote, seemed open to the idea of invalidating Section 4(b) during the oral argument, noting that “if Congress is going to single out separate states…it should do it by name.” Although invalidating the coverage formula would, in essence, preserve the preclearance formula of Section 5, the practical result would be to render Section 5 nugatory because there would be no formula in place to determine which jurisdictions are subject to coverage.

Such a “compromise” also ignores that Section 4(b) is constitutionally permitted. In 1966, the Court upheld this provision, despite its over and under-inclusiveness, because the record of discrimination present in covered jurisdictions justified the distinction that Congress had drawn between the states. Congress, in renewing the Act in 2006, also compiled a record of discrimination in covered jurisdictions, yet such evidence did not seem to persuade conservative justices during today’s arguments. Justice Scalia, at one point, referred to Section 5 as a “racial entitlement” rather than, as Justice Sotomayor pointedly reminded him, a remedy designed to protect the right to vote.

Framing Section 5 as a “racial entitlement” rather than a remedy, however, is an attempt to emphasize that covered and non-covered jurisdictions are similar in important respects, notably in voter registration and turnout, yet are treated differently under the Act. What this argument overlooks is that covered jurisdictions continue to violate the terms of the Voting Rights Act in margins that far exceed that of non-covered jurisdictions. For this reason, the focus on the coverage formula as the source of constitutional concern is somewhat misleading. Congress imposed the formula as a shorthand way to capture the worst offenders, and if the incidence of Section 2 litigation in covered jurisdictions is any indication, Section 4(b) still does a good job of singling out the troublemakers. As Justice Kagan observed during the oral argument today, under any formula that Congress could devise, Shelby County would still be covered under Section 5.

Because of its pervasive record of Section 5 violations, Shelby County may very well be the wrong plaintiff to challenge the coverage formula of Section 4(b). Nevertheless, the arguments today revealed that Section 4(b) is very much on the table as a potential casualty should the justices try to strike a bargain in order to preserve Section 5. The sense that one is getting a bargain is illusory; in all practical terms, the end of Section 4(b) means the end of preclearance.