Racial justice

by Bertrall Ross, Assistant Professor of Law, U.C. Berkeley School of Law. This post is part of an ACSblog symposium on Shelby County v. Holder.

Seventy-five years ago, a plurality of the Supreme Court in an extraordinary footnote to a rather ordinary case announced a new theory of judicial review. Under this new theory, the Supreme Court would closely scrutinize both laws that imposed restrictions on the ordinary operation of the political process and laws that discriminated against discrete and insular religious, national, or racial minorities. The underlying premise of this theory of judicial review was that democratic actors could not be trusted to either maintain an open and inclusive political process or to protect the rights and defend the interests of politically marginalized minorities. The Court simply presumed that the democratic process did not operate properly. This democratic dysfunction arising from a tyranny of the majority meant that democratic rights and the rights of the politically marginalized were entitled to special judicial protection from the majoritarian processes.

It was this judicial presumption about the dysfunction of politics that seemed to animate the asymmetrical treatment of congressional authority to enforce the Fourteenth Amendment in the 1960s. So long as Congress used its power to enhance the equal protection rights, and particularly the voting rights, of racial minorities, the Court gave great deference to its actions. But if ever it were to decide to use this power to dilute the equal protection rights of these minorities, the Court announced that the laws would not be treated with the same deference. Instead, such law would likely be subject to intense scrutiny and ultimate judicial invalidation. The lesson of this era seemed to be that democracy could not be trusted to protect minorities and their political rights. 

As the Supreme Court prepares to hear oral argument in Shelby County v. Holder, a different form of democratic distrust seems to have emerged in Supreme Court doctrine.  Minorities such as lesbians and gay men that would have been considered politically marginalized are now viewed as too politically powerful. Laws that benefit racial minorities are suspected to be the product of racial politics that democratic actors adopt to please the organized and important racial constituencies. And perhaps most relevant to the case of Shelby County, a Congress once given great leeway to enhance the equal protection rights of minorities through its Fourteenth Amendment enforcement authority, now has similar actions subject to much more rigorous scrutiny in the form of a congruence and proportionality test. 

by Jeremy Leaming

Once again the U.S. Supreme Court will grapple with the constitutionality of Section 5, the strongest enforcement provision of the landmark Voting Rights Act of 1965, when Alabama officials take to the high court on Feb. 27 to argue that the provision is outdated and subverts state sovereignty.

Noted in this post, groups arguing in favor of Section 5 say Alabama officials ignore persistent violations of Section 5 in trying to persuade a Court controlled by a right-wing majority that it is now time to do away with the law’s integral enforcement measure. Several of the groups point out that as early as 2010 officials in Shelby County, Ala., a largely white enclave outside Birmingham, were working to alter voting districts to dilute the minority vote. Section 5 applies to several states and municipalities, mostly in the South, with intense histories of racial discrimination in voting. It requires those jurisdictions to obtain “preclearance” from the Department of Justice or a federal court in Washington before making any changes to their voting rules and procedures.

But since its enactment in 1965 a string of covered jurisdictions has lodged lawsuits against Section 5. As noted by David H. Gans and Elizabeth B. Wydra in a new ACS Issue Brief on the case, Shelby County v. Holder, the Supreme Court has upheld the constitutionality of Section 5 on four occasions – 1966, 1973, 1980, and 1999 – “recognizing that the Act falls squarely within congressional power to enforce the constitutional ban on racial discrimination in voting.”

Several other groups have lodged friend-of-the-court briefs with the Supreme Court providing recent examples of racial discrimination in voting in the covered jurisdictions and arguing that Section 5 is an appropriate congressional action to enforce the promise of both the Fourteenth and Fifteenth Amendments. (The Fourteenth Amendment bars states from depriving people of liberty and the Fifteenth Amendment prohibits states from discriminating against voters because of their race.)

During a recent ACS panel discussion on the Shelby County case Armand Derfner, a renowned attorney who has argued on behalf of voters in the covered jurisdictions against racial discrimination in voting, dismissed arguments that Section 5 has outlived its usefulness. (Video of the discussion is here.)