Is Section 5 of the Voting Rights Act still constitutional?  The Supreme Court will most likely take up that question in the coming Term.  The Court left that question unanswered in 2009, when it decided Northwest Austin Municipal Utility District Number One v. Holder (NAMUDNO) on purely statutory grounds, allowing theTexas utility district to bail out from coverage under Section 5.

The Texas Attorney General’s announcement that the state will appeal a voter ID decision in Texas v. Holder issued by a three-judge panel under Section 5 gives us every reason to think the Court will address the issue in the next Term.  Section 5 gives Texas a direct appeal to the Supreme Court.  Unless the Court sees an easy way to reverse the lower court’s factual findings, it would likely have to address the constitutional challenge to Section 5.  With pending petitions for certiorari already filed in two other Section 5 cases—Shelby County v. Holder and Nix v. Holder—the Court will likely note probable appellate jurisdiction in the Texas case and then grant cert. in Shelby County and Nix to have the benefit of the posture in those cases.

Section 5 was, originally, a temporary, five-year emergency provision of the Voting Rights Act that forbade covered jurisdictions from making any changes in their voting  and election rules without preclearance from either the Justice Department or a three-judge panel in the District of Columbia.  Section 5 has been renewed four times, the last time in 2006 for an additional twenty-five  years.  This constitutes an extraordinary intrusion into state sovereignty.

The covered jurisdictions are nine entire states – Alabama, Alaska, Arizona, Georgia, Louisiana, Mississippi, South Carolina, Texas, and Virginia – as well as parts of seven other states (in California, Florida, New York, North Carolina, Michigan, and New Hampshire). The coverage formula is based on forty-plus-year-old data: voter registration or turnout below fifty percent in the 1964, 1968, or 1972 presidential elections.  This would be the equivalent of having based Section 5 coverage when it was passed in 1965 on the turnout in the Herbert Hoover vs. Franklin Roosevelt presidential race of 1932.  Congress not only refused to update the formula to more recent elections when it renewed Section 5 in 2006, it made the legal standard for Section 5 even harder for covered jurisdictions to meet.  Jurisdictions must demonstrate that the voting change “neither has the purpose nor will have the effect of denying or abridging the right to vote on account of race or color.”  The sole inquiry is now whether the challenged law “has the purpose or will have the effect of diminishing the ability any citizens of the United States on account of race or color…to elect their preferred candidates of choice.”

There is no question that in 1965, when there was widespread, systematic, state-sponsored discrimination against black voters in states like Alabama and Mississippi, that the Supreme Court could justify an abrogation of “our historic tradition that all the states enjoy ‘equal sovereignty’” and subject states engaging in such illicit behavior to special rules.  As the Court said in NAMUDNO, “the problems Congress faced when it passed the Act were so dire that ‘exceptional conditions [could] justify legislative measures not otherwise appropriate.’”

But the conditions that existed in 1965 have almost entirely disappeared.  No one can rationally claim that there is still widespread, systematic discrimination in the voting context in the covered states or that those “exceptional conditions” still exist.  As the Court recognized in NAMUDNO, “Things have changed in the South.”  The turnout of voters “and registration rates now approach parity…discriminatory evasions of federal decrees are rare.  And minority candidates hold office at unprecedented levels.”   As Justice Thomas said in his dissent, “[t]he extensive pattern of discrimination that led the Court to previously uphold § 5 as enforcing the Fifteenth Amendment no longer exists.”  Not only has the disparity in black and white registration and turnout “nearly vanished,” in some states like Mississippi “black voter registration actually exceeded white voter registration.”

The actions of Congress in 2006 and the enforcement history of the Justice Department have only worsened the grave constitutional flaws of Section 5.  The renewal in 2006 was based on severely outdated data and failed to identify those jurisdictions most likely to engage in discriminatory voting practices.  Even if there were some plausible nexus between the coverage formula and likely constitutional violations, the severe remedy of forcing jurisdictions to seek advance federal approval of state laws is “so out of proportion…that it cannot be understood as responsive to, or designed to prevent, unconstitutional behavior” under the standard set out in City of Boerne v. Flores (1997).

