Facial Challenge to VRA to be Decided on Summary Judgment

Judge Bates of the Federal District Court for the District of Columbia today ruled that a facial challenge to the Voting Rights Act may be decided on the pleadings and ordered the government to respond to the plaintiff's motion for summary judgment.

The case, Shelby County v. Holder involves a facial challenge to Sections 4(b) and 5 (preclearance) of the VRA.  Soon after filing the complaint, Shelby County moved for summary judgment.  The government asked the court to deny the motion as premature or to order discovery.  Judge Bates declined and ordered the government instead to respond to Shelby County's motion.

In so ruling, Judges Bates concluded that the only relevant evidence in the case is the 2006 legislative record--the actual evidence of contemporary discrimination in voting that Congress considered when it reauthorized Section 5 preclearance for another 25 years.  Judge Bates:

[A]t oral argument, the Court asked if any counsel--who collectively have a very broad experience--could identify a case in which the Supreme Court decided the facial constitutionality of an act of Congress based on facts unique to the specific plaintiff bringing the lawsuit.  None could.  Yet that is the discovery the government and defendant-intervenors seek here. . . .  [T]he constitutionality of the VRA must rise or fall on the record that Congress created when it extended that act in 2006.

The government had argued that it needed discovery to determine whether to challenge the plaintiff's standing, whether the plaintiff might bail out of the Section 5 preclearance requirement, and whether the VRA was unconstitutional.  Judge Bates ruled that none of these reasons required discovery.

Shelby County is one of the facial challenges to VRA preclearance in the wake of the Supreme Court's 2009 ruling in Northwest Austin Municipal Utility District v. Holder.  In that case, the Court declined to reach the constitutional question (although it was quite skeptical of that current conditions could justify preclearance); instead it ruled that the District qualified for bailout under the VRA.

Judge Bates ordered the government to file its response to Shelby County's motion for summary judgment by November 15.

SDS