In 2006, Congress reauthorized the Voting Rights Act of 1965 (“VRA”) for 25 years. Section 5 of the VRA requires certain “covered” jurisdictions to obtain federal preclearance before making any alterations to their election laws. Section 4(b) sets forth a formula for determining if a jurisdiction is covered. Petitioner Shelby County, Alabama, a covered jurisdiction, asserts that the preclearance regime exceeds Congress’s power to enforce the Fourteenth and Fifteenth Amendments, and violates the Tenth Amendment and Article IV. Other covered jurisdictions, amicihere, complain that the VRA’s restrictions subject them to a double standard and infringe on their state sovereignty rights. Attorney General Holder, the Respondent, contends that these restrictions are necessary to fight regression among states with a history of voting rights abuses. Shelby County argues that current conditions no longer justify preclearance at all, and that the coverage formula is antiquated in any case. Holder argues that preclearance remains a valid exercise of congressional power and that the formula, in combination with the VRA’s “bailout” provision, creates a coverage regime that meets the requirements of the Constitution.
Whether Congress’s decision in 2006 to reauthorize Section 5 of the VRA under the pre-existing coverage formula of Section 4(b) exceeded its authority under the Fifteenth Amendment and thus violated the Tenth Amendment and Article IV of the United States Constitution.
Whether Congress’s twenty-five year extension of the Voting Rights Act exceeded its power to enforce the protections of the Fourteenth and Fifteenth Amendments.
In 1965, Congress enacted the VRA “to banish the blight of racial discrimination in voting.” See Brief for Petitioner, Shelby County at 2. The VRA put special restrictions on jurisdictions that had a “test or device prohibited by Section 4(a)” of the VRA, and in which less than half of the eligible residents were registered to vote, or less than half of those people actually voted in the 1964 Presidential election. See id. at 2–3. These jurisdictions included Alabama, Alaska, Georgia, Louisiana, Mississippi, South Carolina, Virginia, and parts of North Carolina, Arizona, Idaho, and Hawaii. See id. at 3. Under Section 5, covered jurisdictions are required to seek approval by the Attorney General (“AG”) or a three-judge D.C. panel before they can make any changes to voting practices. See id. at 3–4.This preclearance function was intended to ensure that the change “did not have the purpose and will not have the effect of denying or abridging the right to vote on account of race or color.” See id. at 4.
The preclearance aspect of Section 5 and Section 4(b)’s coverage formula was both challenged at the Supreme Court in South Carolina v. Katzenbach (1966), but without success. See Brief for Petitioner at 4. In its decision, the Court relied on evidence that the covered jurisdictions had been singled out by a rational theory and that those jurisdictions had systematically evaded the protections of the Fifteenth Amendment. See id. at 5.
While the original term of the VRA’s preclearance restriction was five years, Congress reauthorized the provision for another five years in 1970, another seven years in 1975, and another twenty-five years in 1982. See Brief for Petitioner at 6–8. The States and counties challenged the first reauthorizations in the Supreme Court without success in Georgia v. United States (1973) and City of Rome v. United States (1980). See id. at 6–7. In Georgia v. Ashcroft (2003), the Supreme Court limited the “effect” prong of Section 5 to “a ‘minority group’s opportunity to participate in the political process,’” as opposed to the prior iteration, which considered “the comparative ability of a minority group to elect a candidate of its choice.” See id. at 8–9.
In 2006, Congress reauthorized the VRA for an additional 25 years. See Brief for Petitioner at 9.In doing so, it based coverage under Section 4(2) on election data from 1964, 1968, and 1972. See id. at 10. The reauthorization and its use of older election data for its coverage formula were challenged in Northwest Austin Municipal Utility District No. One v. Holder (2009) (“Northwest Austin”). See id. The Court found that the burdens of Section 5 must be “justified by current needs” and Section 4(b)’s “departure from the fundamental principal of equal sovereignty requires a showing that a statute’s disparate geographic coverage is sufficiently related to the problem that it targets.” Seeid.at 11.
In 2010, addressing the Constitutional questions left open in Northwest Austin, Shelby County sought a permanent injunction that would cease enforcement of Sections 4(b) and 5 of the VRA. See Brief for Petitioner at 12. Shelby County lost its initial filing and its appeal to the D.C. Circuit, and now seeks review before the Supreme Court. See id. at 12.
The central issue in this case is whether Congress’s 25-year extension of sections 4(b) and 5 the VRA exceeded its authority under the Fifteenth Amendment. Shelby County argues that this extension was beyond Congress’s authority, and violated the Tenth Amendment and Article IV of the Constitution. Holder argues that the extension was within Congress’s authority, and was necessary to counter regression in voting practices among states with a history of restrictions on minority voting rights.
