What happens when a Supreme Court ostensibly committed to judicial restraint confronts a long-standing civil rights statute that offends its conservative majority’s sense that law should be colorblind, even if the world is not? That question will be front and center when the Court hears arguments Wednesday in Shelby County v. Holder, a case challenging the constitutionality of a central provision of the 1965 Voting Rights Act. The provision, known as Section 5, requires nine states, mostly in the South, and select jurisdictions in seven other states, to obtain federal approval for any change in their voting laws. Congress concluded that this was necessary to ensure equal opportunity in voting. But conservatives in some of the southern states have long complained that the law gives the federal government too much power, and now, Shelby County—a largely white suburb of Birmingham, Alabama found guilty of racial discrimination in voting as recently as 2008—has sued the US government to get it annulled.
If the Supreme Court majority exercises restraint, it will acknowledge that Section 5 falls within Congress’s constitutionally assigned authority to enforce rights of equal protection and voting. But if the Court chooses to impose its own view of racial justice—according to which laws should be drafted without regard to race, even if race-conscious efforts are needed to forestall discrimination—it will invalidate a core part of one of the country’s signal civil rights laws. The Court has frequently reviewed the Voting Rights Act since its initial enactment, and has until now always upheld it. But this time around, the result could well be different. It shouldn’t be.
The Voting Rights Act is the most successful anti-discrimination law in US history. It has transformed a nation in which minority voters were routinely and systematically denied access to the ballot box, through literacy tests and the like, into one where registration and voter restrictions are the exception. And the Act has also defeated many attempts by states and local jurisdictions to gerrymander minority voters into districts designed to minimize or negate their influence.
Yet while there has been great progress, many of the problems the Act was designed to address persist in different ways today. Quite apart from the battles over “voter ID” rules during the 2012 election, “racially polarized voting,” in which white and minority voters divide along racial lines in the candidates they support, continues to occur in many parts of the country; and de-facto residential segregation is all too common. As a result, it is easy for those drawing voting district lines to group black or Latino voters into districts in which they are a minority, meaning that their votes will rarely if ever “count,” because candidates will need to appeal only to the white majority. And because minority voters often favor Democratic candidates, there is great temptation among Republican-dominated state legislatures to minimize the influence of those voters, even if old-fashioned racial animus is not the prime motivator.
Section 5 has provided an effective and flexible way to address these continuing problems. It applies to specific states and locales that have histories of voter discrimination and especially poor records of registering minority voters. Although most of the covered jurisdictions are in the South—Alabama, Georgia, Louisiana, Mississippi, South Carolina, Texas, and Virginia—the provision also governs all of Alaska and Arizona, and parts of California, Michigan, New Hampshire, New York, and South Dakota. Importantly, states and counties that have not discriminated for ten years may “bail out” of Section 5’s obligations, and many jurisdictions have done so. (The Justice Department has approved every such application since 1982). The law also empowers courts to “bail in” non-covered jurisdictions that show a persistent pattern of discrimination, and courts have imposed this requirement on jurisdictions in nine states.
Moreover, there is continued evidence of discrimination in many of the original Section 5 jurisdictions. The majority of successful voter discrimination lawsuits in the twenty-five years leading up to 2006, for example, were against jurisdictions covered by Section 5. Yet those jurisdictions represent less than one-quarter of the nation’s population, and ought to be less vulnerable to lawsuits precisely because their voting rules must satisfy preclearance. In 2012 alone, Section 5 blocked Texas from implementing a voter ID law that would have disproportionately barred black and Latino citizens from casting their ballots, and prevented a statewide redistricting plan that was found to be designed to reduce black and Latino influence in federal and state elections. Section 5 also compelled South Carolina to modify its voter ID law to reduce its discriminatory impact, by providing an exception for those who faced a reasonable impediment to obtaining a government-issued identification card.
