By Mark Posner, Senior Counsel, Lawyers’ Committee for Civil Rights Under Law
Recently, Judge John Bates of the U.S. District Court in Washington, DC, ruled that a core provision of the Voting Rights Act of 1965 – the Section 5 “preclearance” requirement – remains a constitutional exercise of Congress’ anti-discrimination authority under the Fourteenth and Fifteenth Amendments. This was a major victory in our nation’s ongoing efforts to “banish the blight of racial discrimination in voting.”
This challenge to the constitutionality of Section 5 was brought by Shelby County, Ala., a largely white suburb of Birmingham. In rejecting the County’s arguments, Judge Bates agreed with an earlier unanimous decision, by a three-judge panel of the D.C. District Court (Nw. Mun. Util. Dist. No. One v. Holder, 573 F. Supp. 2d 221 (D.D.C. 2008)), which likewise upheld the constitutionality of Section 5, in a case brought by a local Texas utility district. That earlier decision, however, was vacated in 2009 when the Supreme Court decided that the utility district could pursue a statutory “bailout” from Section 5 coverage. Unlike the Texas utility district, Shelby County freely admitted that it has a recent history of voting discrimination that disqualified it from “bailing out.”
Section 5 requires states and localities with a history of discrimination in voting – mostly in the South and Southwest – to obtain federal preclearance before implementing any changes in a voting “standard, practice, or procedure.” Preclearance is obtained by demonstrating, either to the Attorney General or the D.C. District Court, that the change does not have a discriminatory purpose or effect.
Congress enacted the preclearance procedure in 1965 after it found that certain jurisdictions with a history of voting discrimination often were devising new discriminatory voting practices when old ones were struck down by the federal courts. Thereafter, Congress reauthorized Section 5 four times, in 1970, 1975, 1982, and, most recently, in 2006, each time finding that voting discrimination in the covered jurisdictions had remained high. Section 5 has prevented hundreds of discriminatory voting changes from going into effect, and has deterred countless others from ever being enacted.
In the Shelby County case, Judge Bates confronted the fundamental question of what legal standard should be used to determine whether, as Shelby County claimed, Congress had exceeded its authority in reauthorizing Section 5 for 25 years in 2006. Shelby County invoked recent Supreme Court holdings that, at least as to certain Fourteenth Amendment legislation, “[t]here must be a congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end.” In so doing, the County proposed a standard that would effectively preclude Congress from renewing effective antidiscrimination laws. The United States and defendant-intervenors (represented by civil rights organizations and law firms, including the Lawyers’ Committee for Civil Rights Under Law, the ACLU, and the NAACP Legal Defense Fund) argued that, in its prior rulings in 1966 and 1980 upholding Section 5, the Supreme Court held that Congress may “use any rational means to effectuate the constitutional prohibition of racial discrimination in voting.”
Judge Bates concluded that “congruence and proportionality” should be applied in this case, but that this articulation of the legal standard and the Supreme Court’s prior articulations all are part and parcel of the same basic legal standard. Judge Bates held that, under this standard, the judiciary owes substantial deference to Congress’ determinations in enacting and reauthorizing Section 5, since Section 5 protects a fundamental right and prevents discrimination based on a constitutionally suspect classification.
Judge Bates then undertook a detailed review of the legislative record Congress compiled in 2005 and 2006, comprising more than 15,000 pages of “statistics, findings by courts and the Justice Department, and first-hand accounts of discrimination.” He concluded that Congress had appropriately determined that “voting discrimination by covered jurisdictions had continued into the 21st century, and that the protections of Section 5 were still needed to safeguard racial and language minority voters.” He also concluded that Congress had appropriately determined that Section 5’s geographic coverage remains sufficiently related to the nature and scope of voting discrimination in this country.
In making these findings, Judge Bates rejected Shelby County’s arguments that sought to place impossibly-high evidentiary hurdles in Congress’ path. For example, the County made the extreme claim that Congress only could reauthorize Section 5 if current conditions mirrored the situation that existed in 1965, when Southern states were effectively barring most African Americans from registering and voting. Instead, Judge Bates found that Congress acted well within its constitutional authority when it examined the full breadth of recent voting discrimination, including voting changes aimed at diluting the voting strength of minority citizens who are able to register and vote.
Finally, Judge Bates rejected the claim that Section 5’s coverage formula may be suspect because it relies on electoral conditions that existed in 1964, 1968, and 1972. Judge Bates explained that “the election data from those years . . . served only as a proxy for identifying those jurisdictions that had a long, open, and notorious history of disenfranchising minority citizens and diluting their voting strength whenever they did manage to register and cast ballots.” He concluded that limiting Section 5 to these jurisdictions – in the context of extensive legislative evidence that voting discrimination in these jurisdictions is continuing – is “[p]erhaps the most significant way” in which Congress sought to ensure that Section 5 remains a congruent and proportional remedy.
Shelby County already has filed a notice of appeal to the D.C. Circuit Court. And it would not be surprising if, after that court rules, the Supreme Court again takes up the question of Section 5’s constitutionality. While the case proceeds, voting changes enacted by Section 5 jurisdictions will continue to be reviewed by the Attorney General and the D.C. District Court. These changes include, significantly, thousands of redistricting plans that covered jurisdictions are in the midst of adopting, as well as new restrictions on voting including photo ID laws enacted by Alabama, South Carolina, and Texas.
In sum, Judge Bates’ opinion demonstrates that undertaking a thoughtful, careful and detailed analysis of the law and the legislative record ineluctably leads to the conclusion that Congress acted well within its constitutional powers when it reauthorized Section 5 in 2006.