Monday, July 23, 2012
Petitioners Shelby County and John Nix filed two separate cert. petitions late last week seeking Supreme Court review of a D.C. Circuit decision upholding the preclearance provisions of the Voting Rights Act. Shelby County's petition is here; Nix's petition is here. More on the differences below.
The petitions put the preclearance provisions of the Voting Rights Act squarely before a Supreme Court that seems chomping at the bit to take them on--and to overturn them.
The move was expected. With the Supreme Court's statement three years ago in Northwest Austin Municipal Utility District v. Holder that the preclearance provisions "raise serious constitutional questions," the Court's reiteration more recently in Perry v. Perez, and the spate of challenges now percolating in the lower courts, Shelby County v. Holder was the first circuit ruling dealing squarely with the 2006 reauthorization of the VRA. A split three-judge panel upheld the provisions and ruled that another, related case (Nix's case) was moot. The ruling teed the challenge up for Supreme Court review.
At issue: Section 5 of the VRA, which requires covered jurisdictions to obtain "preclearance" from the Department of Justice or a three-judge panel of the United States District Court for the District of Columbia before making changes to their voting standards, practices, or requirements; and Section 4(b), which provides the formula for determining which jurisdictions are covered.
Recall that the D.C. Circuit in Shelby County upheld Section 5 and Section 4(b) of the VRA. But that court also ruled that Nix's case--challenging the new reauthorization standards that Congress put into place in the 2006 reauthorization--was moot, because the DOJ reversed course and cleared the voting change at issue.
The two cert. petitions cover two distinct issues. Shelby County's cert. petition argues that the D.C. Circuit erred in upholding Sections 5 and 4(b). In short, Shelby argues that the preclearance requirement in Section 5 exceeds congressional authority to enforce the provisions the Fourteenth and Fifteenth Amendments--that it's not "proportional and congruent" to the "evil" that it seeks to remedy--and that Congress neglected to change the coverage formula in Section 4(b) in response to changed conditions.
Nix's cert. petition argues that the substantive changes to the preclearance standard that Congress enacted in 2006 exceed congressional authority. Nix says that Congress, in reauthorizing Section 5 in 2006, changed the preclearance standard in response to two Supreme Court decisions that narrowed that standard, thus exceeding its authority. Nix claims that before 2006, preclearance could be denied only if the jurisdiction failed to prove that its voting change did not have the "purpose" or "effect" of causing "a retrogression" in minorities' "effective exercise of the electoral franchise," as determined by "all the relevant circumstances." (Citing and quoting Georgia v. Ashcroft and Reno v. Bossier Parish School Board.) But Nix argues that Congress changed this standard in the 2006 reauthorization by eliminating the "all relevant circumstances" flexibility and by requiring covered jurisdictions to "prove that even a change that does not make minorities worse off lacks the 'discriminatory purpose' of not making them better off." These changes, say Nix, exceed congressional authority.
Because the D.C. Circuit ruled Nix's case moot, Nix has the additional burden of arguing that his case isn't really moot. He does this by claiming that the DOJ cleared the jurisdiction only to avoid judicial review of his arguments.
With two strong statements from the Court about the questionable constitutionality of VRA preclearance, look for the Court to grant these petitions--and likely overturn these key provisions of the VRA.