Many of the amicus briefs in support of Shelby County are written on behalf of states and other counties who find themselves subject to the VRA‘s provisions. The concern that almost all of these amici share is the double standard they claim to be subject to with regard to the enactment of laws that may tangentially affect minority voting rights. See Brief of Alabama at 18; Brief of Arizona et al. at 22. Specifically, Alabama points out that when it attempted to enact a law that would require residents to provide proof of citizenship when they registered to vote, the state was required to make supplemental submissions to the Department of Justice (“DOJ”) before the law would be cleared under the VRA. SeeBrief of Alabama at 18.Alabama compares that situation to the enactment of virtually identical laws in Arizona and Georgia, both of which were pre-cleared by the DOJ and did not require supplemental submissions. Seeid. at 17–18. According to the other amicus briefs supporting Shelby County, this is not an isolated incident and in fact occurs frequently, in part because of the vague nature of the DOJ’s standards for preclearance. See Brief of Texas at 15; Brief of The Cato Institute at 15.
In her amicus brief in support of Respondent Holder, Professor Patricia A. Broussard of Florida A&M University College of Law counters that the restrictions placed upon certain states and counties under the VRA are necessary, and help protect minority voters from retrogression. See Brief at 12–13. In support, Professor Broussard cites Texas v. Holder (2012), a D.C. Circuit case where Texas challenged Holder’s denial of preclearance for a law that would limit the forms of ID that would be accepted at polling stations. See id. at 13. In deciding that case, Professor Broussard asserts, the D.C. Circuit found that this new ID requirement would have a “disparate impact on poor, minority, and elderly voters.” See id.
STATE SOVEREIGNTY AND FEDERALISM
Another concern shared by many of Shelby County’s amici is that the VRA impinges on federalism and state sovereignty with regard to elections. In particular, the amici point to the supervisory power historically granted to states over their own state elections. See Brief of Abraham Lincoln Foundation for Public Policy Research et al. at 24–25. While the amici admit that this power is not absolute, they find that the unequal restrictions placed on certain states under the VRA is an infringement on state sovereignty and puts those states on unequal footing from their neighbors, raising federalism concerns. See id. at 25–26.
In response, amici supporting Respondent address sovereignty concerns as competing with Constitutional accountability. See Brief of Professor Broussard et al. at 14. Additionally, they look to the Supreme Court’s history of support for the VRA, finding that its restrictions do not infringe on state sovereignty concerns. See id. at 15. They also suggest that any imposition the VRA coverage puts on a state is proportional to the need for such coverage with the goal of protecting minority voters. See id. at 16–17.
Shelby County begins by arguing that Congress has failed to produce an evidentiary record sufficient to justify renewing the VRA. See Brief for Petitioner at 23. The VRA’s initial passage of was justified, according to Petitioner, by states continuously altering their voting laws to remain one step ahead of any court victories achieved by minority voters. See id. at 27–28. It was a legislative record of such practices that, according to Shelby County, permitted the Supreme Court to uphold the VRA in the case of South Carolina v. Katzenbach (1966). See id. at 27. Now, Petitioner asserts, there is no evidence of such practices in the record. See id. at 28.
The evidence that Congress did rely on in renewing Section 5, according to Shelby County, consists largely of preclearance denials in covered jurisdictions. See id. at 30. Petitioner argues that these data are a poor indication of actual intentional discrimination in voting. See id. Moreover, Shelby County argues that the direct evidence of discrimination is “scattered.” See id. at 31. Much of this, in turn, is evidence of vote dilution, not actual denial of ballot access, which Petitioner asserts does not violate the Fifteenth Amendment. See id. at 32. In short, Shelby County argues that current conditions in covered jurisdictions are such that remedies less drastic than Section 5 preclearance would be adequate. See id. at 33.
The Attorney General argues that, in fact, Congress made a considered decision to renew Section 5 and amassed a significant amount of supporting evidence. See Brief for Respondent at 20.First, Holder asserts, Congress found substantial evidence of racial discrimination in voting in the covered jurisdictions. See id. In his view, evidence from the Section 5 process itself, such as objections to preclearance requests, is highly relevant to Congress’s determination that the preclearance regime should remain in place. See id. at 21–23. The Attorney General also urges that even if vote dilution does not violate the Fifteenth Amendment, it does violate the Equal Protection Clause of the Fourteenth and is therefore within Congress’s power to protect against. See id. at 36.
