Shelby County v. Holder, or, The more things change, the more they stay the same

THE COURT IN ACTION: We all know what Justice Scalia said about "racial entitlement."  Now, hear also how Solicitor General Donald Verrilli responds:



By Gilda Daniels, Associate Professor of Law at University of Baltimore School of Law

One of the key discussions in today’s Shelby County v. Holder United States Supreme Court argument, a case challenging the constitutionality of Section 5 of the Voting Rights Act, was whether the “covered jurisdictions” still warrant federal oversight for voting changes.  Section 5 of the Voting Rights Act of 1965 requires “covered jurisdictions” (nine whole states-primarily in the South- and parts of seven others) to obtain approval from the federal government before it can implement any voting changes.  In the Shelby case, one of those jurisdictions argued that the coverage formula was outdated and that Congress should not have used it when it reauthorized Section 5 in 2006.  Bert Rein, who argued the case on behalf of Shelby County, started his argument stating “the South has changed.”  However, as Justice Sotomayor pointed out to Rein, “…some portions of the South have changed, your county pretty much hasn’t.”

Shelby County and other Section 5 covered jurisdictions, in spite of a changing South, continue to have more voting rights infractions than other parts of the country.  While Rein argued that the South no longer had poll taxes and literacy tests and thus should not be subject to Section 5, at least four justices seemed to disagree, arguing that “under any formula (standard) that Congress would devise Alabama would be covered”; so, would most, if not all of its counterparts.  At least four other justices seemed to argue that if other states have worse records in voter turnout and registration then “why wasn’t it incumbent on Congress ..to make a new determination of coverage?  Maybe the whole country should be covered,” Justice Alito pondered.

What is interesting to me is the assumption that because there are other wrongdoers that are not covered, Alabama, and states like it, should not be either.  Essentially, they obliquely argue that if those other states get to have worse records than Alabama on voter registration and turnout then the federal government should not “punish” it with Section 5.  It is perplexing to me how this is a viable states’ rights argument.  States do not have a right to act badly or to discriminate, particularly in the fundamental right of voting.  Congress has the constitutional power to propose and enforce legislation that protects citizens from discrimination.  Interestingly enough, Shelby County neither addressed nor attempted to defend its Section 5 record of noncompliance and discriminatory voting practices at any point during the argument.  It couldn’t.  It merely argued that “the South had changed.”

Everyone agrees that the South, indeed, has changed and progress in the area of voting has been made.  However, this progress has been made because of, not in spite of, the Voting Rights Act.  Section 5 is a preventative measure that deters discrimination and ensures that jurisdictions do not implement laws that discriminate against its minority citizens.  Remedial measures, like Section 5, even if considered extraordinary, are needed to protect the extraordinary democratic right to vote.  Section 5 is needed and covered jurisdictions require oversight to ensure that minority voting rights are not infringed upon. While some states may indeed have worse records, the protection that Section 5 provides in covered jurisdictions, like Alabama, is warranted. The assertion that some states are worse is not a rationale to eliminate Section 5; it provides a strong argument for its extension.

Finally, some justices had concerns that Section 5’s oversight would last “in perpetuity.”  Justice Scalia asserted that Section 5 served as a “perpetuation of racial entitlement(s)." Voting is an American entitlement and if Congress deemed it necessary to provide oversight in covered jurisdictions to protect that entitlement, I would think it very difficult for the Supreme Court to say otherwise, even if things have changed. 

Gilda R. Daniels is Associate Professor of Law at the University of Baltimore School of Law and the Former Deputy Chief of the US Department of Justice Voting Section.

Shelby County and NAMUNDO: The Continuing Importance of Section 5

THE COURT IN ACTION: In this excerpt from the oral argument, Bert Rein, counsel for Shelby County, is questioned  closely by Justices Sotomayor, Kagan, and Kennedy.  He gets a friendlier question from Justice Alito.

by William Yeomans, Fellow in Law and Government at American University Washington College of Law

Today’s argument drove home the extent to which four Republican-appointed members of the Court are driven by ideology to eliminate our nation’s most effective protection for minority voting rights.  The big question remaining is whether the fifth Republican-appointed Justice, Anthony Kennedy, is now ready to join the crusade.  In 2009, in NAMUDNO v. Holder, Justice Kennedy apparently was not prepared to add to his legacy the uncomfortable headline that he provided the decisive vote to strike down the preclearance requirement of the Voting Rights Act.  Based on today’s argument, he remains the Act’s best hope.

