In 2013, the Supreme Court held (in Shelby County [Alabama] v. Holder) that the federal government no longer needs preclearance for state voting laws because racism is over in the U.S. (Okay, that’s an exaggeration. See more below.)
Yet, as we saw in the last installment (Department of Justice Performance Evaluation), multiple states have passed multiple laws intended to deny members of minority communities equal access to voting.
The Shelby case involved whether states needed clearance from the Attorney General or federal judges before changing election laws. Under the Voting Rights Act, states required preclearance, which requires either the Attorney General or a court of three judges to find that the proposed state law has neither the purpose nor the effect of “denying or abridging the right to vote on account of race or color.”
The Department of Justice needs to go back and demand the Court revisit this decision. The Court made its ruling on beliefs clearly at odds with the facts. It held that Section 4(b) of the Voting Rights Act of 1965 was unconstitutional because it was based on data over 40 years old. In order to use Section 4(b) to force states to get preclearance to pass laws changing their election procedures, Congress would need to change the coverage formula.
The Court Ruling
Writing for the Court majority, Chief Justice John Roberts wrote, "The question is whether the Act’s extraordinary measures, including its disparate treatment of the States, continue to satisfy constitutional requirements.” (You can see this opinion at Justia US Supreme Court.) He said there is no denying that voting discrimination still exists. His answer was that current conditions don’t justify the continued use of preclearance.
That’s manifestly not true.
We can see that in the multiple laws passed last year by various states intending to reinstate voting discrimination.
The Court’s decision turns, in part, on whether covered jurisdictions (places the VRA calls out for preclearance) still have discrimination. The claim is that in Shelby County:
[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.
[From Robert’s opinion]
But that doesn’t mean election law there is not discriminatory. We know, for example, in Alabama there is obvious gerrymandering that packs Black voters into one district (out of seven), despite the Black population of Alabama consisting of around 27%. The registration and voting rates for Blacks in that district don’t reflect parity in election law. Neither does the level of office holders. (See Supreme Court halts redraw of Alabama's congressional map from Yahoo News.)
Roberts notes that preclearance creates an imbalance in the way the federal government treats the states.
Not only do States retain sovereignty under the Constitution, there is also a “fundamental principle of equal sovereignty” among the States.
While the equality of the states is written into the Constitution, it allows for amendments on just about anything except for equal representation for the states in the Senate. The Court originally allowed the constitutionality of the Voting Rights Act on the premise that (as Roberts says quoting an older decision), “exceptional conditions can justify legislative measures not otherwise appropriate”. But as Justice Ginsburg notes, the proper domain for the equal sovereignty principle is the admission of new States, not a general application to all laws. “Federal statutes that treat States disparately are hardly novelties,” she writes.
Roberts also writes that the federal government does not “have a general right to review and veto state enactments before they go into effect.” This is a misreading of the situation. The procedure is for the states to go to the federal government with a proposed law and get a ruling on it. What would happen if they passed the law anyway and tried to put it into effect? The DOJ would (in a correct world) sue the state to stop it, and it would go up for judicial review. The court would then refer to the Constitution and make a ruling (in a correct world). It would use the same criteria as the Attorney General—that is, they would compare the law with the Constitution (particularly the Thirteenth, Fourteenth, and Fifteenth Amendments) and rule on its constitutionality.
In its own way, getting a ruling before the legislature finalizes the law is a service to the state, because that state can know before passing the law whether or not it will pass constitutional muster.
Roberts also quotes a number of earlier rulings that the states have the power to regulate elections. He acknowledges that the Constitution gives Congress the right to establish the time and manner for electing representatives to Congress. Considering the supremacy of federal law, that allows Congress to determine the “manner” of elections for Congress. In theory, that’s everything.
But I think it goes beyond that. I think the Constitution itself sets certain standards for elections, in particular a fair right to vote regardless of race, color, or previous condition of servitude. We do not need a Voting Rights Act to strike down laws that deliberately create real inequality between groups. (You can look for yourself what the Constitution says at the National Archives.)
I don’t think the fight here is between Congress and the states. I don’t think this is an issue of federalism. It’s a constitutional issue. It’s a fight between the states and the Constitution of the United States. The Constitution is the agreement they signed up for when they joined the union. We are just enforcing the contract.
According to the opinion:
Respondents do not deny that there have been improvements on the ground, but argue that much of this can be attributed to the deterrent effect of §5 [Section 5], which dissuades covered jurisdictions from engaging in discrimination that they would resume should §5 be struck down. Under this theory, however, §5 would be effectively immune from scrutiny; no matter how “clean” the record of covered jurisdictions, the argument could always be made that it was deterrence that accounted for the good behavior.