Shelby County further argues that the reasoning of the D.C. Circuit would justify preclearance in perpetuity. See Brief for Petitioner at 34. According to Petitioner, the court below would allow Congress to determine for itself the constitutional significance of evidence in its record, which threatens to remove the limitation that Congress may “enforce” (but not actually interpret) the Fourteenth and Fifteenth Amendments. See id. at 36–37. Finally, in Shelby County’s view, the D.C. Circuit engaged in the paradoxical reasoning that the absence of discrimination was evidence of the deterrent value of the preclearance requirement. See id. at 39. In Petitioner’s view, this is inadequate evidence to support enforcement legislation. See id.
The Attorney General responds that Congress correctly determined, based on the record, that Section 5 continues to deter discrimination in voting that would violate the Constitution. SeeBrief for Respondent at 29. This evidence, according to Holder, is part of the reason that Congress was nearly unanimous in its decision to renew Section 5 in 2006. See id. at 34. This determination, the Attorney General argues, is entitled to great deference by the Court. See id.
Shelby County next argues that, even if preclearance could be justified, the formula used to determine which jurisdictions are covered is not rational. See Brief for Petitioner at 40. First, Petitioner points out that the coverage formula is based on data that is decades old. See id. at 41. Shelby County argues that this alone renders the coverage formula unconstitutional. See id. It also argues that the coverage formula is flawed because the factors considered are “first-generation” ballot access issues, while the VRA is meant at present to defeat “second-generation” problems like vote dilution. See id.
The Attorney General points out that the criteria expressed in the coverage formula are not in fact the focus of Congress’s concerns. SeeBrief for Respondent at 48. Rather, according to Holder, Congress determined which areas of the country should be covered and then “reverse-engineered” a formula to capture those jurisdictions. See id. at 48–49. Seen in this light, according to the Attorney General, Shelby County misunderstands the formula’s purpose in arguing that it is flawed simply because it relies on old data. See id. at 49–50. Rather, Holder argues, the formula remains relevant because it still specifies the areas that Congress wishes to subject to the preclearance requirements. See id.
Shelby County contends that, in addition to its theoretical flaws, the preclearance coverage formula is flawed in practice. See Brief for Petitioner at43. Petitioner argues voter registration and turnout are more equal in covered than in uncovered jurisdictions. See id. at 44–46. The result, in Shelby County’s view, is that the coverage formula is both over-inclusive and under-inclusive. See id. at 50.
Respondent-Intervenors Earl Cunningham et al. argue that Shelby County’s argument fails because the coverage formula need not be a perfect fit, but only “sufficiently related” to voting discrimination, to be upheld as constitutional. See Brief, at 56–57. Indeed, they assert, the coverage formula was imperfect, and the Supreme Court knew it when the Court first upheld Section 5 in 1966. See id. at 57. Under this standard, according to them, a bit of imprecision in coverage is permissible, especially since Congress would be within its authority to expand coverage to the entire nation. See id.
The Attorney General also responds that Shelby County is incorrect, and that voting discrimination does indeed remain concentrated in the covered jurisdictions. SeeBrief for Respondent at 50. In fact, Holder asserts, Congress found that indicators of racial discrimination in voting remain more significant in the covered jurisdictions. See id. Finally, the Attorney General argues that the problems of under-inclusiveness and over-inclusiveness are addressed by the “bailout” and “bail-in” provisions. See id. at 53. Under these provisions, jurisdictions may either be added or removed from the preclearance requirement depending on whether it is shown that for the past ten years they have not violated the VRA. See id. at53–54. Moreover, the Attorney General points out that bailout was made even easier by the Supreme Court’s decision in Northwest Austin. See id. at54.
Arguing, however, that bailout is an ineffective way to cure the irrationality of the coverage formula, Shelby County points out that only a tiny fraction of covered jurisdictions have successfully bailed out of preclearance. See id. at 54.In its view, this is because the criteria required for bailout are extremely difficult to achieve. See id. at 54-55.Moreover, the bailout requirements have been expanded to include, according to Shelby County, highly subjective criteria beyond merely showing that the jurisdiction should not have been included in the first place. See id. at 55-56.In sum, bailout is, in Petitioner’s view, an inadequate way to address the unconstitutional over-inclusiveness in the coverage formula. See id. at 57.
Shelby County asserts that the Section 5 preclearance regime exceeds Congress’s power to enforce the Fourteenth and Fifteenth Amendments and violates the Tenth Amendment and Article IV. Covered jurisdictions contend that the VRA’s restrictions subject them to a double standard and infringe on their state sovereignty rights. The Attorney General asserts that these restrictions are necessary to counter racial discrimination in voting. Shelby County argues that given the changed conditions, the preclearance regime is no longer necessary or valid and that the coverage formula is antiquated. The Attorney General responds that preclearance remains a valid exercise of congressional power and that the formula remains constitutional
The authors would like to thank former Supreme Court Reporter of Decisions Frank Wagner for his assistance in editing this preview.