Justices Should Support, Not Hinder Congressional Work to Protect Voting Rights

February 26, 2013
Guest Post

by Ryan P. Haygood, Director of LDF’s Political Participation Group, and part of LDF’s litigation team in Shelby County, Alabama v. Holder. LDF Special Counsel Debo P. Adegbile will present oral argument on behalf of defendant-intervenors in this case, including LDF’s clients, five Black ministers and Councilman Ernest Montgomery. In 2006, the City of Calera, which lies within Shelby County, enacted a discriminatory redistricting plan that was rejected by the Department of Justice under Section 5, leading to the loss of the city’s sole Black councilman, Mr. Montgomery.  Because of Section 5, however, the Department of Justice required Calera to redraw its electoral boundaries in a nondiscriminatory manner and conduct another election in which Mr. Montgomery regained his seat. This post is part of an ACSblog symposium on Shelby County v. Holder.

The United States Supreme Court will hear oral argument tomorrow in Shelby County, Alabama v. Holder, one of the most important voting rights cases of our generation. 

In the case, Shelby County seeks to tear out the heart of the Voting Rights Act, Section 5. The Voting Rights Act is widely regarded as the most successful piece of civil rights legislation -- if not any legislation -- ever passed. It is for this reason that the Supreme Court, through an unbroken line of cases, has four times over four decades upheld the constitutionality of the Voting Rights Act.

At oral argument, the Court will focus on two key questions: (1) whether voting discrimination persists to a degree that Section 5 is still needed; and, (2) whether that discrimination remains concentrated in the places covered by Section 5.

The answer to both queries is yes for two reasons.

First, in reauthorizing Section 5 in 2006, Congress identified the areas of the country with the worst histories of voting discrimination -- those places where persistent and adaptive discrimination has continued from the past through to the present and, which has proven particularly difficult to dislodge over time through case-by-case litigation. 

During the 2006 reauthorization review, Congress assembled a virtually unprecedented legislative record that closely examined the evidence to determine whether Section 5 is still needed. This analysis was careful, detailed, and included a wide range of views.  Congress received more testimony and information about the voting experience, both in and outside the places covered by Section 5, than it had during any of the previous reauthorizations. Over 10 months in 2005-2006, the House and Senate Judiciary Committees held a combined 21 hearings, received testimony from more than 90 witnesses—including state and federal officials, litigators, scholars, and private citizens—both for and against reauthorization, and compiled a 15,000 page record.  Representative James Sensenbrenner, then-Chair of the House Judiciary Committee, described the record as “one of the most extensive considerations of any piece of legislation that the United States Congress has dealt with in the 27 ½ years” that he had served in Congress.


In the end, Congress determined -- by an overwhelming bipartisan vote of 390-33 in the House, and 98-0 in the Senate -- that voting discrimination persists in the covered jurisdictions, and that without Section 5, “minority citizens will be deprived of the opportunity to exercise their right to vote, or will have their votes diluted, undermining the significant gains made by minorities in the last 40 years.”

Significantly, during this most recent reauthorization period between 1982 and 2006, Congress found that Section 5 prevented morethan650 proposed discriminatory voting changes, at least 60 percent of which were based on purposeful discrimination.  Accordingly, Congress determined that Section 5 is still necessary to protect voters of color from discrimination and to prevent discrimination before it can take root.

Second, Congress also studied the problem of racial discrimination more carefully than it ever had before by taking a fresh look at current conditions around the country.  That process revealed that racial discrimination in our democracy remains concentrated in those places that historically have been covered by Section 5.  Therefore, the existing coverage provision continues to capture those jurisdictions that had the most intractable problems with racial discrimination in voting.  

On this point, Congress considered a study that looked to a different provision of the Voting Rights Act, Section 2, which applies nationally.  The study revealed that although places covered by Section 5 comprise less than 25 percent of the country’s overall population, they account for more than 80 percent of all Section 2 cases that produced favorable outcomes for voters of color.  Therefore, on per capita basis, there are 12 times as many successful Section 2 cases occurring in the covered jurisdictions compared to non-covered jurisdictions.  Moreover, seven of the eight top states that have had successful Section 2 outcomes are in the covered jurisdictions, and the 8th state was brought into Section 5’s coverage.

Given this reality, Shelby County is clearly wrong that the Voting Rights Act’s coverage provision is outdated.  The purpose of the coverage provision is and always was to target jurisdictions with the worst record of discrimination.  The evidence in the congressional record, which took into account both historical experience and continuing discrimination, plainly demonstrates that these same places remain the worst actors.  The only difference is that they have largely shifted their tactics from registration barriers to other discriminatory techniques, from canceling elections right as minority populations are on the verge of electing candidates; to closing polling places in minority communities; to conducting racially discriminatory annexations; and to carving minority communities up during the redistricting process.  Simply updating the turnout or registration data in the coverage provision, thus, would not capture the nature of the discriminatory tactics that currently threaten voters of color.  As Congress recognized, today we confront the same old poison; it’s just in a new bottle.

It is well within Congress’s authority to focus attention on areas where discrimination in voting is persistent and adaptive. A law does not become unconstitutional simply because it does not solve every instance of discrimination -- particularly when that law’s demonstrated track record shows that it continues to be effective where it applies, specifically in the places with the most stubbornly persistent voting discrimination.  As our merits brief in this case explains, the Supreme Court’s “precedent makes clear that Congress need not act with surgical precision … racial discrimination in voting remains concentrated in the jurisdictions that have historically been covered by Section 5. The evidence of ongoing voting discrimination in Alabama specifically, and the covered jurisdictions generally, exceeds, by many orders of magnitude, that in the non-covered jurisdictions.”

In 2006, it was entirely reasonable for Congress to continue to apply Section 5’s strong medicine to those places in our democracy most infected with racial discrimination.  The Supreme Court’s own precedents, the 15,000 page congressional reauthorization record, and evidence of how Section 5 continues to work to protect our clients in Shelby County and the millions of voters of color in the Section 5-covered jurisdiction more broadly, all strongly point toward the Supreme Court upholding Voting Rights Act.