Bob Adelman/Magnum Photos

A black woman answering a rigorous questionnaire while attempting to register to vote, as a registrar looks on, Baton Rouge, Louisiana, 1964

It is one of the unhappy incidents of the federal system that a self-righteous Supreme Court, acting on its Members’ personal view of what would make a “more perfect Union” (a criterion only slightly more restrictive than a “more perfect world”), can impose its own favored social and economic dispositions nationwide.

So wrote Justice Antonin Scalia, the leading exponent of “judicial restraint,” which holds that unelected judges should not invalidate legislation adopted by the people’s representatives unless it clearly violates the written Constitution, so as not to impose their own “personal views.”

But what happens when justices ostensibly committed to this core principle of conservatism confront a long-standing civil rights statute that offends their view that law should be color-blind, even if the world is not? On February 27, 2013, the Supreme Court’s conservative justices appeared ready to abandon all judicial restraint as the Court heard oral argument in Shelby County v. Holder, a case from Alabama challenging the constitutionality of a central provision of the 1965 Voting Rights Act. That provision requires specific states and counties, each with clear records of denying blacks and others the right to vote, to get federal approval before they change their election laws. The Court has upheld the provision, known as Section 5, on four previous occasions, reasoning that the Constitution’s Fourteenth and Fifteenth Amendments expressly assign Congress broad power to enforce voting rights.

This time around, though, it looks like the Court will condemn the very provision it has repeatedly blessed. If so, the decision would mark the first time since 1875 that the Court has struck down a federal voting rights statute. And if the Court also imposes new limits on affirmative action, as it may well do in a case reviewing the University of Texas’s admissions program, the term could shape the Roberts Court’s legacy as one of the most hostile since the Civil War to efforts to redress continuing racial inequality.

Section 5 requires nine states and select jurisdictions in seven other states to obtain approval from the Justice Department or a three-judge federal court in Washington, D.C., for any change in their voting laws. To get approval, called “preclearance,” they must show that the proposed change does not deny or abridge the right to vote based on race or color. In most instances, the entire process can be done by mail, and Washington blocks very few proposed changes. But by putting the burden on the state to show that its law is valid, Section 5 deters states from illegal voting practices. Congress initially imposed this preclearance requirement on states with the worst records of race discrimination in voting; not surprisingly they were concentrated in the South. In addition to Alabama, they still include Georgia, Louisiana, Mississippi, South Carolina, Texas, and Virginia.

The legal issue before the Court is whether Section 5 has become unconstitutional because times have changed, rendering a preclearance requirement that was justified for fifty-one years no longer “appropriate” to remedy discriminatory voting tactics. But the questions posed by conservative justices during oral argument invoked concepts that have little or no basis in the Constitution or in the arguments made by Shelby County, the largely white suburb of Birmingham, Alabama, that has challenged the act.

Justice Antonin Scalia, for example, dismissed the Voting Rights Act as “the perpetuation of racial entitlement.” He insisted that if the Court does not step in to invalidate this “entitlement,” Congress never will. But this is not a constitutional argument. Shelby County’s lawyers do not contend that the act violates the Constitution’s Equal Protection Clause. And instead of citing any precedent, Scalia simply asserted that “it’s been written about. Whenever a society adopts racial entitlements, it is very difficult to get out of them through the normal political processes.” Scalia did not explain why the right not to have one’s vote abridged on the basis of one’s color is a “racial entitlement,” or what provision of the Constitution empowers him to impose this “personal view” on the people.

Justice Anthony Kennedy expressed more concern for equal protection of the states than of minority voters. He suggested that there’s something wrong with Congress treating different states differently, even though Congress has long enacted laws that have different effects on different states, or even that single out individual states for particular treatment. For example, the federal government dumps nearly all of its radioactive waste in a single state, Nevada, yet when Nevada sued to challenge this treatment as a violation of its equal sovereignty, the D.C. Circuit rejected the argument as constitutionally unfounded.1 And when the Supreme Court first upheld Section 5, it rejected South Carolina’s argument that it was being treated unequally, saying:


The doctrine of the equality of the States…does not bar this approach, for that doctrine applies only to the terms upon which States are admitted to the Union, and not to the remedies for local evils which have subsequently appeared.2

In keeping with judicial restraint, Chief Justice John Roberts has maintained in the past that judges should limit themselves to deciding only what is necessary to resolve a particular dispute. But during the oral argument he swept aside arguments that this case could be narrowly decided on the ground that it was certainly valid to apply Section 5 requirements to Shelby County, Alabama, in view of that county’s and that state’s long and continuing record of voting discrimination. And not one of the conservative justices even mentioned the Court’s long-standing rule that Congress deserves substantial leeway as a coequal branch in fashioning remedies for racial discrimination in voting. The views on display during the oral argument, in short, were not conservative but radical, proposing to do what no Court has done before, on the basis of concerns that have little support in precedent, and in Scalia’s case, that were not even raised by the parties.

The Voting Rights Act is the most successful antidiscrimination law in US history. It has transformed a nation in which minority voters were routinely and systematically denied access to the ballot box into one where restrictions on registration and voting are the exception. And the act has defeated many attempts to gerrymander minority voters into districts designed to minimize or eliminate their influence.