Critics of Section 5’s “preclearance” process argue that it is not needed because another provision of the Voting Rights Act, Section 2, already permits parties to sue in court to challenge discriminatory voting practices. But Congress found Section 2 insufficient because voting rights lawsuits are extremely expensive to mount, often necessitating complex expert analyses of voluminous demographic data, and can take years to resolve, whereas Section 5 creates an administrative process and puts the onus on states and localities with bad records to show that their changes to voting laws are not discriminatory. And the preclearance process’s deterrent effects are substantial, because officials in the covered jurisdictions know that any change they make will have to pass muster in Washington before it can go into effect.
While the Supreme Court has ruled against previous challenges to Section 5, it expressed grave doubts about the provision when it heard the last challenge three years ago. The Court’s concern centered on the law’s differential treatment of covered and non-covered states, and on what it considered the substantial “federalism costs”—or infringement on states’ rights—in the requirement that covered states obtain advance federal approval of changes in state law. The Court did not ultimately rule on the constitutionality of Section 5, but warned that the law’s “current burdens” had to be justified by “current needs” and gave a broad interpretation to the conditions under which the law’s “bail out” provision was available to the challenger.
This time, though, that way out is not available. Shelby County is not eligible for a “bail out” because it was found guilty of discriminating in its voting rules in 2008. County officials argue that the formula used to identify states and counties subject to preclearance requirements makes no sense, because it is tied to legal practices and registration rates from three and four decades ago. And they contend that discrimination is no longer sufficiently prevalent to warrant the extraordinary requirement that covered states come to Washington “hat in hand” for approval of their every voting law change.
How the Court decides this case will turn on its view of Congress’s power to enforce the Fourteenth and Fifteenth Amendments. Those amendments do not merely create rights enforceable by courts, as do other “individual rights” provision in the Bill of Rights. They expressly authorize Congress to enforce their guarantees through “appropriate legislation.” The amendments’ drafters foresaw that judicial enforcement might not be enough to make equality guarantees meaningful, and therefore empowered Congress to play a coequal enforcement role.
Past decisions have found that Congress, in exercising this authority, can enact laws that go beyond core violations of the Constitution where appropriate to forestall such violations. Thus, even though only laws that are discriminatory in purpose violate the Constitution, Congress can also prohibit practices that have a discriminatory effect. Section 5 does just that. For example, in a city that is 30 percent black and 70 percent white, an ostensibly neutral rule that all ten members on the city council should be elected “at large” will often mean in practice that the 70 percent white majority will elect all ten representatives. If the council is divided into districts, however, it should be possible to ensure that black voters are able to elect some members to the council, particularly where, as is often the case, housing segregation makes it relatively easy to identify districts in which minority voters form a majority. Section 5 requires states and jurisdiction to show that their voting rules, even if ostensibly neutral, do not “dilute” minority voters’ ability to elect candidates of their choice.
But today’s Court features five conservative Justices committed to a “colorblind” view of equality, who find offensive laws that take race into account, even for ameliorative purposes. This skepticism was evident in the Court’s oral argument last fall in the case challenging the University of Texas’s affirmative action program, in which conservative justices questioned whether one could really determine the race of an applicant, and expressed doubts about the value of racial diversity. Section 5 bothers many of these justices for similar reasons: in order to ensure that a voting change does not have a discriminatory effect, states and local jurisdictions must consider the racial impact that an otherwise neutral change to a voting law might have. The court’s majority may well doubt that this requirement is truly warranted by “current needs.”
It is. Before Congress reenacted Section 5 in 2006, it held twenty-one separate hearings, compiled a record of over 15,000 pages, and concluded on that basis that Section 5’s preclearance obligations remained necessary for another twenty-five years—except in states or localities that can successfully demonstrate that they have a clean record and “bail out.” The question before the Supreme Court on Wednesday will be whether it should respect Congress’s considered, recent judgment as a co-equal branch of government. Do “current needs” justify the continued use of Section 5? As long as racially polarized voting and residential segregation persist, the need to protect voting rights remains urgent—and nowhere more so than in those states and jurisdictions that have the worst histories of discrimination and have been unable to show that they have cleaned up their acts.