President Johnson signs the Voting Rights Act of 1965.
Section 1. The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any state on account of race, color, or previous condition of servitude.
Section 2. The Congress shall have power to enforce this article by appropriate legislation.
Who has the right to determine what's appropriate
to safeguard the right to vote? Is it a Congress comprised of representatives of the people, with full fact-finding authority, which in 2005-06 "held 21 hearings, heard from scores of witnesses, received a number of investigative reports and other written documentation of continuing discrimination in covered jurisdictions... [compiling] more than 15,000 pages" of evidence for the legislative record, and passed Voting Rights Act reauthorization by lopsided bipartisan majorities of 98-0 in the Senate and 390-33 in the House?
No, apparently, it's a conservative activist Supreme Court, which in its 5-4 decision today determined that Congress' 2006 reauthorization of the Voting Rights Act did not adequately reflect current conditions and unconstitutionally infringed on states' rights to regulate their own elections. Equal "dignity" for the states, a bare majority holds, matters more than equal protection for their voters.
Now, some background: As I explained four years ago when the Court last took up the VRA, Section 5 created federal oversight of local elections administration, requiring that those states which had a history of discriminatory voting practices ("covered jurisdictions") couldn't make any changes that affected voting—couldn't even move the location of a polling place—without getting "preclearance" from the United States Department of Justice. That list of covered jurisdictions constitutes Section 4 of the Act, and not only includes many Southern states but also most of New York City, isolated parts of Michigan and South Dakota, and even some California counties (among other locations). Section 2 of the Act, on the other hand, covers all of America and prohibits any voting practice or procedure that has a discriminatory result, regardless of whether intentional discrimination can be proven—but unlike Section 5, it's DOJ's burden to prove discrimination, not the jurisdiction's burden to prove lack of ill effect.
In 2009, the Court stared at Section 4 and punted at fourth-and-one, with an 8-1 decision of the Court telling Congress that "the statute’s coverage formula is based on data that is now more than 35 years old, and there is considerable evidence that it fails to account for current political conditions," giving it one more chance to update the formula.
Now, four years later, it's "you had your chance, and you didn't." What the Court did today was strike Section 4 as unconstitutional, saying the coverage formula Congress re-passed in 2006 (the same jurisdictions as before) did not adequately reflect contemporary concerns. This renders the preclearance regime a dead letter until and unless Congress can engage in the horse-trading necessary to determine a new list of which states and counties must go to the constitutional principal's office, and that may never, never happen.
Continue below the fold to learn why the Chief Justice claimed this was necessary.
But first, did you know that the U.S. Constitution does not guarantee the right to vote for everyone, but we are fighting to change this. Please sign the petition to join Daily Kos, Color of Change, and a growing movement to pass a constitutional amendment guaranteeing and protecting the freedom to vote for all.
Because, federalism!, writes the chief justice for the five you'd expect:
More specifically, “ ‘the Framers of the Constitution intended the States to keep for themselves, as provided in the Tenth Amendment, the power to regulate elections.’ ” Of course, the Federal Government retains significant control over federal elections. For instance, the Constitution authorizes Congress to establish the time and manner for electing Senators and Representatives. Art. I, §4, cl. 1. But States have “broad powers to determine the conditions under which the right of suffrage may be exercised.” And “[e]ach State has the power to prescribe the qualifications of its officers and the manner in which they shall be chosen.” Drawing lines for congressional districts is likewise “primarily the duty and responsibility of the State.”
Not only do States retain sovereignty under the Constitution, there is also a “fundamental principle of equal sovereignty” among the States. Over a hundred years ago, this Court explained that our Nation “was and is a union of States, equal in power, dignity and authority.” Indeed, “the constitutional equality of the States is essential to the harmonious operation of the scheme upon which the Republic was organized.” At the same time, as we made clear [four years ago], the fundamental principle of equal sovereignty remains highly pertinent in assessing subsequent disparate treatment of States.
And changing times:
Nearly 50 years later, things have changed dramatically. Shelby County contends that the preclearance re-quirement, even without regard to its disparate coverage, is now unconstitutional. Its arguments have a good deal of force. In the covered jurisdictions, “[v]oter turnout and registration rates now approach parity. Blatantly discriminatory evasions of federal decrees are rare. And minority candidates hold office at unprecedented levels.” The tests and devices that blocked access to the ballot have been forbidden nationwide for over 40 years.
Those conclusions are not ours alone. Congress said the same when it reauthorized the Act in 2006, writing that “[s]ignificant progress has been made in eliminating first generation barriers experienced by minority voters, including increased numbers of registered minority voters, minority voter turnout, and minority representation in Congress, State legislatures, and local elected offices.” The House Report elaborated that “the number of African-Americans who are registered and who turn out to cast ballots has increased significantly over the last 40 years, particularly since 1982,” and noted that “[i]n some circumstances, minorities register to vote and cast ballots at levels that surpass those of white voters.” That Report also explained that there have been “significant increases in the number of African-Americans serving in elected offices”; more specifically, there has been approximately a 1,000 percent increase since 1965 in the number of African-American elected officials in the six States originally covered by the Voting Rights Act....
