The following is a guest post from Rick Pildes:
In light of today’s oral argument concerning the constitutionality of Section 5 of the VRA, I remain deeply disappointed that Congress did nothing in 2006 either to update the scope of Section 5′s coverage or to explain why it continued to make sense to continue to cover all the areas (and only the areas) first put under Section 5′s unique regime in the 1960s (or, at latest, 1975). Congress’ failure to do so now appears likely to be the basis for a Supreme Court decision that will hold Section 5 unconstitutional, to the extent oral argument foreshadows outcomes.
The House did not even consider evidence comparing race and voting issues in the covered and non-covered jurisdictions; it did not seem to consider these comparisons necessary or relevant. The Senate Judiciary Committee was certainly told in 2006 that the failure to update the Act would put it in constitutional jeopardy. But even there, the only major piece of evidence comparing the covered and non-covered jurisdictions before the Senate was “the Katz study,” not designed for this purpose in the first place, and which subsequent academic work (here, here and here) has shown does not provide significant evidence that distinguishes between the covered and non-covered areas. To be sure, meaningful distinctions might exist between covered and non-covered areas, or between some of the covered areas and those not covered. But the record before Congress was simply not constructed with this comparative question very much in mind, let alone with that question being a central focus of the congressional process.
So why did Congress not look in more detail at what was going on in both the covered and non-covered areas and modernize Section 5, instead of simply extending Section 5 for another 25 years unchanged in coverage?
The actual answer is realpolitik: it was politically easier for Congress to simply reaffirm the status quo, rather than confront the difficult policy and political questions posed by making judgments about where problems of race and voting rights were most acute today (are Ohio and Pennsylvania similar today to Virginia and North Carolina?). As I wrote at the time in the Yale Law Journal online, in a short essay called Political Avoidance, Constitutional Theory, and the Voting Rights Act, by failing to update the Act:
Congress has, whether intentionally or not, in effect thrown down a gauntlet to the Court. The renewed VRA . . . makes no concessions to the[Court's] post-1982 Boerne doctrines nor to the social, political, and institutional changes since 1982. . . . Section 5 stands at the intersection of race-conscious policymaking and federalism, the latter in the unique context of regionally specific legislation; in each of these domains, the Court has insisted that legislation rest on an adequately documented foundation. [R]ealpolitik provides the best explanation for why Congress left the VRA’s essential structure and coverage unchanged. The question waiting in the wings is whether realpolitik provides an adequate justification when the Supreme Court confronts the inevitable constitutional challenge to the power of Congress to reenact the distinct coverage regime of section 5 for another twenty-five years.
Similarly, Professor Nate Persily, writing about the legislative process in 2006, concluded that any debate “about the purpose and utility of section 5 itself . . . likely would have led to the complete unraveling of the bill.”
If today’s argument accurately predicts the outcome, it seems to suggest that realpolitik is going to be an insufficient explanation to meet a majority of the Court’s judgment about what constitutional doctrine requires in this area.