February 26, 2013

Private: Bringing Sweats to the Court

ACSblog symposium on Shelby County v. Holder, bail-out, Justin Levitt, Section 5, Shelby County v. Holder, Voting Rights Act of 1965


by Justin Levitt. Professor Levitt, on loan from Loyola Law School, Los Angeles, is a visiting associate professor of law at Yale Law School. He focuses on constitutional law and the law of the political process. This post is part of an ACSblog symposium on Shelby County v. Holder.

On Wednesday, the Supreme Court will hear Shelby County v. Holder, a challenge to part of the Voting Rights Act.  The case touches on enormously important, vigorously contested, issues: federalism, race, voting rights, political power, Congressional authority.  Amidst all of this big stuff, the Court must make sure it keeps its eye on the heart of the case.

The fight is about a particular part of the Voting Rights Act, with special rules for much of the South (and a few other jurisdictions).  It requires these states (and counties, and towns) to run any election-related changes by the Department of Justice or a federal court, to make sure that the changes won’t leave minorities politically worse off. 

The process of DOJ or court review is called “preclearance” – and in 1966, and again in 1980, the Supreme Court firmly validated the concept for the parts of the country with the most troubled voting rights history.  Preclearance is special medicine, which the Court has already approved for the sickest patients.

In 2006, Congress essentially renewed the prescription as is. And the plaintiffs now challenging the law say that the patient list is out of date. It’s a 1965 take, they say, on a 21st century world: the list is no longer sufficiently tailored to where the problems are.

So who is on the list, needing federal approval for new election rules? It starts with a formula: areas where less than half of the eligible population registered or voted in the presidential elections of the 60s. These are the parts of the country where democracy was broken. We talk about majority rule: in these areas, a majority wasn’t even able to participate.

Shelby County, Alabama, was on the list in the 60s. And it’s still on the list now. But that doesn’t mean the list is static.  Quite the contrary: change was built into coverage from the get-go. 

On the one hand, the Voting Rights Act lets federal courts add areas with real race-and-voting problems to the list. And it also lets a federal court take jurisdictions off of the list, once they have a clean record for 10 years.  These provisions are known as “bail in” and “bail out.”

This flexibility is the really at the case’s heart. Picture the law as a pair of sweatpants. The original preclearance formula is pretty baggy, and there’s no question that much of the South has gotten more trim. A test premised solely on 1964 turnout is at best an awkward fit for addressing racial discrimination in voting today.

But sweats also have an elastic drawstring – and it turns out that the drawstring makes all of the difference.  Without the elastic, sweatpants fall down; but with the elastic, they fit the slender and hefty alike. It’s part of the design. 

For the Voting Rights Act, bail-in and bail-out serve as the elastic, allowing the list for preclearance to expand and contract. Jurisdictions that don’t need federal supervision can come off of the list.  What’s left are the areas that do. And in those places still on the list, the Voting Rights Act is still doing a lot of work preventing discrimination based on race.

Of course, preventing this discrimination requires attention to race, and several of the Justices are profoundly skeptical of any race-conscious government action. Ostensible colorblindness is all the fashion these days.

It’s also particularly fashionable to look not at what Congress did, but at what it might have done instead.  There are plenty of pet ideas. Different coverage. A different enforcement structure. A different focus altogether, on the mechanics of voting rather than preservation of political power.  In reviewing Congress’s work, everyone’s a celebrity guest judge on Project Runway.

But the case before the Court really isn’t about either matter of taste. The Fifteenth Amendment says that the right to vote shall not be abridged on account of race. And it explicitly gives Congress the power to enforce that protection.  Even if there is reason to question race-consciousness generally, Congressional power to fix racial harm in the franchise is baked directly into the Constitution.  And the legal question isn’t whether what Congress did was perfect, but whether what it did was acceptable.

When the Court meets on Wednesday, there will be enormous temptation for it to offer the final word on a lot of big contested issues of social policy.  It should, instead, fixate firmly on the Fifteenth Amendment. That means looking not for fashion, but for appropriate fit.  And on that score, the sweats should do just fine.