[H]istory did not end in 1965. By the time the Act was reauthorized in 2006, there had been 40 more years of it. In assessing the “current need[ ]” for a preclearance system that treats States differently from one another today, that history cannot be ignored. During that time, largely because of the Voting Rights Act, voting tests were abolished, disparities in voter registration and turnout due to race were erased, and African-Americans attained political office in record numbers. And yet the coverage formula that Congress reauthorized in 2006 ignores these developments, keeping the focus on decades-old data relevant to decades-old problems, rather than current data reflecting current needs.
The Fifteenth Amendment commands that the right to vote shall not be denied or abridged on account of race or color, and it gives Congress the power to enforce that command. The Amendment is not designed to punish for the past; its purpose is to ensure a better future. To serve that purpose, Congress—if it is to divide the States—must identify those jurisdictions to be singled out on a basis that makes sense in light of current conditions. It cannot rely simply on the past. We made that clear in Northwest Austin, and we make it clear again today.
And as for all that work by Congress in 2005-06? The Court doesn't care, because the result was the same:
Congress did not use the record it compiled to shape a coverage formula grounded in current conditions. It instead reenacted a formula based on 40-year-old facts having no logical relation to the present day. The dissent relies on “second-generation barriers,” which are not impediments to the casting of ballots, but rather electoral arrangements that affect the weight of minority votes. That does not cure the problem. Viewing the preclearance requirements as targeting such efforts simply highlights the irrationality of continued reliance on the §4 coverage formula, which is based on voting tests and access to the ballot, not vote dilution. We cannot pretend that we are reviewing an updated statute, or try our hand at updating the statute ourselves, based on the new record compiled by Congress. Contrary to the dissent’s contention, we are not ignoring the record; we are simply recognizing that it played no role in shaping the statutory formula before us today....
If Congress had started from scratch in 2006, it plainly could not have enacted the present coverage formula. It would have been irrational for Congress to distinguish between States in such a fundamental way based on 40-year-old data, when today’s statistics tell an entirely different story. And it would have been irrational to base coverage on the use of voting tests 40 years ago, when such tests have been illegal since that time. But that is exactly what Congress has done.
[And as for the fact that any formula would likely cover Shelby County, Alabama, the plaintiff here, the chief justice claims "that is like saying that a driver pulled over pursuant to a policy of stopping all redheads cannot complain about that policy, if it turns out his license has expired."]
[INSERT STANDARD MACRO] Justice Thomas would have gone further than his conservative colleagues [OFF], and held that given changes in the South no jurisdictions should be required to future preclearance under any possible formula.
Justice Ginsburg penned the dissent, focusing on why this is terrain on which the Court should have deferred to Congress:
For three reasons, legislation reauthorizing an existing statute is especially likely to satisfy the minimal requirements of the rational-basis test. First, when reauthorization is at issue, Congress has already assembled a legislative record justifying the initial legislation. Congress is en-titled to consider that preexisting record as well as the record before it at the time of the vote on reauthorization. This is especially true where, as here, the Court has repeatedly affirmed the statute’s constitutionality and Congress has adhered to the very model the Court has upheld.
Second, the very fact that reauthorization is necessary arises because Congress has built a temporal limitation into the Act. It has pledged to review, after a span of years (first 15, then 25) and in light of contemporary evidence, the continued need for the VRA. Cf. Grutter v. Bollinger, 539 U. S. 306, 343 (2003) (anticipating, but not guaranteeing, that, in 25 years, “the use of racial preferences [in higher education] will no longer be necessary”).
Third, a reviewing court should expect the record supporting reauthorization to be less stark than the record originally made. Demand for a record of violations equivalent to the one earlier made would expose Congress to a catch-22. If the statute was working, there would be less evidence of discrimination, so opponents might argue that Congress should not be allowed to renew the statute. In contrast, if the statute was not working, there would be plenty of evidence of discrimination, but scant reason to renew a failed regulatory regime.
This is not to suggest that congressional power in this area is limitless. It is this Court’s responsibility to ensure that Congress has used appropriate means. The question meet for judicial review is whether the chosen means are “adapted to carry out the objects the amendments have in view.” The Court’s role, then, is not to substitute its judgment for that of Congress, but to determine whether the legislative record sufficed to show that “Congress could rationally have determined that [its chosen] provisions were appropriate methods.”
In summary, the Constitution vests broad power in Congress to protect the right to vote, and in particular to combat racial discrimination in voting. This Court has repeatedly reaffirmed Congress’ prerogative to use any rational means in exercise of its power in this area. And both precedent and logic dictate that the rational-means test should be easier to satisfy, and the burden on the statute’s challenger should be higher, when what is at issue is the reauthorization of a remedy that the Court has previously affirmed, and that Congress found, from contemporary evidence, to be working to advance the legislature’s legitimate objective.