The central contention of the case is that the Act’s formula for determining which jurisdictions must preclear their election changes with the Attorney General or a three-judge court is outdated, and whether Congress exceeded its power when it reauthorized it in 2006.  A decision striking down the formula would render the preclearance requirement unenforceable.

The argument opened with Justice Sotomayor, the Act’s most vocal defender, asking Bert Rein, Shelby County’s counsel, why the Court should even entertain his case.  The case was filed as a facial challenge to the formula for determining which jurisdictions would be subjected to preclearance.  It does not involve a request for preclearance of an election change or a request that Shelby County be released from the preclearance requirement based on its record.  Justice Sotomayor, joined by Justices Kagan and Ginsburg, questioned why Alabama (the entire state of Alabama, including Shelby County, is covered) should be allowed to challenge the Act’s coverage formula.  They noted its continuing record of recent discrimination and opined that Alabama would be covered under any formula Congress adopted.  It was, therefore, unclear how Shelby County was harmed by the coverage formula.  To Rein’s response that the case did not involve the record of his client, but presented a facial challenge, Justice Sotomayor was quick to note that the Court disfavors facial challenges.  Most importantly, Justice Kennedy joined in the questioning on this topic and seemed interested.  Indeed, the fact that the case was filed as a facial challenge seeking a declaratory judgment on behalf of a jurisdiction with a recent history of discrimination in voting should have made it a poor candidate for a grant of Supreme Court review.  It remains possible that Justice Kennedy will have second thoughts about using this weak vehicle to undermine the Voting Rights Act.

Much of today’s argument focused on what the Court should make of the massive 15,000 page record Congress compiled in 2006.  Conservatives on the Court appear to think – quite mistakenly – that it is their task to evaluate and weigh the evidence from scratch.  Rather, it is the role of Congress to undertake legislative fact-finding and to make judgments based on the evidence.  Particularly when Congress is making predictive judgments about what is needed to overcome a history of racial discrimination, the Court should step back.  When Congress addresses race or voting pursuant to its power under the post-civil war constitutional amendments, it acts at the peak of its power.

Bizarrely, Justice Scalia turned this relationship on its head, suggesting that the Act is suspect because members of Congress voted overwhelmingly for it in the belief that it would be politically detrimental for them to vote against it.  Putting aside the difficulty of reconciling Justice Scalia’s eagerness to delve into the heads of legislators with his rigidly textualist approach to interpretation, he expressed an astonishingly disdainful view of the legislative process.  Members of Congress regularly vote for or against measures because of the political consequences of their votes.  We expect them to do that.  This sounds suspiciously like an allegation that members of Congress represented the views of their constituents.

Two things made the arguments of conservative Justices today even less persuasive.  First, since NAMUDNO, the covered jurisdictions have engaged in an orgy of vote suppression activity.  In many instances, only Section 5 has prevented massive disenfranchisement of minority voters.  Courts relied on Section 5 to block Photo ID laws passed by Texas and South Carolina from going into effect for the 2012 election.

The South Carolina experience powerfully demonstrated the continuing impact of Section 5.  During the court challenge, South Carolina offered a reinterpretation of the law to allow voters without ID to file an affidavit and to vote, which led the court to block it for 2012, but say that it could go into effect in the future.  This is precisely the kind of outcome that the preclearance requirement contemplates.

A court also relied on Section 5 to block Texas’s redistricting of its congressional, state senate, and state house seats, finding intentional discrimination.  Another court blocked Florida’s cutbacks in early voting, including its elimination of Sunday voting, both of which were disproportionately used by minority voters.  Importantly, Alabama and Mississippi have also passed photo ID laws that have yet to win Section 5 preclearance.  In short, the covered jurisdictions have behaved badly since NAMUDNO.  Republican leaders have acknowledged the Party’s deficit with minority voters.  Too often, however, rather than try to win minority voters with policy, they have sought to purge them from the electorate.  In the process, they have shown the country – and the Court, if it can see past its ideological blinders – that Congress’s judgment that Section 5 is still necessary is more than just rational or congruent and proportional – it is compelled.

