The Case for Voting - March 15, 2013
Shelby County v. Holder and the Fate of Section 5 of the Voting Rights Act
By Eileen O'Connor
On February 27, 2013, the Supreme Court heard oral argument in Shelby County v. Holder, a case in which Shelby County, a largely white suburb of Birmingham, Alabama, is challenging the constitutionality of Section 5 of the Voting Rights Act (VRA). Section 5 requires certain jurisdictions with a history of voting discrimination - including Alabama - to obtain approval from the U.S. Department of Justice or the federal court in the District of Columbia for any voting changes before putting such changes into effect. Section 5, which was first enacted in 1965, and reauthorized in 1970, 1975, 1982 and, most recently, in 2006, has been, without a doubt, a powerful tool in battling discrimination in voting in the United States. The Lawyers' Committee for Civil Rights Under Law played a key role in developing the record on which Congress relied in 2006 in reauthorizing the statute, and now represents Bobby Lee Harris, a former council member of the Town of Alabaster, Alabama (located in Shelby County), who intervened in the case to defend Section 5.
Reauthorization of Section 5 in 2006, and the Continuing Need for the Preclearance Remedy
Congress reauthorized Section 5 in 2006 after conducting 21 hearings regarding the nature and scope of modern day discrimination in voting and receiving over 15,000 pages of testimony and reports. That record unquestionably showed an ongoing and extensive pattern of voting discrimination in the covered jurisdictions. For example, between the most recent preceding reauthorization in 1982 and 2006, the Attorney General found that covered jurisdictions sought to implement approximately 2,400 discriminatory voting changes, which were blocked by the Attorney General interposing more than 750 Section 5 objections. Also during that time, covered jurisdictions withdrew from Section 5 review or modified hundreds of proposed voting changes after the Attorney General requested that the jurisdictions supplement their preclearance submissions to demonstrate that their changes were nondiscriminatory. In addition to this substantial evidence of continuing racial discrimination in voting, Section 5 has had a strong deterrent effect, discouraging covered jurisdictions from enacting many other discriminatory changes.
The most recent examples of the need for the preclearance remedy include four Section 5 decisions issued just last year by the United States District Court for the District of Columbia. First, on August 16, 2012, the court held that Florida's attempt to reduce the number of early voting days would have a retrogressive effect on African American voters. Then, in separate decisions issued on August 28 and 30, the court found that all three of the major statewide redistricting plans Texas enacted in 2011(for Congress, the state House, and the state Senate) were discriminatory; and that, also in 2011, the state had adopted the most stringent photo ID requirement for in-person voting in the country which would significantly limit the participation of minority voters. Finally, on October 10, the court ruled that, in order to obtain preclearance of its new photo ID law, South Carolina would be required to adhere to a broad interpretation of an exception to that law so as to avoid what otherwise would have been the law's discriminatory limitation on who is permitted to vote on Election Day.
The record before Congress, as supplemented during the Shelby County litigation, also allows for a direct comparison between modern day voting discrimination occurring in covered and non-covered jurisdictions, demonstrating that voting discrimination remains concentrated in the covered areas. Between 1982 and 2006, about 55% of all successful reported cases brought under the nationwide nondiscrimination provisions of Section 2 of the Voting Rights Act were brought in covered jurisdictions, and covered jurisdictions accounted for over 80% of all reported-plus-unreported successful Section 2 cases.
Two factors make the contrast between these two sets of jurisdictions even more stark. First, the existence of Section 5 means that the number of successful Section 2 cases in the covered jurisdictions is understated as compared to the non-covered jurisdictions, since many of the voting changes blocked by Section 5 objections undoubtedly would instead have been the subject of successful Section 2 actions if not for the preclearance requirement. Second, successful Section 2 litigation is concentrated in the covered jurisdictions despite the fact that a much higher percentage of the population lives in the non-covered areas. As of 2000 (most recent census data available in 2006), three quarters of the nation's population lived in non-covered areas, including substantial majorities of several minority populations (61% of the African American population; 68% of the Hispanic population; 75% of the Native American population).
In reauthorizing Section 5, Congress determined that Section 2 does not provide an adequate remedy for voting discrimination in the covered jurisdictions. This in part is because of the nature and scope of the ongoing problem of voting discrimination in these areas, which would far exceed the ability of the Justice Department and private parties to monitor and address under Section 2. In addition, Section 2 addresses discrimination after the fact , whereas Section 5 prevents discriminatory changes from taking effect. By the time a Section 2 case has been decided, a discriminatory voting practice may have been in effect for several years. Cases brought under Section 2 are also, in many instances, prohibitively expensive.
