Amendment XV
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.
It's one of the neat things about the Reconstruction Amendments that's sometimes overlooked -- not only do the 13th through 15th Amendments outlaw slavery and involuntary servitude, guarantee the privileges or immunities of all citizens of the United States as well as their right to due process and equal protection -- but the Amendments also expressly authorize Congress to enact further legislation enforcing these provisions.
Among this legislation is the Voting Rights Act of 1965, which finally outlawed various discriminatory voting practices that had been responsible for the widespread disenfranchisement of African Americans in the United States. Moreover, the Act in its 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. The idea was, basically, "we're not going to let you have one bad law struck down only to see you try again the next day with some new scheme to screw minority voters -- so before you change anything, see us." That list of covered jurisdictions is here, 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).
To make a change while under Section 5's jurisdiction, a covered state, county or local government entity must prove to DOJ that the voting change in question (1) does not have a racially discriminatory purpose; and (2) will not make minority voters worse off than they were prior to the change. As you can imagine, it can be a burden.
Section 5 was supposed to be a temporary procedure -- five years -- but it has been re-extended a number of times, most recently in 2006 for another 25 year period.
Still, many conservatives have believed that the rigors of Section 5 preclearance exceeded Congress' 15th Amendment authorization, given how much time has passed since the days of Bull Connor, and they thought they had their ideal plaintiff in Northwest Austin Municipal Utility District Number One ("NAMUDNO"), created in 1987 to provide waste collection and other public works services to about 3,500 residents. Before 2004, elections for its board were held in private homes or garages; they wanted to move the elections to public places like elementary schools. Because they're in Texas, Section 5 applied, even though there was no evidence that NAMUDNO itself had ever discriminated on the basis of race.
And many liberals feared, especially after oral argument (PDF), that this Court's 5-4 conservative majority would use the opportunity to gut Section 5, especially given its disparate treatment of Southern jurisdictions, with the Chief Justice asking the NAACP's counsel "So is it your -- is it your position that today southerners are more likely to discriminate than northerners?" and Justice Scalia noting, "Wasn't Virginia the first State in the Union to elect a black governor?"
Today, however, the bullet was dodged, albeit on somewhat technical grounds. In an 8-1 opinion authored by the Chief Justice, with only Justice Thomas dissenting, the Court effectively rewrote parts of the Voting Rights Act to allow NAMUDNO to apply in federal court for a permanent "bailout" from the preclearance provisions based on a documented record of behaving itself in this realm, a remedy previously allowed only for states and counties as a whole, and chose not to reach the larger constitutional question.
From the opinion of the Court, edited for clarity:
Section 5 goes beyond the prohibition of the Fifteenth Amendment by suspending all changes to state election law -- however innocuous -- until they have been precleared by federal authorities in Washington, D. C. The preclearance requirement applies broadly, and in particular to every political subdivision in a covered State, no matter how small.
Some of the conditions that we relied upon in upholding this statutory scheme ... have unquestionably improved. Things have changed in the South. Voter turnout and registration rates now approach parity. Blatantly discriminatory evasions of federal decrees are rare. And minority candidates hold office at unprecedented levels.
These improvements are no doubt due in significant part to the Voting Rights Act itself, and stand as a monument to its success. Past success alone, however, is not adequate justification to retain the preclearance requirements. [] It may be that these improvements are insufficient and that conditions continue to warrant preclearance under the Act. But the Act imposes current burdens and must be justified by current needs.
The Act also differentiates between the States, despite our historic tradition that all the States enjoy "equal sovereignty." [] Distinctions can be justified in some cases. "The doctrine of the equality of States ... does not bar ... remedies for local evils which have subsequently appeared." But a departure from the fundamental principle of equal sovereignty requires a showing that a statute’s disparate geographic coverage is sufficiently related to the problem that it targets.
... The evil that §5 is meant to address may no longer be concentrated in the jurisdictions singled out for preclearance. 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. For example, the racial gap in voter registration and turnout is lower in the States originally covered by §5 than it is nationwide. Congress heard warnings from supporters of extending §5 that the evidence in the record did not address "systematic differences between the covered and the non-covered areas of the United States[,] ... and, in fact, the evidence that is in the record suggests that there is more similarity than difference." ...
In assessing those questions, we are keenly mindful of our institutional role. We fully appreciate that judging the constitutionality of an Act of Congress is "the gravest and most delicate duty that this Court is called on to perform." "The Congress is a coequal branch of government whose Members take the same oath we do to uphold the Constitution of the United States." he Fifteenth Amendment empowers "Congress," not the Court, to determine in the first instance what legislation is needed to enforce it. Congress amassed a sizable record in support of its decision to extend the preclearance requirements, a record the District Court determined "document[ed] contemporary racial discrimination in covered states." The District Court also found that the record "demonstrat[ed] that section 5 prevents discriminatory voting changes" by "quietly but effectively deterring discriminatory changes."
We will not shrink from our duty "as the bulwar[k] of a limited constitution against legislative encroachments," The Federalist No. 78, p. 526 (J. Cooke ed. 1961) (A. Hamilton), but "[i]t is a well-established principle governing the prudent exercise of this Court’s jurisdiction that normally the Court will not decide a constitutional question if there is some other ground upon which to dispose of the case," Escambia County v. McMillan, 466 U. S. 48, 51 (1984) (per curiam). Here, the district also raises a statutory claim that it is eligible to bail out under §§4 and 5. ...