In theory, the DOJ could just sue these jurisdictions if they started backsliding on the improvements. At what point should they do that? And doesn’t this just recreate the same problems that led to the VRA in the first place, where “the States came up with new ways to discriminate as soon as existing ones were struck down”?
In the end, the Court found that the coverage formula in section 4(b) may have been sufficient in 1965, but not today.
The coverage formula met that test in 1965, but no longer does so. Coverage today is based on decades-old data and eradicated practices. …In 1965, the States could be divided into two groups: those with a recent history of voting tests and low voter registration and turnout, and those without those characteristics. Congress based its coverage formula on that distinction. Today the Nation is no longer divided along those lines, yet the Voting Rights Act continues to treat it as if it were.
The government argued against this that the criteria in the act were intended to be descriptive and to select the areas where the most egregious discrimination occurred. The Court replied:
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.
However, we know the current conditions. These ten states made serious attempts in 2021 to restrict voting rights:
It’s pretty clear what’s common to most of those states, something you can easily see by asking which state contains Selby County. That’s the current condition. Some jurisdictions try harder to discriminate against minorities than others do.
In the end, Roberts chastises Congress for not updating the formula used in 4(b) and claims this decision “in no way affects the permanent, nationwide ban on racial discrimination in voting”. Congress should fix the Voting Rights Act to make it reflect today’s conditions, but that would require the active participation of the racists Republican Party.
Writing in dissent, Justice Ruth Bader Ginsburg wrote:
In the Court’s view, the very success of §5 of the Voting Rights Act demands its dormancy. Congress was of another mind. Recognizing that large progress has been made, Congress determined, based on a voluminous record, that the scourge of discrimination was not yet extirpated. The question this case presents is who decides whether, as currently operative, §5 remains justifiable. This Court, or a Congress charged with the obligation to enforce the post-Civil War Amendments “by appropriate legislation.” With overwhelming support in both Houses, Congress concluded that, for two prime reasons, §5 should continue in force, unabated. First, continuance would facilitate completion of the impressive gains thus far made; and second, continuance would guard against backsliding. Those assessments were well within Congress’ province to make and should elicit this Court’s unstinting approbation.
Ginsburg notes that even though the VRA has caused dramatic changes in minority voting rights, it has not “eliminated all vestiges of discrimination against” minority voting.
She points out section 4(b) of the Voting Rights Act is the part that has been the most effective at creating change. She noted that prior to the VRA, most attempts to battle discrimination were unsuccessful because “this vile infection resembled battling the Hydra. Whenever one form of voting discrimination was identified and prohibited, others sprang up in its place.”
That’s what we are seeing. After Selby and with the excuse that Donald Trump was treated so very, very unfairly, many states attempted to enact further restrictions on voting, which most people reasonably see targeted minorities.
Ginsburg also points out that many jurisdictions switched from methods that denied registration or voting for minorities to second-generation barriers, such as racial gerrymandering, “the redrawing of legislative districts in an effort to segregate the races for purposes of voting.”
In fact, one of the most blatant of these second-generation methods is gerrymandering on the basis of political party. Because the Democratic Party has the largest proportion of people of color, gerrymandering to keep Democrats out of office is a proxy for keeping members of minority communities out of office. Likewise, party-based gerrymandering is misogynistic, because the percentage of women in the Democratic Party is higher than for the Republican Party.
Yet, the courts continue to uphold gerrymandering for one party to dominate the other as acceptable.
Ginsburg writes that Congress spent considerable time in 2005 and 2006 studying the act and considering its value and effects. Then it passed the VRA reauthorization by overwhelming majorities (390 to 33 in the House and 98 to 0 in the Senate). President George Bush signed this law in July 2006. The effect of the Shelby decision is to undo the democratic decision of Congress and the President.
The conclusion of Congress, as quoted by Ginsburg, was that “intentional racial discrimination in voting remains so serious and widespread in covered jurisdictions that section 5 preclearance is still needed.” Congress took note that while registration and voting by minorities increased, opponents turned to “second-generation barriers”, such as “voting dilution”.
Ginsburg says there are three reasons to believe Congress has a rational basis for passing this law. (1) Congress did the legislative work necessary to justify the original legislation. (2) Congress built in time limits and required periodic reviews of whether the justification still held. (3) The Court should expect the record of violations to be less now than when the legislation was originally passed.
