A three judge panel of the D.C. Circuit Court of Appeals has upheld the constitutionality of Section 5 of the Voting Rights Act, which has been under increasing legal challenge over the last few years. That section requires jurisdictions with a history of minority voter suppression — mostly Southern states and localities that used a variety of laws to suppress the black vote for a century after the Civil War — to get approval from the DOJ or a federal court before enacting any changes to their voting rules that could affect minority voters disproportionately.
More and more states have been challenging Section 5, claiming that it is an overreach of federal power and that it is no longer necessary (of course, those states have also been making the argument that it was never necessary since it was passed almost 50 years ago). And the Supreme Court has pretty clearly signaled that they question the constitutionality of that section, though they haven’t ruled directly on the question.
In Northwest Austin Municipal Utility District No. 1 v. Holder in 2009, the Supreme Court declined to explicitly address the constitutionality of Section 5 because the Texas district was able to be exempted from its requirements by a federal court. 8 of the 9 justices agreed not to make a broad ruling on the constitutionality of Section 5, while — unsurprisingly — Clarence Thomas wanted the court to strike it down entirely. But the court also signaled that they might well overturn Section 5 entirely if a case came along that required it.
The historic accomplishments of the Voting Rights Act are undeniable. When it was first passed, unconstitutional discrimination was rampant and the “registration of voting-age whites ran roughly 50 percentage points or more ahead” of black registration in many covered States. Today, the registration gap between white and black voters is in single digits in the covered States; in some of those States, blacks now register and vote at higher rates than whites. Similar dramatic improvements have occurred for other racial minorities. “[M]any of the first generation barriers to minority voter registration and voter turnout that were in place prior to the [Voting Rights Act] have been eliminated.”
At the same time, §5, “which authorizes federal intrusion into sensitive areas of state and local policymaking, imposes substantial ‘federalism costs.’ ”. These federalism costs have caused Members of this Court to express serious misgivings about the constitutionality of §5.
Section 5 goes beyond the prohibition of the Fifteenth Amendment by suspending all changes to state election law—however innocuous—until they have been precleared by federal authorities in Washington, D. C. The preclearance requirement applies broadly, and in particular to every political subdivision in a covered State, no matter how small.
Some of the conditions that we relied upon in upholding this statutory scheme in Katzenbach and City of Rome have unquestionably improved. Things have changed in the South. Voter turnout and registration rates now approach parity. Blatantly discriminatory evasions of federal decrees are rare. And minority candidates hold office at unprecedented levels.
These improvements are no doubt due in significant part to the Voting Rights Act itself, and stand as a monument to its success. Past success alone, however, is not adequate justification to retain the preclearance requirements. 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.
The Act also differentiates between the States, despite our historic tradition that all the States enjoy “equal sovereignty.” Distinctions can be justified in some cases. “The doctrine of the equality of States … does not bar … remedies for local evils which have subsequently appeared.” But a departure from the fundamental principle of equal sovereignty requires a showing that a statute’s disparate geographic coverage is sufficiently related to the problem that it targets.
These federalism concerns are underscored by the argument that the preclearance requirements in one State would be unconstitutional in another. Yet considerations of race that would doom a redistricting plan under the Fourteenth Amendment or §2 seem to be what save it under §5”. Additional constitutional concerns are raised in saying that this tension between §§2 and 5 must persist in covered jurisdictions and not elsewhere.
The evil that §5 is meant to address may no longer be concentrated in the jurisdictions singled out for preclearance. The statute’s coverage formula is based on data that is now more than 35 years old, and there is considerable evidence that it fails to account for current political conditions. For example, the racial gap in voter registration and turnout is lower in the States originally covered by §5 than it is nationwide.
Despite this signal from the Supreme Court — a unanimous ruling, in essence, joined even by all the liberal justices — the D.C. Circuit Court of Appeals has upheld those requirements by a 2-1 vote in Shelby County, Alabama v Holder (see full ruling here). Some relevant portions:
Guided by these principles, we begin with Northwest Austin’s first question: Are the current burdens imposed by section 5 “justified by current needs”? The Supreme Court raised this question because, as it emphasized
and as Shelby County argues, the conditions which led to the passage of the Voting Rights Act “have unquestionably
improved[,]… no doubt due in significant part to the Voting Rights Act itself.” Congress also recognized this
progress when it reauthorized the Act, finding that “many of the first generation barriers to minority voter registration and voter turnout that were in place prior to the [Voting Rights Act] have been eliminated.” The dissent’s charts nicely display this progress. Racial disparities in voter registration and turnout have “narrowed
considerably” in covered jurisdictions and are now largely comparable to disparities nationwide. Increased minority
voting, in turn, has “resulted in significant increases in the number of African-Americans serving in elected offices.” For example, in the six states fully covered by the 1965 Act, the number of African Americans serving in
elected office increased from 345 to 3700 in the decades since 1965.