The covered jurisdictions did all of this despite the deterrent effect of Section 5.  The predictive judgment of Congress in 2006 that it was too soon to release the covered jurisdictions from federal supervision was clearly correct.  And it’s exactly the kind of predictive judgment to which the Court owes considerable deference.

The second factor undermining the conservatives on the Court is the record of jurisdictions bailing out of Section 5 coverage.  The bailout record is a complete response to arguments that the coverage formula is out of date.

The Act allows jurisdictions that have maintained a clean record for ten years to file suit seeking to bail out of coverage, which means they will be relieved of the preclearance requirement.  In NAMUDNO, the Court interpreted the language of the act to allow even the smallest governmental units to sue to escape coverage.  Since NAMUDNO, 128 governmental units have won bail out in 21 successful court actions.  More are in the pipeline.  No jurisdiction that has sued for bailout has lost.  There could be no more perfect mechanism for fine-tuning the Act’s coverage.

During the argument, Solicitor General Verrilli relied on the bailout provision as a further basis for rejecting the facial challenge.  He argued that jurisdictions that were not properly included in the preclearance requirement generally could bail out.  If there were some jurisdictions that were improperly included but did not qualify for bail out, they could pursue more traditional as-applied challenges to coverage.

After today’s argument and after the extensive briefing of the case, the Court has before it compelling arguments in support of the Voting Rights Act.  If the Court strikes down the preclearance requirement, its action will be the culmination of decades of court-packing by Republican presidents who consciously selected Justices who were hostile to civil rights remedies.  In doing so, the Court will further the interests of a conservative base struggling desperately not to lose its power to an emerging diverse voting majority.  To do so, it will have to turn its back on decades of law and express disdain for Congress.  Surely, that is not the legacy Justice Kennedy envisions.

William Yeomans is a Fellow in Law and Government at American University's Washington College of Law.

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.   

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

Shelby County v. Holder and the Second-Guessing of Congress

THE COURT IN ACTION: In this excerpt from the oral argument, Debo Adegbile of the NAACP Legal Defense and Educational Fund explains why, even when a case is won under Section 2 of the Voting Rights Act, enforcing the victory often requires Section 5.  He is questioned by Justice Scalia.


by Bertrall Ross, Assistant Professor of Law at UC Berkeley School of Law

Are the temporary provisions of the Voting Rights Act a relic of the civil rights era? When Congress reauthorized the statute in 2006 for another 25 years, were the legislators simply living in the past, unwilling and perhaps unable to accept that things have changed?  Is the Supreme Court needed to educate legislators that things have indeed changed despite the voluminous and comprehensive record that Congress has compiled suggesting otherwise?  After oral argument in Shelby County v. Holder, the conservative justices’ answers to each of these questions seemed to be yes.  If a majority of the justices subscribe to this view when the Supreme Court issues its opinion, the overturning of the temporary provisions of the VRA will be a stunning repudiation of Congress and the long-standing model of deference to congressional exercises of power to enforce the Fourteenth and Fifteenth Amendments. 

In the recent past, when Congress enforced the Fourteenth Amendment to provide minorities with statutory protection against discrimination, the Court deferred.  So long as the ends were legitimate and the means were plainly adapted to that end, the Court would not second-guess congressional determinations.  This model of judicial deference applied at a time when racial and other minorities were generally considered politically marginalized.  Such deference reflected judicial trust of congressional judgments that particular groups needed protection from state actors.  When upholding the constitutionality of the Voting Rights Act in 1966 as an appropriate exercise of congressional power, the Court acknowledged the unusual and far-reaching nature of the Act, but it nonetheless deferred to congressional determinations based on a comprehensive and voluminous record that the temporary provisions were needed to achieve voter equality in particular jurisdictions.  Thirty years later, the Supreme Court described the Voting Rights Act of 1965 as a model example of congressional enforcement authority for which much deference was properly given. 

