U.S. Supreme Court

Chemerinsky: 'Stakes are enormous' in voting rights case

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Erwin Chemerinsky

The Voting Rights Act of 1965 is one of the most important civil rights statutes in American history. The constitutionality of a crucial provision of the act—Section 5—is in doubt, and the case that challenges it, Shelby County v. Holder, will be argued before the Supreme Court on Feb. 27.

Section 5 is important because of another provision, Section 2 of the Voting Rights Act, which prohibits voting practices or procedures that discriminate on the basis of race or against certain language minority groups. Under the 1982 amendments to Section 2, the act is violated by state or local laws that have the effect of disadvantaging minority voters. Lawsuits may be brought to challenge state or local actions that are alleged to violate Section 2.

But Congress, in adopting the Voting Rights Act, concluded that allowing lawsuits to challenge election procedures was not adequate to stop discrimination in voting. Congress was aware that Southern states especially often invented new ways of disenfranchising minority voters. Section 5 of the Voting Rights Act was adopted to prevent such actions. It applies to jurisdictions with a history of race discrimination in voting and requires that there be preapproval—termed “preclearance”—of any attempt to change “any voting qualification or prerequisite to voting, or standard, practice, or procedure with respect to voting” in any “covered jurisdiction.” The preapproval must come either from the U.S. Attorney General, through an administrative procedure in the Department of Justice, or from a three-judge federal court in the District of Columbia through a request for a declaratory judgment.

In South Carolina v. Katzenbach, decided in 1966, the Supreme Court upheld the constitutionality of Section 5 and spoke of the “blight of racial discrimination in voting.” The court found that Section 5 was a constitutional exercise of Congress’s power to enforce the Fifteenth Amendment’s prohibition of race discrimination in voting.

Congress repeatedly has extended Section 5, including for five years in 1970, for seven years in 1975, and for 25 years in 1982. After each reauthorization, the court again upheld the constitutionality of Section 5: Georgia v. United States, decided in 1973; City of Rome v. United States, 1980; and Lopez v. Monterey County, 1999.

In 2006, Congress voted overwhelmingly–98-0 in the Senate and 390-33 in the House—to extend Section 5 for another 25 years, and President George W. Bush signed this into law. Congress found that “without the continuation of the [Voting Rights Act’s] protections, racial and language minority citizens will be deprived of their opportunity to exercise their right to vote, or will have their votes diluted, undermining the significant gains made by minority voters in the last 40 years.”

Challenges were quickly brought to the constitutionality of Congress’s extending Section 5 and the Supreme Court considered this issue in Northwest Austin Municipal Utility District v. Holder. A local government in Texas argued that Congress exceeded its powers in reauthorizing Section 5.

Chief Justice John G. Roberts Jr., writing for the court in an 8-1 decision issued in 2009, expressed serious doubts about the constitutionality of the extension of Section 5, but interpreted the statute so as to avoid the constitutional issue. He noted the progress with regard to race discrimination in voting: In 1965, there were jurisdictions where there was a 50 percentage point gap in registration for voting, whereas “[t]oday, the registration gap between white and black voters is in single digits in the covered [s]tates; in some of those [s]tates, blacks now register and vote at higher rates than whites.”

Chief Justice Roberts said that Section 5 “imposes substantial federalism costs” in its intrusion into state election systems. He noted that “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. The preclearance requirement applies broadly, and in particular to every political subdivision in a covered state, no matter how small.

Perhaps most important, Chief Justice Roberts objected that Section 5 applies only in some states and that its application is based on a coverage formula created in 1972. “The evil that Section 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 [are] 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 [s]tates originally covered by Section 5 than it is nationwide.”

The court did not, however, declare the extension of Section 5 to be unconstitutional. Instead, the court said that its duty was to interpret the statute to avoid constitutional doubts. It construed the law to allow jurisdictions, including political subdivisions of a state, without a recent history of race discrimination in voting to “bail out” and avoid its requirements.

Many saw Chief Justice Roberts’ opinion in Northwest Austin as a strong message to Congress to revise Section 5 to make it more narrowly tailored so that it would apply only to jurisdictions where discrimination in voting remains and where preclearance is thus needed. Congress, though, has not acted and predictably other challenges were brought to the constitutionality of the extension of Section 5.

Shelby County, Alabama, which is a jurisdiction covered by Section 5, brought a challenge but lost in both the district court and the federal court of appeals. The U.S. Court of Appeals for the District of Columbia Circuit, in a 2-1 decision, concluded that Congress found “widespread and persistent racial discrimination in voting in covered jurisdictions” and that Section 5’s “disparate geographic coverage is sufficiently related to the problem it targets.”

Shelby County argues to the Supreme Court that “[t]he widespread and ingenious voting discrimination that once made Section 5 preclearance an appropriate enforcement remedy has ended” and that Congress did not adequately document current race discrimination in voting to justify the extension of the law. It echoes Chief Justice Roberts’ concern in Northwest Austin that the different treatment of states is not justified and that the formula used to determine where the law applies is not rational.

By contrast, the United States argues that Congress documented continuing, pervasive race discrimination in voting. It contends that Congress was within its authority to continue the coverage of Section 5 and that Congress had ample evidence that “discrimination remains substantially more prevalent in covered jurisdictions.”

The stakes are enormous. Section 5 serves as a deterrent and a preventative to state and local governments with a history of race discrimination in voting from adopting new practices that disadvantage minority voters. Many restrictions might exist that otherwise would be stopped because of the denial of preclearance. Moreover, the Voting Rights Act, and Section 5, are important symbols of the fight for civil rights and voting equality. If the court declares Section 5 unconstitutional, it will be the first major civil rights law declared unconstitutional since the late 19th century.

In a term with many potential blockbuster decisions, Shelby County v. Holder is one of the most important cases on the Supreme Court’s docket this year.

Erwin Chemerinsky, Dean and Distinguished Professor of Law at the University of California, Irvine School of Law, is one of the nation’s top experts in constitutional law, federal practice, civil rights and civil liberties, and appellate litigation. He is the author of seven books, the latest being The Conservative Assault on the Constitution (Simon & Schuster, 2010). His casebook, Constitutional Law, is one of the most widely read law textbooks in the country. Chemerinsky has also written nearly 200 law review articles in journals such as the Harvard Law Review, Michigan Law Review, Northwestern Law Review, University of Pennsylvania Law Review, Stanford Law Review and Yale Law Journal. He frequently argues appellate cases, including matters before the U.S. Supreme Court and the U.S. Court of Appeal, and regularly serves as a commentator on legal issues for national and local media. He holds a J.D. from Harvard Law School and a B.S. from Northwestern University.

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