by Spencer Overton, Professor of Law at The George Washington University Law School and author of the book Stealing Democracy: The New Politics of Voter Suppression. This post is part of an ACSblog symposium on Shelby County v. Holder.
Many who assert the U.S. Supreme Court in Shelby County v. Holder should uphold the preclearance and coverage provisions of Section 5 of the Voting Rights Act disagree with the Court’s 2008 decision in Crawford v. Marion County Bd. of Elections that upheld Indiana’s photo identification requirement. On the other hand, those who oppose Section 5 cite Crawford as a reason Section 5 is allegedly unconstitutional.
An honest reading of Crawford, however, provides five reasons the Court should now defer to Congress’s determinations regarding the coverage and preclearance provisions of Section 5.
1. Legal Issue: In Crawford, the U.S. Supreme Court ruled that the Indiana ID requirement did not unconstitutionally burden the right to vote (the Court did not address whether ID discriminated on the basis of race). The plaintiff in Shelby County seeks to undermine Congress’s authority under the 14th and 15th Amendments by making the novel claim that the coverage provision violates a “principle of state equality” -- but the U.S. Constitution contains no such requirement.
2. Record: In Crawford, the U.S. Supreme Court deferred to Indiana’s interest in preventing fraud despite the fact “[t]he record contain[ed] no evidence of any such fraud actually occurring in Indiana at any time in its history.” In Shelby County v. Holder, the Court should defer to a 2006 Congressional reauthorization process that featured 21 hearings, over 90 witnesses, and a 15,000-page record that showed that contemporary voting discrimination remains concentrated in covered states. For example, Congress found that the Justice Department lodged over 700 objections to voting changes enacted by covered jurisdictions since Congress previously reauthorized Section 5 in 1982. Congress also considered the “Katz Study,” which showed that covered jurisdictions account for less than 25 percent of the nation’s population but 56 percent of the successful published Section 2 voting rights cases. The percentage of documented elections with extreme white bloc voting was 80.7 percent in covered jurisdictions, compared to 40.9 percent in uncovered jurisdictions.
3. Heavy Burden for Facial Challenge: The U.S. Supreme Court has held that “a plaintiff can only succeed in a facial challenge by ‘establishing that no set of circumstances exists under which [the statute] would be valid,’ i.e., that the law is unconstitutional in all of its applications.” In Crawford, the Court rejected the facial challenge to the Indiana ID law, reasoning that “[a] facial challenge must fail where the statute has a ‘plainly legitimate sweep.’” Shelby County’s facial challenge must fail because preclearance is clearly legitimate in a large number of instances. For example, preclearance is clearly constitutional in states such as Texas, Mississippi, Alabama, Georgia, Louisiana and South Carolina where the record showed at least one hundred (in some cases several hundred) instances of discriminatory voting practices in each between 1982 and 2006. Further, preclearance is clearly constitutional in federal elections in all covered states because the Elections Clause of the U.S. Constitution gives Congress such power.
4. Institutional Deference: In Crawford, the Court deferred to the Indiana state legislature. In Shelby County, the Court should defer to Congress not simply because it is a co-equal branch of government with greater expertise in elections, but also because the 14th and 15th Amendments explicitly authorize Congress to enforce the Amendments through legislation like the Voting Rights Act.
5. Bipartisanship: In Crawford, the Court deferred to the Indiana ID law, even though it was passed along straight party lines amid allegations of improper partisan motives (all Republicans in the state legislature voted in favor of ID, and all Democrats voted against it). In Shelby County, the 2006 reauthorization of the coverage and preclearance provisions was supported by overwhelming bipartisan majorities. The vote was 390-33 in the House and 98-0 in the U.S. Senate, and the bill was signed into law by Republican President George W. Bush.