And, really, that's what you need to know. From there, the Court's opinion goes on to expand the eligibility for bailout down to the local level, punting to another day (i.e., when NAMUDNO or some similarly-situated locality fails to receive a bailout) the question of whether Section 5 is constitutional at all.
But that's a question Justice Thomas was prepared to answer right now. From his dissent/concurrence:
Section 5 "was a response to a common practice in some jurisdictions of staying one step ahead of the federal courts by passing new discriminatory voting laws as soon as the old ones had been struck down. That practice had been possible because each new law remained in effect until the Justice Department or private plaintiffs were able to sustain the burden of proving that the new law, too, was discriminatory."
The rebellion against the enfranchisement of blacks in the wake of ratification of the Fifteenth Amendment illustrated the need for increased federal intervention to protect the right to vote. Almost immediately following Reconstruction, blacks attempting to vote were met with coordinated intimidation and violence. See, e.g., L. McDonald, A Voting Rights Odyssey: Black Enfranchisement in Georgia 34 (2003) ("By 1872, the legislative and executive branches of state government ... were once again firmly in the control of white Democrats, who resorted to a variety of tactics, including fraud, intimidation, and violence, to take away the vote from blacks, despite ratification of the Fifteenth Amendment in 1870 ...") A soon-to-be victorious mayoral candidate in Wilmington, North Carolina, for example, urged white voters in an 1898 election-eve speech: "Go to the polls tomorrow and if you find the negro out voting, tell him to leave the polls, and if he refuses kill him; shoot him down in his tracks."
This campaign of violence eventually was supplemented, and in part replaced, by more subtle methods engineered to deny blacks the right to vote. Literacy tests were particularly effective: "as of 1890 in ... States [with literacy tests], more than two-thirds of the adult Negroes were illiterate while less than one-quarter of the adult whites were unable to read or write," because "[p]rior to the Civil War, most of the slave States made it a crime to teach Negroes how to read or write." Compounding the tests’ discriminatory impact on blacks, alternative voter qualification laws such as "grandfather clauses, property qualifications, [and] ‘good character’ tests" were enacted to protect those whites who were unable to pass the literacy tests. see also Lopez, supra, at 297 (Thomas, J., dissenting) ("Literacy tests were unfairly administered; whites were given easy questions, and blacks were given more difficult questions, such as the number of bubbles in a soap bar, the news contained in a copy of the Peking Daily, the meaning of obscure passages in state constitutions, and the definition of terms such as habeas corpus."
The extensive pattern of discrimination that led the Court to previously uphold §5 as enforcing the Fifteenth Amendment no longer exists. Covered jurisdictions are not now engaged in a systematic campaign to deny black citizens access to the ballot through intimidation and violence. And the days of "grandfather clauses, property qualifications, ‘good character’ tests, and the requirement that registrants ‘understand’ or ‘interpret’ certain matter," are gone. There is thus currently no concerted effort in these jurisdictions to engage in the "unremitting and ingenious defiance of the Constitution" that served as the constitutional basis for upholding the "uncommon exercise of congressional power" embodied in §5.
The lack of sufficient evidence that the covered jurisdictions currently engage in the type of discrimination that underlay the enactment of §5 undermines any basis for retaining it. Punishment for long past sins is not a legitimate basis for imposing a forward-looking preventative measure that has already served its purpose. Those supporting §5’s reenactment argue that without it these jurisdictions would return to the racially discriminatory practices of 30 and 40 years ago. But there is no evidence that public officials stand ready, if given the chance, to again engage in concerted acts of violence, terror, and subterfuge in order to keep minorities from voting. Without such evidence, the charge can only be premised on outdated assumptions about racial attitudes in the covered jurisdictions. Admitting that a prophylactic law as broad as §5 is no longer constitutionally justified based on current evidence of discrimination is not a sign of defeat. It is an acknowledgment of victory.
The current statistical evidence confirms that the emergency that prompted the enactment of §5 has long since passed. By 2006, the voter registration rates for blacks in Alabama, Louisiana, and Mississippi had jumped to 71.8%, 66.9%, and 72.2%, respectively. Therefore, in contrast to the Katzenbach Court’s finding that the "registration of voting-age whites ran roughly 50 percentage points or more ahead of Negro registration" in these States in 1964, see 383 U. S., at 313, since that time this disparity has nearly vanished. In 2006, the disparity was only 3 percentage points in Alabama, 8 percentage points in Louisiana, and in Mississippi, black voter registration actually exceeded white voter registration by 1.5 percentage points. In addition, blacks in these three covered States also have higher registration numbers than the registration rate for whites in noncovered states. ...
In 1870, the Fifteenth Amendment was ratified in order to guarantee that no citizen would be denied the right to vote based on race, color, or previous condition of servitude. Congress passed §5 of the VRA in 1965 because that promise had remained unfulfilled for far too long. But now—more than 40 years later––the violence, intimidation, and subterfuge that led Congress to pass §5 and this Court to uphold it no longer remains. An acknowledgment of §5’s unconstitutionality represents a fulfillment of the Fifteenth Amendment’s promise of full enfranchisement and honors the success achieved by the VRA.
Prof. Rick Hasen has more analysis, including his note that "the key political point is that Section 5 will remain in place during the next round of redistricting, and it will be redistricting supervised by the Obama Administration's DOJ." [As you know from previous disclaimers, I'm trying to avoid saying too many critical things of the Court as long as I have a matter pending before it, and we'll know more about that next Monday.]