In fact, Congress aggravated the unconstitutional defects of Section 5 during the renewal when it overruled the Supreme Court’s decisions in Georgia v. Ashcroft (2003) and Reno v. Bossier Parish School Board (2000).  Those decisions interpreted the “purpose” and “effects” language of the Section 5 legal standard in a manner that ameliorated the inherent constitutional burdens of Section 5.

As the Court said in Bossier Parish, extending Section 5 to “discriminatory but nonretrogressive vote-dilutive purposes” would “blur the distinction between Section 2 and Section 5” of the Voting Rights Act.  That reading of the statute would exacerbate the substantial federalism costs of the preclearance procedure. The Ashcroft decision established that states have substantial discretion in how best to accommodate their own unique interests in preventing discrimination in the exercise of the electoral franchise and “to foster our transformation to a society that is no longer fixated on race.”  Thus Section 5 gave states the ability to choose one theory of elective representation over the other.  But the 2006 change in the language of Section 5 rejected the holdings of both decisions, ensuring that racial considerations became the main consideration in Section 5 cases, and guaranteeing that the unconstitutional goal of maximizing majority-minority districts at any cost becomes the rule in redistricting cases.

Section 5’s constitutionality has also been called into question by DOJ’s refusal to preclear legislation like voter ID that is unquestionably permissible in non-covered states according to the Supreme Court in Crawford v. Marion County Election Board (2008).  This disparate treatment that holds states to different standards is clearly unconstitutional.

DOJ also has a long and embarrassing record of overreach in Section 5 redistricting cases.  Throughout the 1990s, DOJ routinely invoked a discriminatory “purpose” as the basis for withholding preclearance from redistricting plans that did not maximize minority voting strength.  The Supreme Court found such behavior “insupportable” in Miller v. Johnson (1995).  DOJ’s approach to preclearance in Miller effectively forced Georgia to violate the Equal Protection Clause by making race “the predominant, overriding factor” in redistricting.  DOJ was forced to pay almost $600,000 in attorney’s fees to the plaintiffs in that case for its improper behavior and the protracted litigation that resulted.

Similarly, in a Louisiana redistricting case, Hays v. Louisiana (1993), a federal court held that DOJ’s application of Section 5 was “unapproved by Congress and unsanctioned by the courts.”  In fact, DOJ “arrogated the power to use Section 5 preclearance as a sword to implement forcibly its own redistricting policies.”  DOJ paid more than $1.1 million to settle claims for attorney’s fees arising out of that case.  The 2006 change in the legal standard makes this even more likely to occur.  As Prof. Nathaniel Persily has said, “There is a risk that the purpose inquiry will turn into another opportunity for partisan infection of the preclearance process.”

In the two Section 5 cases in which cert. petitions have been filed, Shelby County argues that Section 5 is unconstitutional because it improperly differentiates between the states, uses a coverage formula based on forty-year-old or older data that no longer reflects today’s conditions, and forces states to rely excessively on racial considerations in designing their election policies.  In the Nix case, voters and independent candidates in Kinston, North Carolina, a majority-black town, argue that DOJ’s refusal to preclear a change to nonpartisan city elections approved by a majority of voters in a referendum demonstrates the unconstitutionality of Section 5.  They claim it shows the manipulation by DOJ of Section 5 for partisan reasons since DOJ’s refusal was based on the rather paternalistic theory that minority candidates would receive fewer votes if they could not identify themselves as Democrats.  It was irrelevant to DOJ that a majority of black voters had approved this change.

The Supreme Court should take these two cases along with the Texas voter ID case.  Having avoided dealing with an important issue that affects our election process in 2009, it should not duck its responsibility again.  The Court has an obligation to determine whether an extraordinary intrusion into state sovereignty – a supposedly temporary provision passed in 1965 – is still constitutional today.  If the Court does take these cases, then as Justice Thomas concluded in the NAMUDNO decision, the burden will be on the government to prove “that the extreme circumstances warranting § 5’s enactment persist today.  A record of scattered infringement of the right to vote is not a constitutionally acceptable substitute.”

Hans von Spakovsky