Wednesday, September 21, 2011
Judge John D. Bates (D.D.C.) today ruled that Congress had authority to reauthorize Section 5 of the Voting Rights Act under Section 2 of the Fifteenth Amendment. Section 5, the preclearance provsiion, says that covered jurisdictions must demonstrate to the Attorney General or a federal court that a proposed change to voting practices or procedures has neither the purpose nor effect of denying or abridging the right to vote on account of race.
The ruling came in Shelby County v. Holder, a facial challenge to the 2006 reauthorization of Section 5 and the related Section 4(b) by Shelby County, Alabama. Shelby County is a covered district under Section 4(b) and brought this suit seeking a declaratory judgment that Sections 5 and 4(b) were facially unconstitutional. We previously covered the case here.
Judge Bates denied Shelby County's motion for summary judgment and instead granted summary judgment to the government. The ruling means that the preclearance provision of the VRA stays on the books unless and until Shelby County successfully appeals, or unless and until another plaintiff brings an ultimately successful case--one in which the Supreme Court itself strikes down the provision.
Section 5, the preclearance provision, is a familiar target. It came to the Supreme Court in its 2008 Term in Northwest Austin Municipal Utility District v. Holder, but the Court dodged the constitutional question by ruling that the Utility District plaintiff qualified for bailout from the preclearance requirement under the language of the VRA. (The VRA allows covered jurisdictions to bail out of the preclearance provision if they meet certain requirements. Although the Court dodged the constitutional question, it suggested that the preclearance provision may be vulnerable.) But Shelby County argued that it wasn't eligible for bailout, and it therefore helped ensure that the courts couldn't dodge the constitutional question. Shelby County brought the case as a facial challenge, without identifying any particular application of Section 5 as exceeding congressional authority.
Judge Bates's opinion is (appropriately, necessarily) lengthy--151 pages in all. As we might expect, it summarizes in some detail the 15,000 pages of legislative record supporting the 2006 reauthorization. But it also spends considerable space describing the history of the VRA, the evolution of the Court's approach to it, and, perhaps most importantly, explaining these two principles:
1. The apparently less deferential standard in City of Boerne v. Flores was simply a "refined version of the same method of analysis" in the apparently more deferential standard in Katzenbach v. Morgan. These are not two separate standards, as the parties argued. The Court in Boerne held that legislation enacted under Section 5 of the Fourteenth Amendment must be "proportional and congruent" to the constitutional violation; Katzenbach held that legislation must be just rationally related. Judge Bates Boerne was just an extension of Katzenbach.
2. The same standard--the Boerne-as-refined-Katzenbach standard--applies both to congressional authority under Section 5 of the Fourteenth Amendment and Section 2 of the Fifteenth Amendment.
Judge Bates ruled that the preclearance requirement for covered jurisdictions was proportional and congruent to racial discrimination in voting. He first reviewed the evidence that Congress compiled in 2006--evidence of racial disparaties in voter registration, the number of minority elected officials, and the nature and number of Section 5 objections. (These were the same types of evidence that the Court relied upon in City of Rome.) But he also looked at evidence of more information requests, Section 5 preclearance suits, Section 5 enforcement actions, Section 2 litigation, the dispatch of federal election observers, racially polarized voting, and Section 5's deterrent effect. He concluded that the record of racial discrimination in voting that Congress relied upon in 2006 was at least as strong as the record that the Court held sufficient for reauthorization in 1975 in City of Rome and "far exceeds" the record that the Court held sufficient to uphold the Family and Medical Leave Act and Title II of the Americans with Disabilities Act in Hibbs and Lane, respectively.
Judge Bates next concluded that Section 5 was limited by geography and time--the two factors that the Court in Boerne highlighted in showcasing Section 5 as "an examplary congruent and proportional remedy." Op. at 133.
Finally, Judge Bates concluded that Section 4(b) didn't render preclearance unconstitutional and didn't violate the principle of equal sovereignty. Section 4(b) is the coverage formula for Section 5; it looks to voting practices, registration, and presidential election data from 1964, 1968, and 1974 to determine if a jurisdiction is covered. Shelby County argued that this trigger, also reauthorized in 2006, looked to outdated information to determine preclearance coverage. Judge Bates disagreed. He wrote that Section 4(b) (including its 1964, 1968, and 1974 data) operated as a proxy for identifying jurisdictions that had established histories of vote discrimination, and not because something special happened during those years. As such, the 2006 reauthorization could just as well look to data from those years in defining covered jurisdictions.
Judge Bates's ruling--and the VRA's preclearance provision--may be most vulnerable on this point. The Court said as much in Northwest Austin when it suggested that much has changed in voting patterns and practices in covered jurisdictions and particularly called out the trigger as "based on data that is now more than 35 years old."