The Court and the Constitutionality of Section 5 of the VRA

A couple months ago, the SCOTUS blog ran a Symposium on the constitutional issues concerning Section 5 of the Voting Rights Act. In light of today’s Supreme Court decision to address those issues in the Shelby County case, here’s an excerpt from my contribution to that Symposium (the full contribution is here, the full Symposium here):

Congress has put the Supreme Court in an excruciatingly difficult position. The parts of the country the VRA singles out today for Section 5’s unique regime of federal receivership remain essentially unchanged since 1965 (when most of the covered jurisdictions were brought in) and 1975 (when those with certain language minorities were added). In 2006, when Congress adopted the current version of Section 5, nearly twenty-five years had passed since Congress had last re-visited Section 5; many VRA experts assumed Congress would inevitably update the Act in one way or another — particularly its geographic scope — to reflect the demographic, social, legal, and political changes that had taken place since 1982, let alone since 1965. But Congress avoided the provocative and difficult questions these changes unleashed. As Section 5 emerged in 2006, its geographically selective targeting remained unchanged – neither expanded, contracted, nor modified in any way from the contours Section 5 had developed in the 1960s and 70s. In addition, Congress locked that structure into place for another twenty-five years, as long as any extension of Section 5 in the Act’s history. Until 2031, then, the parts of the country put in the 1960s and 70s under the only geographically selective regime of federal receivership in American history will remain there. Thus Congress forced onto the Court’s agenda the question: is there a constitutionally sufficient foundation to justify singling out today (and until 2031) the exact same areas, and only those areas, initially and properly singled out some forty or so years ago?

. . .
When I testified before the Senate Judiciary Committee in 2006, I was concerned that the evidence in the legislative record did not adequately address whether there continued to be “systematic differences between the covered and the non-covered areas of the United States [,] . . . and, in fact, the evidence that is in the record suggests that there is more similarity than difference.” Congress simply did not seem interested in this question or wanted to avoid it. The legislative process had been designed as if Congress’s only constitutional (and policy) obligation were to establish that race-related problems concerning voting rights continued to exist within parts of the already-covered areas – regardless whether similar problems were occurring at similar rates in other parts of the country. Instead, to be on the safe side of modern constitutional doctrine, which had changed dramatically since Congress had last re-visited Section 5 in 1982, I urged Congress to assess where voting problems were occurring today and tailor Section 5 accordingly. In NAMUDNO¸ the Supreme Court quoted this testimony and concluded that “difficult constitutional questions” existed concerning whether contemporary circumstances justified the current scope of Section 5. Implicitly, the Court gave Congress a second chance to tackle the issues it had avoided. To no one’s surprise, Congress once again preferred to do nothing and leave the status quo intact — thus effectively putting the burden back on the Court.

At least three different possibilities exist concerning the foundation constitutional doctrine might require to justify today’s Section 5. Commentary often does not distinguish between these three: (1) taking the covered jurisdictions in isolation, Congress might only have to show that voting problems continue to exist in those areas; (2) taking the covered jurisdictions in the aggregate and comparing them to the non-covered ones, Congress might only have to show significant continuing differences between “the covered” and the “non-covered” areas; (3) taking the covered jurisdictions one by one, Congress might have to show that significantly different problems plague particular jurisdictions to justify their continued inclusion (at least at the state level, as a first cut at requiring close tailoring between Section 5’s coverage and contemporary circumstances).

Congress implicitly legislated on the assumption that (1) defined its constitutional obligations, but NAMUDNO appears to signal that the Court is not going to accept that approach. If so, the critical question will be the choice the Court makes between theories (2) and (3) — and how strong the evidence is to support the approach the Court adopts. Put more concretely, the question is whether, if unique voting-rights problems continue to infect Alabama, Mississippi, Louisiana, and Texas (if recent three-judge court decisions involving Texas are upheld) but not Virginia, North Carolina, and Georgia, for example, is that sufficient to uphold the constitutionality of Section 5, as (2) would suggest? Or can Congress apply Section 5 only in the former states – if these are the only places where these actual problems distinctively exist, as (3) would require?
. . .
As I have chronicled elsewhere, realpolitik provides the best explanation for why Congress left Section 5’s essential structure and coverage unchanged. To try to update Section 5’s coverage would have opened up too many charged questions about where the interaction of race and electoral politics had improved in the country, remained the same, or gotten worse. The question is whether realpolitik will be an adequate justification to a Supreme Court majority that cannot relish the headline, “Supreme Court Holds Voting Rights Act Unconstitutional,” but that has already expressed serious reservations about a Section 5 that extends to 2031 a geographically-selective regime whose targeting remains unchanged since the 1960s and 70s.

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