Notes From the Oral Argument
In advocating that Section 5 should be struck down as unconstitutional, Shelby County argued that Congress did not build a satisfactory record to establish the continuing need for Section 5, and that the coverage formula (by which the jurisdictions covered by Section 5 are identified) is no longer rational in theory or practice. In response, both the United States and the Respondent-Intervenors (including Mr. Harris, the Lawyers' Committee's client) argued that Congress amassed a substantial record in support of reauthorization, particularly given that Congress was legislating under the broad authority granted to it by the Fourteenth and Fifteenth Amendments. The United States and Respondent-Intervenors also argued that the coverage provisions are appropriate in that Section 5 applies to those jurisdictions that have both a longstanding history of discrimination in voting and a contemporary record of continuing voting discrimination. Additionally, the Act includes "bail-in" and "bail-out" provisions, which allow for further tailoring of the list of covered jurisdictions.
Oral argument on February 27 covered a wide variety of topics. For example, several justices focused on the lack of an adequate substitute for Section 5 to combat racial discrimination in voting. Although Shelby County argued that the availability of preliminary injunctions in Section 2 cases mitigates this problem, the facts show otherwise. In response to Justice Anthony M. Kennedy's questions regarding whether Section 2 is an adequate remedy, the Solicitor General explained that it is his understanding that a preliminary injunction is issued in fewer than one-quarter of ultimately successful Section 2 suits (and some studies have put the number of preliminary injunctions issued in Section 2 cases as low as 5%). Therefore, the challenged law remains in effect during the course of litigation in a majority of successful Section 2 cases.
Other justices, including Chief Justice John G. Roberts, Justice Antonin Scalia, and Justice Kennedy, raised concerns about issues of federalism, and questioned the appropriateness of Section 5's different treatment of the States. Justice Sonia Sotomayor, on the other hand, indicated her view that States are treated differently because they are differently situated as to their history and levels of voting discrimination and noted, for example, that no one objects to Congress targeting emergency relief to States where it is most needed.
Some justices, such as Justice Elena Kagan, seemed troubled by the "facial" nature of the challenge brought by Shelby County. They suggested that, given Alabama's record of voting discrimination (e.g., during the reauthorization period (1982-2006), Alabama had more successful Section 2 cases (192) than any other State besides Texas (206)), Section 5 is not unconstitutional as applied to Shelby County, and noted that such "facial" challenges are disfavored and impose a high burden on the challenger to a law. As Justice Kennedy put the question to the County's attorney: "If you could be covered under most suggested formulas for this type of statute, why are you injured by this one?" Chief Justice Roberts, however, made clear that he views Shelby County's challenge as a challenge to how the coverage formula for Section 5 has been applied to the County, so he did not appear persuaded that the County is making a disfavored "facial" challenge.
Other justices questioned whether the Court could substitute its judgment for that of Congress as to whether the problem of racial discrimination in voting has been sufficiently cured to justify the elimination of Section 5. Justice Scalia, however, expressed that this is "not the kind of a question you can leave to Congress" because there is not "anything to be gained by any Senator to vote against" the VRA. On the other hand, Justice Kagan was clearly troubled by the notion that it would be within the powers of the Court, rather than Congress, to decide whether the problem of racial discrimination has been sufficiently remedied. She noted, "I did not think that fell within our bailiwick."
Justice Stephen G. Breyer noted repeatedly that when a problem is not yet solved, it is imprudent to dispense with the tool that is working to fix the problem. He compared racial discrimination in voting to a disease that, while improved, has not yet been cured.
Justice Clarence Thomas did not ask any questions during oral argument, however, in the 2009 case of Northwest Austin Municipal Utility District No. One v. Holder, where the Court declined to rule on an earlier challenge to the constitutionality of the 2006 reauthorization of Section 5, he wrote separately to express his view that Congress had acted beyond its authority under the Reconstruction Amendments.
In sum, the oral argument suggested that the Court is closely split as to whether it will uphold or strike down Section 5. As we strenuously argued to the Supreme Court, the Court should defer to Congress' careful determination that, for now, Section 5 remains a critically important remedy in the ongoing battle against the disease of racial discrimination in voting.
A decision in the case is expected in June 2013.