What has changed?  It seems that for at least some of the conservative justices, racial minorities are no longer the politically marginalized group of the past.  Rather, to paraphrase the concurring opinion of three conservative justices in a recent race discrimination case, racial minorities have evolved into a politically important constituency that politicians and presumably Congress needs to please – a minority constituency that is purportedly even more powerful than the majority.  Despite Congress’s compilation of an expansive record reflecting the continuing need for the temporary provisions of the VRA in the jurisdictions to which it applies, the tenor of oral argument suggests that it is unlikely that a conservatives on the Court will defer to Congress.  For Justice Scalia, this Act is simply perpetuating a “racial entitlement,” as he put it at oral argument, an entitlement that the nearly unanimous Congress that re-authorized the VRA presumably could not resist giving because of the political power of racial minorities.  Overlooked in this justification for judicial second-guessing of Congress is robust evidence that racial minorities continue to be subordinated in politics and society.       

If the conservative argument is allowed to carry the day, it will represent a critical step backwards not only for voter equality, but for racial equality, congressional authority, and the institutional legitimacy of the Supreme Court.  Any federal statute advancing the protection of racial and other minorities will be subject to close scrutiny with a presumption that it is simply the perpetuation of a group entitlement, driven by those minorities’ supposed political power.  Near unanimous congressional agreement on the need for the statute combined with a voluminous and comprehensive record supporting this assessment will not be enough to overcome this presumption.  We will edge close to a return to when judicial second-guessing of congressional judgments was the norm and a principal inhibitor of progress.  During the New Deal era of the 1930s, a non-deferential Supreme Court stood as an obstacle to economic progress on the basis of a laissez-faire conception of economics that came at the cost of its institutional legitimacy.   Now, it looks like a similarly non-deferential Supreme Court, relying on a conception of politics in which minorities are more politically powerful than the majority, may decide to stand as an obstacle to continued progress on racial equality.

Bertrall Ross is an Assistant Professor of Law and an Executive Committee Member of the Thelton E. Henderson Center for Social Justice at the UC Berkeley School of Law. 

Day of argument, analysis and action on the Voting Rights Act

Today the Supreme Court hears oral arguments in a challenge to a crucial provision of the Voting Rights Act.  AFJ is ready:

• We'll be at a mass rally in front of the court to support the Voting Rights Act. We hope you’ll join us.
• AFJ President Nan Aron will be speaking at the rally. Check back here at 10:30 a.m. for the text of her remarks.
• Later this afternoon, four legal scholars will provide comprehensive analysis of the arguments here at Justice Watch.
• On Friday, when the Supreme Court releases audio of the arguments, we'll add excerpts.

Read more about the Voting Rights Act on our website here.

Help protect the Voting Rights Act – and find out what happened during the arguments

One week from today, the Supreme Court hears oral arguments in a case challenging a crucial provision of the Voting Rights Act of 1965.  That provision, known as Section 5, requires certain jurisdictions to obtain advance approval from the Justice Department or a federal court before they change voting rules or procedures.

The Voting Rights Act was, and remains, the keystone in the arch of civil rights protection for people of color.  As our overview of the issues makes clear, that provision is needed now as much as ever.

FEB. 26: TWITTER TOWN HALL

On the day before the case is heard, join in a Twitter Town Hall about the Voting Rights Act.

FEB. 27: RALLY AT THE COURT

AFJ is part of a coalition working to protect the Voting Rights Act. Those efforts include a rally in front of the Supreme Court at 9:00 AM. AFJ President Nan Aron is among the scheduled speakers.  Get the details here.

FEB. 27: ANALYSIS ON JUSTICE WATCH

Then, in the hours after the argument, check back here at Justice Watch for comprehensive analysis. Legal experts will be posting here about key issues raised by the case, including:

• Whether the jurisdictions covered by Section 5 still need to be covered.
• Whether the geographic reach of the statute is justified.  Does it include too many places?  Does it include too few places?
• What has happened since the Court last took up the Voting Rights Act in 2009?
• What deference should the Court give to congressional findings of fact?

Guest bloggers include Prof. Franita Tolson of Florida State University, Prof. William Yeomans of American University and Prof. Bertrall Ross of the University of California Berkeley School of Law.

If the Supreme Court makes audio of the oral arguments available in time, we'll include relevant excerpts with the Blog posts.