But Congress found that this progress did not tell the whole story. It documented “continued registration and
turnout disparities” in both Virginia and South Carolina. Virginia, in particular, “remain[ed] an outlier: although 71.6 percent of white, non-Hispanic voting age residents registered to vote in 2004, only 57.4 percent of black voting age residents registered, a 14.2-point difference. Also, 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.’ ”
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. It
considered, among other things, six distinct categories of evidence: (1) 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, Congress heard evidence that case-by-case section 2 litigation was inadequate to remedy the racial discrimination in voting that persisted in covered jurisdictions…
Consideration of this evidence is especially important given that so-called “second generation” tactics like
intentional vote dilution are in fact decades-old forms of gamesmanship. That is, “as African Americans made progress
in abolishing some of the devices whites had used to prevent them from voting,” both in the late nineteenth century and again in the 1950s and 1960s, “[o]fficials responded by adopting new measures to minimize the impact of black reenfranchisement.” These measures—“well-known” tactics such as “ ‘pack[ing]’ ” minorities into a single district, spreading minority voters thinly among several districts, annexing predominately white suburbs, and so on—were prevalent “forms of vote dilution” then, and Congress determined that these persist today. Specifically, Congress found that while “first generation barriers”—flagrant attempts to deny access to the polls that were pervasive at the time of Katzenbach—have diminished, “second generation barriers” such as vote dilution have been “constructed to prevent minority voters from fully participating in the electoral process.” Although such methods may be “more subtle than the visible methods used in 1965,” Congress concluded that their “effect and results are the same, namely a diminishing of the minority community’s ability to fully participate in the electoral process and to elect their
preferred candidates of choice.”
Having resolved these threshold issues, we return to the basic question: Does the legislative record contain 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? Reviewing the record ourselves and focusing on the evidence most probative of ongoing constitutional violations, we believe it does.
To begin with, the record contains numerous “examples of modern instances” of racial discrimination in voting. Just a few recent examples:
• Kilmichael, Mississippi’s abrupt 2001 decision to cancel an election when “an unprecedented number” of African Americans ran for office;
• Webster County, Georgia’s 1998 proposal to reduce the black population in three of the education board’s five
single-member districts after the school district elected a majority black school board for the first time;
• Mississippi’s 1995 attempt to evade preclearance and revive a dual registration system “initially enacted in 1892 to disenfranchise Black voters” and previously struck down by a federal court;
• Washington Parish, Louisiana’s 1993 attempt to reduce the impact of a majority-African American district by
“immediately creat[ing] a new at-large seat to ensure that no white incumbent would lose his seat,”;
• Waller County, Texas’s 2004 attempt to reduce early voting at polling places near a historically black university and its threats to prosecute students for “illegal voting,” after two black students announced their intent to run for office.
The legislative record also contains examples of overt hostility to black voting power by those who control the
electoral process. In Mississippi, for instance, state legislators opposed an early 1990s redistricting plan that would have increased the number of black majority districts, referring to the plan publicly as the “black plan” and privately as the “nigger plan.” In Georgia, the state House Reapportionment Committee Chairman “told his colleagues on numerous occasions, ‘I don’t want to draw nigger districts.” The district court pointed to numerous additional examples of intentional discrimination in the legislative record.
In addition to these examples of flagrant racial discrimination, several categories of evidence in the record support Congress’s conclusion that intentional racial discrimination in voting remains so serious and widespread in covered jurisdictions that section 5 preclearance is still needed.
I would argue that the experience of the last year and a half, after Republicans took control of most state legislatures and immediately began passing laws to make it harder to vote and to register to do so, all of which will impact minorities disproportionately, is evidence that Section 5 is still needed. Expect this case to be appealed, of course, since the Supreme Court has already signaled a willingness to overturn it. And that scares me.