Shelby County argued in essence that Section 5 is a victim of its own success. The provision covers states that in the 1960s had used literacy tests to block minority voting, but that form of discrimination is now flatly illegal and effectively nonexistent. It no longer makes sense, Shelby County maintained, to impose Section 5 on states that may have had bad records in the 1960s and 1970s but are very different today.

But in 2006, when Congress decided to extend Section 5 for twenty-five years, it found that while there has been great progress, race discrimination in voting persists in different forms today. “Racially polarized voting,” in which white and minority voters divide along racial lines over the candidates they support, remains prevalent 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, with the result that candidates will need to appeal only to the white majority. And because black and Latino 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 their prime motive.

Section 5 has provided an effective and flexible way to address these continuing problems. As indicated above, it applies to specific states and locales that have histories of voter discrimination. But states and counties may “bail out” of this requirement by showing to a court that they have not discriminated for ten years, and many jurisdictions have successfully done so. The law also empowers courts to “bail in” jurisdictions that were not originally covered but show a persistent pattern of discrimination, and courts have imposed this requirement on jurisdictions in nine states, including New York.

The conservative justices questioned whether the formula for determining whether Section 5 should apply, based on historical voting practices from the 1960s and 1970s, remains appropriate today. But when Congress considered whether to extend Section 5, it knew that the Court had four times ruled that Section 5’s formula for such coverage was valid, and it specifically found that the problem of voting discrimination in the covered states had not been eliminated.

In fact, 81 percent of successful voter discrimination lawsuits in the twenty-five years leading up to 2006 involved jurisdictions covered by Section 5. Those jurisdictions represent less than one quarter of the nation’s population, and they ought to be less vulnerable to lawsuits precisely because their voting rules must satisfy preclearance. But some of the states have persisted in discrimination. 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 it 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.

The conservative justices objected that Section 5’s preclearance requirement goes too far 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. By contrast, Section 5 creates an efficient administrative process and puts the burden on states and localities with bad records to show that their changes to voting laws are not discriminatory. The deterrent effects of the preclearance process 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.


How the Court decides this case will turn on its respect for Congress’s power to enforce the Fourteenth and Fifteenth Amendments. Those post–Civil War amendments do not merely create rights enforceable by courts, as do other “individual rights” provisions in the Bill of Rights. They expressly authorize Congress to enforce their guarantees through “appropriate legislation.” Facing the need to eradicate the institution of slavery and its pernicious effects, the drafters of the amendments foresaw that judicial enforcement might not be enough to make equality guarantees meaningful. Moreover, given the nature of the problem they were addressing, the framers of those amendments surely understood that the power might be employed differently in the South, where the problem was most acute.

Past Supreme Court decisions have found that Congress, in exercising this authority, may not only punish violations of the Constitution but may pass preventive laws to forestall such violations. Thus, even though the Court has ruled that only laws that are discriminatory in purpose violate the Constitution, Congress can also prohibit state practices that have a discriminatory effect. Section 5 does just that. It requires the covered states and jurisdictions to show that their voting rules not only are not intended to undermine minority voting rights, but also will not have that effect.

The Court has previously said that Congress may use “any rational means” to enforce voting rights, a standard designed to afford Congress broad defer- ence, and to ensure that the Court not impose its own value judgments. Today’s Court, however, is dominated by conservative justices committed to a “color- blind” view of equality. They object to laws that take race into account, even for purposes of protecting minorities against discrimination. Section 5 bothers these justices because in order to ensure that a change in voting laws does not have a discriminatory effect, states and local jurisdictions must consider the racial impact that an apparently neutral change to a voting law might have. (Decisions to require voter IDs, or to alter district lines, or to change polling places, for example, may disproportionately affect black and Latino voters even if not intended to do so.) But the Justices’ concerns about color blindness should play no part in resolving the Shelby County case, which asks only whether Congress has exceeded its power to enact “appropriate legislation,” and presents no argument that Section 5 violates equal protection.

Before Congress reenacted Section 5 in 2006, it held twenty-one separate hearings, compiling a record of over 15,000 pages. On that basis, it concluded that Section 5’s preclearance obligations will remain necessary for another twenty-five years in the jurisdictions with the worst historical records—unless those states or localities can demonstrate that they have a clean record and “bail out.”

That judgment reflected a comprehensive review of facts and actual practices that went far beyond the capacity of a Court hearing a single case. According to Supreme Court precedent, because the Constitution gives Congress coequal enforcement authority, Congress’s judgment deserves deference unless it is irrational. But in this matter Congress’s judgment is unfortunately exceedingly well founded. We have not achieved color blindness, and pretending that we have done so will only undermine minority rights. 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.

The Court’s conservatives proclaim fidelity to a philosophy of judging that gives deference to the decisions of our elected branches, and that warns judges not to confuse their own ideological commitments with constitutional commands. The Fifteenth Amendment authorizes Congress, not the Court, to enact “appropriate legislation,” and for over fifty years, Section 5 has been deemed appropriate to address the continuing legacy of voting discrimination. At oral argument, the conservative justices seemed ready to jettison that tradition, on the basis of personal commitments not found in precedent or the Constitution’s commands. We can only hope that when it comes to writing the decision, they will resist the temptation, as Justice Scalia put it, to “impose [their] own favored social and economic dispositions nationwide.”

—March 7, 2013