Friday, May 18, 2012
A divided three-judge panel of the D.C. Circuit today affirmed a lower court decision and upheld key provisions in the Voting Rights Act. The majority in Shelby County v. Holder held that Section 5, the so-called pre-clearance provision, and Section 4(b), the section that designates covered jurisdictions under Section 5, fell within congressional authority under the Fifteenth Amendment and thus were constitutional. We covered the case in the lower court here and here; those posts contain more thorough background.
The ruling tees up the case for Supreme Court review. The high Court has strongly suggested that it was just waiting for a good case to take on the constitutionality of these key provisions of the VRA. It dodged the constitutional question three years ago in Northwest Austin Municipal Utility District v. Holder. This case gives it a second crack, with the constitutional question unavoidably front-and-center.
When the case goes to the Supreme Court--and it's all but certain a "when," not "if"--it'll turn on how the Court treats and scrutinizes congressional findings (as it did in the D.C. Circuit). In particular: Do congressional findings adequately support Sections 5 and 4(b)? If we want a preview of those arguments, we can simply look to the arguments over methodology and congressional conclusions in this case--most or all of which are thoroughly vetted in the 100-page opinions.
But there's another question to watch for: By what measure will the Court scrutinize congressional findings? In other words: How much leeway will the Court give to Congress, if congressional findings don't exactly line up with Section 5 and 4(b). This Court has suggested that it won't give much.
Congress had a thorough record when it reauthorized the VRA in 2006. The question is whether it was thorough and precise enough for this Court. Based on what we've seen from this Supreme Court, the answer is probably no; and we should brace ourselves for a sharply divided ruling that the VRA exceeds congressional authority.
In the D.C. Circuit, Judge Tatel started the majority opinion with a hat-tip to Northwest Austin and the Court's statement there that there were serious constitutional questions with the VRA--showing the court's full recognition of the importance of this case. The ruling then uses the framework in Northwest Austin to analyze the constitutionality of Section 5:
First, emphasizing that section 5 "authorizes federal intrusion into sensitive areas of state and local policymaking that imposes substantial federalism costs," the Court made clear that "[p]ast success alone . . . is not adequate justification to retain the preclearance requirements." . . . Second, the Act, through section 4(b)'s coverage formula, "differentiates between the States, despite our historic tradition that all the States enjoy equal sovereignty."
Op. at 14.
In a ruling that claimed deference to congressional judgments--but nevertheless included scores of pages of scrutiny of those judgments--the court held that Congress had satisfied both questions in reauthorizing the VRA in 2006. (Along the way,the court held that the Fourteenth Amendment's "proportional and congruent" test is also the appropriate one for the Fifteenth Amendment.)
Judge Williams dissented, writing that Section 4(b), the section setting criteria for designation as a covered jurisdiction, was too rough a cut to meet the demands of the Fifteenth Amendment. This illustration summarizes the point:
Why should voter ID laws from South Carolina and Texas be judged by different criteria (at a minimum, a different burden of persuasion, which is often critical in cases involving competing predictions of effect) from those governing Indiana? A glimpse at the charts shows that Indiana ranks "worse" than South Carolina and Texas in registration and voting areas, as well as in black elected officials . . . . As to federal observers, Indiana appears clearly "better"--it received none . . . . As to successful Section 2 suits South Carolina and Texas are "worse" than Indiana, but all three are below the top ten offenders, which include five uncovered states . . . . This distinction in evaluating the different states' policies is rational?
Dissent, at 32.