If the record of violations had to be like those originally experienced, it would create a Catch-22, where if the statute was working, opponents could argue it was no longer necessary. If it wasn’t working, they could argue that the statute was ineffective.
Ginsburg further notes that the DOJ can’t just fall back on section 2, because that’s not equivalent. "Congress also received evidence that litigation under §2 of the VRA was an inadequate substitute for preclearance in the covered jurisdictions. Litigation occurs only after the fact, when the illegal voting scheme has already been put in place and individuals have been elected pursuant to it, thereby gaining the advantages of incumbency.”
She also discusses why Congress did not change the criteria for coverage. She cites copious evidence of continued attempts to suppress minority votes in covered jurisdictions. By leaving the formulas alone, Congress designated the same areas for preclearance. Since there was plenty of evidence the problem still exists in these jurisdictions, it makes sense to apply the law to the same set of jurisdictions.
Because Congress did not alter the coverage formula, the same jurisdictions previously subject to preclearance continue to be covered by this remedy. The evidence just described, of preclearance’s continuing efficacy in blocking constitutional violations in the covered jurisdictions, itself grounded Congress’ [sic] conclusion that the remedy should be retained for those jurisdictions.
In addition, she points out that the areas covered have “a unique history of problems with racial discrimination in voting.”
Ginsburg points to the Katz study (1982 to 2004), which compared private lawsuits in covered vs. non-covered jurisdictions. The Katz study contradicts the Court’s assertion:
If differences in the risk of voting discrimination between covered and noncovered jurisdictions had disappeared, one would expect that the rate of successful §2 lawsuits would be roughly the same in both areas. The study’s findings, however, indicated that racial discrimination in voting remains “concentrated in the jurisdictions singled out for preclearance.”
In the end, Ginsburg says that Court struck section 4(b)’s coverage because it thinks the provision is not based on “current conditions”. This ignores what Congress found.
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.
[I’d be remiss if I didn’t add that famous RBG quote.]
In essence, Roberts and the majority of Justices seem to object to the way jurisdictions are selected for preclearance. But the reality is that this doesn’t actually matter. All those jurisdictions could “bail out” by simply not proposing discriminatory election laws. After ten years, none of them would qualify for preclearance.
The VRA permits a jurisdiction to bail out by showing that it has complied with the Act for ten years, and has engaged in efforts to eliminate intimidation and harassment of voters.
[Dissenting opinion authored by Ginsburg]
The courts can also order a district to seek preclearance.
So, while Roberts makes the case that the criteria for selecting jurisdictions is unfair because it hasn’t changed, this turns out to be an excuse. The tell is that the districts can bail out by just not trying to discriminate on a racial basis for ten years, but they don’t actually do that.
That’s because they are still practicing discrimination. As Ginsburg notes:
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.
The reason these jurisdictions wanted the Court to let them off the hook wasn’t because preclearance isn’t necessary, it’s because they wanted to continue to practice discrimination.
By the same token, the fact that any of them still qualify is evidence that we need the law to prevent discrimination. Their inclusions in the group requiring preclearance depends on their attempt to pass discriminatory laws. In reauthorizing the VRA, Congress found that:
[T]he success of bailout “illustrates that: (1) covered status is neither permanent nor over-broad; and (2) covered status has been and continues to be within the control of the jurisdiction such that those jurisdictions that have a genuinely clean record and want to terminate coverage have the ability to do so”).
[H. R. Rep. No. 109–478, at 25]
The whole challenge to preclearance in Shelby was intended to get the Court to allow these jurisdictions to continue discriminatory practices. They could then just pass laws they knew were discriminatory and thumb their noses at the DOJ and voting rights groups, telling them, “Catch me if you can!” Knowing, of course, that it’s harder to catch them with section 2 than with section 4(b).
The Department of Justice needs to go back and relitigate Shelby. The new voting restrictions passed in the many states give the DOJ sufficient justification to go back to the Court and demand it hears arguments to reinstate preclearance. The Court was precipitous, if not disingenuous, in finding that section 4(b) was unconstitutional. If the Court is not just looking for justifications for racism, then it will take a new and genuine look at preclearance.
Articles in This Series
Intro to this series: Resuscitating Democracy
Installment 1: The DOJ Is Becoming a Problem To Solve
Installment 2: Reforming the Department of Justice
Installment 3: Is Merrick Garland the Problem?
Installment 4: Department of Justice Performance Evaluation