Breaking News: Divided D.C. Circuit Panel Upholds Constitutionality of Voting Rights Act, Teeing Up Issue for Supreme Court

The Shelby County opinion is here.  Judge Williams dissented. The court also issued a unanimous opinion in the related LaRoque case, finding the issue mooted by DOJ’s belated preclearance of the law in question.

From Judge Tatel’s majority opinion in Shelby County:

The point at which section 5’s strong medicine becomes unnecessary and therefore no longer congruent and proportional turns on several critical considerations, including the pervasiveness of serious racial discrimination in voting in covered jurisdictions; the continued need for section 5’s deterrent and blocking effect; and the adequacy of section 2 litigation. These are quintessentially legislative judgments, and Congress, after assembling and analyzing an extensive record, made its decision: section 5’s work is not yet done. Insofar as Congress’s conclusions rest on predictive judgments, we must, contrary to the dissent’s approach, apply a standard of review even “more deferential than we accord to judgments of an administrative agency.” Turner Broad., 520 U.S. at 195. Given that we may not “displace [an agency’s] choice between two fairly conflicting views, even though the court would justifiably have made a different choice had the matter been before it de novo,” Universal Camera Corp. v. NLRB, 340 U.S. 474, 488 (1951), we certainly cannot do so here. Of course, given the heavy federalism costs that section5 imposes, our job is to ensure that Congress’s judgment is reasonable and rests on substantial probative evidence. See Turner Broad., 520 U.S. at 195 (“In reviewing the constitutionality of a statute . . . [o]ur sole obligation is to assure that, in formulating its judgments, Congress has drawn reasonable inferences based on substantial evidence.”
(internal quotation marks omitted)). After thoroughly scrutinizing the record and given that overt racial discrimination persists in covered jurisdictions notwithstanding decades of section 5 preclearance, we, like the district court, are satisfied that Congress’s judgment deserves judicial deference.

The majority also relied upon section 2 evidence, especially Ellen Katz’s study, to make the point that the covered jurisdictions remain at greater risk of intentional discrimination in voting on the basis of race to justify different treatment under the law.  It also relied heavily on the increasing number of jurisdictions “bailing out” from section 5 coverage—this increased bailout activity seems to have been orchestrated directly to allow courts to make this determination.  The majority concludes by noting that it is deferring, although the “legislative record is by no means unambiguous.”

Judge Williams’ dissent dives into the data too, and finds little basis to find a problem with minority voter turnout, the number of minority voter officials, or the extent of unconstitutional state racial discrimination in voting to justify the burden of preclearance in covered jurisdictions of all of these voting changes. He disagrees strongly with the relevance and importance of the section 2 data.

In one portion of the dissent with contemporary relevance, Judge Williams writes:

Why should voter ID laws from South Carolina and Texas be judged by different criteria (at a minimum, a different burden of persuasion, which is often critical in cases involving competing predictions of effect) from those governing Indiana? A glimpse at the charts shows that Indiana ranks “worse” than South Carolina and Texas in registration and voting rates, as well as in black elected officials (Figures I, II and III). As to federal observers, Indiana appears clearly “better”—it received none (Figure IV). As to successful § 2 suits South Carolina and Texas are “worse” than Indiana, but all three are below the top ten offenders, which include five uncovered states (Figure V). This distinction in evaluating the different states’ policies is rational?Despite a congressional record of over 15,000 pages and 22 hearings, Shelby County, 811 F. Supp. 2d at 496, there is little to suggest that § 4(b)’s coverage formula continues to capture jurisdictions with especially high levels of voter discrimination. To the extent that the answer is, as the district court suggested, that Congress wished to “continue to focus on those jurisdictions with the worst historical records of voting discrimination,” id. at 506, such an overwhelming focus on historical practices appears foreclosed by Northwest Austin’s requirement that current burdens be justified by current needs.
It goes without saying that racism persists, as evidenced by the odious examples offered by the majority, see Maj. Op. at 27-29. But without more evidence distinguishing current conditions in the covered jurisdictions from those in the uncovered ones, § 4(b)’s coverage formula appears to be as obsolete in practice as one would expect, in a dynamic society, for markers 34-to-59 years old. Accordingly, I dissent.

Judge Williams held that only the coverage formula was unconstitutional and did not fully reach the constitutionality of section 5 as a whole.  But if the Supreme Court agreed with him, the result would be the same: section 5 would be unconstitutional to apply (though in theory Congress could try to reenact it with a new coverage formula).

And this may be the most significant aspect of things. Judge Williams has provided a way for the conservatives on the Supreme Court to end Section 5 without having to declare that it would necessarily be unconstitutional if Congress tweaked it. And of course in this Congress there would not be a revised section 5.

I expect Shelby County to seek cert., and for the Court to agree to hear this case next term, with a decision likely by June 2013.  It is also possible that another one of these cases, such as the Texas or South Carolina section 5 challenges related to their voter i.d. laws, could leapfrog over these cases and be heard first by the Court.

As to what the Court will do, my money is on the Court holding—one way or another–that section 5 can no longer be enforced against the covered states.


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