June 20, 2006

Katz: Why Reauthorization is Different

Numerous posts, to date, have focused on whether Section 5 should be extended in its current form, and whether Supreme Court will uphold it if it is. With the House of Representatives scheduled to vote this week on a bill to reauthorize Section 5 for another quarter century, I thought I'd offer a couple of thoughts on the second question. Specifically, how bad do things need to be in covered jurisdictions for the Court to deem a reauthorized Section 5 constitutional?

The prevailing view seems to be "pretty bad," with supporters and opponents of reauthorization disagreeing most vigorously about precisely how bad things are. It's an odd debate, particularly for supporters of reauthorization, who find themselves simultaneously celebrating all that preclearance has accomplished while lamenting the dire state of minority political participation in covered jurisdictions.

This gloomy view reflects the indisputable fact that discrimination in voting persists, and much of it remains quite serious. But it is also the upshot of the widely shared assumption that reauthorization of Section 5 will survive constitutional scrutiny only if Congress documents pervasive unconstitutional conduct in covered jurisdictions for which preclearance offers a remedy. Pam Karlan has recently argued otherwise, and in a forthcoming article (available here ) I take issue with this assumption as well.

I agree with much of what Pam has to say and indeed have written previously (see Reinforcing Representation, 101 Mich. L. Rev. 2341 (2003)) about the deference the Court has consistently accorded to the Voting Rights Act, even as the justices have articulated new and stringent limitations on congressional power to enforce civil rights in other realms. I think, however, that there is a distinct reason why reauthorization should not hinge on pervasive unconstitutional conduct in covered jurisdictions. Simply put, Section 5 is an operational statute. It was put into place forty years ago to combat precisely the type of pervasive discrimination Supreme Court decisions like City of Boerne v. Flores now demand for new congressional legislation.

Boerne and its progeny all involved the question whether a problem Congress sought to address was significant enough to warrant a new congressional statute. In that context, documentation of pervasive unconstitutional conduct signals a problem in need of a remedy. The Court should not, however, require a record of such conduct when Congress reauthorizes an existing statute. Indeed, if, four decades out, the evidence showed that covered jurisdictions were in fact still characterized by pervasive unconstitutional conduct of the sort preclearance was meant to target, then we should scrap Section 5 and hammer out a new statute that might actually address these problems.

Put differently, Section 5's very success in addressing racial discrimination in voting is itself neither proof that preclearance has become obsolete nor license for the statute to continue indefinitely. Instead, the question whether preclearance is still needed depends not on a raw assessment of the present scope of unconstitutional conduct in covered jurisdictions, but instead on a predictive judgment about the likely prevalence of such conduct absent the constraints imposed by Section 5.

Considerable evidence suggests that things have changed dramatically for the better in covered jurisdictions. While blatantly unconstitutional conduct has hardly been eradicated, contemporary manifestations of racial discrimination in voting are jarring precisely because they are no longer the norm, as they were before Section 5 was implemented. And yet, because these developments occurred in communities subject to the constraints imposed by Section 5, and, without doubt, were shaped by them, the question arises whether they would persist in the absence of the preclearance process.

That question can hardly be answered with certainty. Still, a study we conducted here at Michigan last year examining all published decisions under Section 2 of the VRA offers one lens through which to consider this prospect. Judicial findings under Section 2's totality of circumstances test offer a rich source of information detailing political participation nationwide, and a basis on which to compare such participation in covered and non-covered jurisdictions. I won't rehash all those findings here, but a few points are worthy of note.
Covered jurisdictions account for the majority of the Section 2 lawsuits in which plaintiffs achieved successful outcomes since 1982, even though less than one-quarter of the U.S. population resides in covered jurisdictions, courts in the region arguably apply standards that make success on a Section 2 claim more difficult, and the preclearance process blocks some portion of discriminatory electoral changes that might otherwise be challenged under Section 2.

More courts, moreover, have found the so-called Senate factors to be satisfied in covered jurisdictions than in non-covered jurisdictions. In particular, courts in covered jurisdictions have both found and have been more likely to so find: acts of official discrimination that curtail voting rights, the use of devices that enhance opportunities for discrimination against minority voters, a lower level of minority voter registration and turnout, contemporary voting opportunities shaped by the continuing effects of discrimination in various socio-economic realms, racial appeals, and a lack of success by minority candidates. Courts in both covered and non-covered jurisdictions found legally significant racial bloc voting in an equal number of lawsuits, but more courts in covered jurisdictions documented voting patterns that were extremely polarized and did so in a greater proportion of cases than did courts in non-covered jurisdictions. A racially exclusive slating process is the only Senate factor that more courts have found in non-covered jurisdictions than in covered ones.

None of this, to be sure, establishes a contemporary constitutional violation. Section 2's totality of circumstance inquiry nevertheless calls for examination of these factors based on the view that they all impede minority political participation and render electoral practices more likely to result in actionable discrimination against minority groups. This actionable discrimination is not necessarily discrimination that violates the Constitution. And yet, the reasons that render these problems probative of a Section 2 violation also make them indicia of an environment in which past unconstitutional conduct has yet to be fully remedied and future constitutional injuries are likely to arise.

That, of course, is not to say that preclearance necessarily remains 'congruent and proportional' so long as a full remedy has yet to be achieved, a prospect of future constitutional injuries exists, or identifiable differences persist between covered and non-covered jurisdictions. Indeed, it is not clear that the differences identified are sufficient to render a reauthorized Section 5 congruent and proportional legislation in the eyes of the Roberts Court, or indeed whether they should. But it is a debate about differences such as these that we should be having. The debate about reauthorization has instead focused for too long on the wrong question. The scope of unconstitutional conduct in covered jurisdictions cannot tell us whether preclearance is still needed. The debate on reauthorization should focus on evidence that might.
--Ellen Katz

Posted by Rick Hasen at June 20, 2006 11:26 AM