And preclearance works:
All told, between 1982 and 2006, DOJ objections blocked over 700 voting changes based on a determination that the changes were discriminatory. Congress found that the majority of DOJ objections included findings of discriminatory intent, and that the changes blocked by preclearance were “calculated decisions to keep minority voters from fully participating in the political process.” On top of that, over the same time period the DOJ and private plaintiffs succeeded in more than 100 actions to enforce the §5 preclearance requirements.
In addition to blocking proposed voting changes through preclearance, DOJ may request more information from a jurisdiction proposing a change. In turn, the jurisdiction may modify or withdraw the proposed change. The number of such modifications or withdrawals provides an indication of how many discriminatory proposals are deterred without need for formal objection. Congress received evidence that more than 800 proposed changes were altered or withdrawn since the last reauthorization in 1982. Congress also received empirical studies finding that DOJ’s requests for more information had a significant effect on the degree to which covered jurisdictions “compl[ied] with their obligatio[n]” to protect minority voting rights.
For example, here's some of the changes blocked thanks to preclearance (the opinion has more):
Following the 2000 census, the City of Albany, Georgia, proposed a redistricting plan that DOJ found to be “designed with the purpose to limit and retrogress the increased black voting strength . . . in the city as a whole.”
In 2001, the mayor and all-white five-member Board of Aldermen of Kilmichael, Mississippi, abruptly canceled the town’s election after “an unprecedented number” of African-American can-didates announced they were running for office. DOJ required an election, and the town elected its first black mayor and three black aldermen.
In 2006, this Court found that Texas’ attempt to redraw a congressional district to reduce the strength of Latino voters bore “the mark of intentional discrimination that could give rise to an equal protection violation,” and ordered the district redrawn in compliance with the VRA. League of United Latin American Citizens v. Perry, 548 U. S. 399, 440 (2006) . In response, Texas sought to undermine this Court’s order by curtailing early voting in the district, but was blocked by an action to enforce the §5 preclearance requirement.
In 2003, after African-Americans won a majority of the seats on the school board for the first time in history, Charleston County, South Carolina, proposed an at-large voting mechanism for the board. The proposal, made without consulting any of the African-American members of the school board, was found to be an “ ‘exact replica’ ” of an earlier voting scheme that, a federal court had determined, violated the VRA.
In 1993, the City of Millen, Georgia, proposed to delay the election in a majority-black district by two years, leaving that district without representation on the city council while the neighboring majority-white district would have three representatives. DOJ blocked the proposal. The county then sought to move a polling place from a predominantly black neighborhood in the city to an inaccessible location in a predominantly white neighborhood outside city limits.
Moreover, as Justice Ginsburg carefully reviews, Congress had sufficient evidence that the covered jurisdictions still caused a disproportionate share of the discrimination. So:
Congress approached the 2006 reauthorization of the VRA with great care and seriousness. The same cannot be said of the Court’s opinion today. The Court makes no genuine attempt to engage with the massive legislative record that Congress assembled. Instead, it relies on increases in voter registration and turnout as if that were the whole story. Without even identifying a standard of review, the Court dismissively brushes off arguments based on “data from the record,” and declines to enter the “debat[e about] what [the] record shows.” One would expect more from an opinion striking at the heart of the Nation’s signal piece of civil-rights legislation.
I note the most disturbing lapses. First, by what right, given its usual restraint, does the Court even address Shelby County’s facial challenge to the VRA? Second, the Court veers away from controlling precedent regarding the “equal sovereignty” doctrine without even acknowledging that it is doing so. Third, hardly showing the respect ordinarily paid when Congress acts to implement the Civil War Amendments, and as just stressed, the Court does not even deign to grapple with the legislative record.
...Leaping to resolve Shelby County’s facial challenge without considering whether application of the VRA to Shelby County is constitutional, or even addressing the VRA’s severability provision, the Court’s opinion can hardly be described as an exemplar of restrained and moderate decisionmaking. Quite the opposite. Hubris is a fit word for today’s demolition of the VRA.
[T]he Court strikes §4(b)’s coverage provision because, in its view, the provision is not based on “current conditions.” It discounts, however, that one such condition was the preclearance remedy in place in the covered jurisdictions, a remedy Congress designed both to catch discrimination before it causes harm, and to guard against return to old ways. Volumes of evidence supported Congress’ determination that the prospect of retrogression was real. Throwing out preclearance when it has worked and is continuing to work to stop discriminatory changes is like throwing away your umbrella in a rainstorm because you are not getting wet.
This is a bad, bad day. Just imagine what GOP-controlled states are going to try to attempt now.
It’s a little known fact that the U.S. Constitution does not guarantee the right to vote for everyone, but we are fighting to change this. Please sign the petition to join Daily Kos, Color of Change, and a growing movement to pass a constitutional amendment guaranteeing and protecting the freedom to vote for all.