Why the Supreme Court May Rule Against the Voting Rights Act

Posted on Feb 25, 2013

Flickr/ massmatt

By Suevon Lee, ProPublica

(Page 2)

After a lower federal court ruled against Shelby County, and the U.S. Court of Appeals for the D.C. Circuit upheld the decision on appeal, Shelby County did just that.

In July 2012, it appealed to the Supreme Court, arguing that Congress, in 2006, lacked sufficient evidence showing that “covered jurisdictions have a latent desire to discriminate that does not exist elsewhere in the country” when it reauthorized the Voting Rights Act.

Lawyers argue that Section 5 should be struck down because it relies on an outdated formula that unfairly singles out certain states, creates a burdensome requirement to clear every proposed voting law change and that the federal government has demonstrated a “needlessly aggressive exercise of preclearance authority.”

Didn’t the Supreme Court come close to striking down Section 5 before?

Yes. In a 2009 case called Northwest Austin Municipal Utility District No. 1 in Texas v. Holder, or NAMUDNO for short, the Court didn’t address the constitutionality of Section 5 — but it did suggest how it might rule in the future.

“The evil that (Section 5) is meant to address may no longer be concentrated in the jurisdictions singled out for preclearance,” Chief Justice John Roberts wrote in the majority 8-1 opinion. “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.”

The 2009 decision also relaxed those “bailout” standards we’ve mentioned before.

Under this separate provision of the Voting Rights Act, states and localities can be “bailed out” from Section 5 coverage if they can show that in the last 10 years, they’ve maintained a clean record — in other words, that they’ve instituted no discriminatory voting practices or been issued any adverse judgments alleging voter discrimination.

But Blum, for one, says the bailout requirements are still very difficult to meet. “A city may draw an objection from the DOJ which makes the entire state ineligible to seek bailout for 10 years,” he said.

So exactly how easy is it to bail out from Section 5?

Since 1967, several dozen localities have successfully come out from under Section 5 coverage. In the three years since NAMUDNO alone, more jurisdictions have requested and received bailout than between the years 1984 and 2009 — largely because the Supreme Court relaxed a standard.

Thus, any change since 2009 “has been for the better — i.e., consistent with the presumed goal of the Court in Namudno to enable jurisdictions to bail out from coverage,” Gerry Hebert, an attorney who has handled a number of these bailout petitions, told ProPublica. “To the extent Section 5 is a burdensome intrusion and an infringement on states’ rights, bailout not only lessens that burden but it can eliminate it altogether.”

Some have accused the DOJ of deliberately relaxing its rate of bailout acceptance.

The state of New Hampshire, where 10 townships fall under the coverage formula, filed a bailout petition in November, becoming the first stand-alone state to do so. A decision is expected sometime next month.

How likely is it that the Supreme Court will strike down Section 5?

Many saw in the Court’s 2009 decision an underlying message to Congress to act to amend the Voting Rights Act. Of course, that didn’t happen.

Also, some wonder about a current coverage formula that doesn’t include states like Ohio and the whole of Florida, places which came under fire this year for scaling back on early voting.

“If you don’t have Ohio and Florida, it might suggest that the coverage formula is a little out of whack,” said Rick Hasen, professor of law and political science at UC Irvine School of Law. “The way the Supreme Court federalism cases stack up, and the way the conservative justices view these cases, I’m predicting the Court will strike it down.”

Gerken, the Yale Law professor, also speculates on why the Court’s four liberal justices joined the 8-1 opinion in 2009 that so clearly expressed doubts about the law’s constitutionality.

“Maybe they did it because they wanted Congress to do something, or maybe it was a deal to postpone the demise of the Voting Rights Act,” she said. “If it was a deal, it seems likely the deal will not last beyond that one case.”

What happens if the Supreme Court strikes down Section 5?

Some say it won’t matter all that much, because under a separate part of the Voting Rights Act known as Section 2, parties can always bring a lawsuit challenging a discriminatory voting law or practice.

But under that provision, the burden falls on the plaintiff, rather than on the state or municipality, to show that a proposed change is discriminatory. This means litigation comes at a cost — the smaller the change, the less likely litigation may be pursued.

In his 2007 paper, Persily noted that lawmakers recognized the need to update Section 5 coverage criteria to include “the newest generation of voting rights violators,” but that politics provided an impossible roadblock. When Congress last reauthorized the Voting Rights Act in 2006, it rejected multiple amendments to change and expand the law.

In the event the Supreme Court strikes down Section 5 next year, some question Congress’ ability to go back to the drawing board.

“Assuming they strike it down, they’ll obviously provide parameters that Congress could meet if it wanted to pass it again,” Gerken said. “Whether this Congress is remotely capable of doing that is another question.”

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