Today, the Supreme Court announced their 8-1 decision in the case Northwest Austin Municipal Utility District v. Eric Holder Jr, Attorney General et al.. The court held that the Northwest Austin Municipal Utility District Number One (NAMUDNO) was allowed to apply to bailout of the requirements under the Voting Rights Act of 1965 extension (2005). Clarence Thomas was the lone hold out. You can read the full (slip) opinion here. This case is somewhat confusing because all sides are claiming victory. As I will show, although short-term relief from proponents of the Voting Rights Act (VRA) is well-deserved, the long-term fate of section 5 of the VRA is more questionable. If you know the back ground feel free to skip to the analysis.
This story begins in 1870, when enough states ratified the Fifteenth amendment the constitution which reads:
Section 1. The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.
Section 2. The Congress shall have power to enforce this article by appropriate legislation.
As most students of history know, racism at the polls did not end in 1870. Societies that were not willing to abandon slavery, were certainly not prepared to allow non-whites electoral power. Instead of outright banning African-Americans from voting, many states (mostly in the South) adopted election rules that incorporated devices such as a poll tax or a literacy test as prerequisites for voting. Of course, they also provided exceptions for those able to vote prior to the enactment of those tests (aka poor whites and illiterate whites). For almost 100 years, these rules disenfranchised almost all African-Americans in the South.
In 1965, the Congress passed and President Lyndon Johnson signed one of the most important pieces of legislation in the history of the American civil rights, the Voting Rights Act of 1965. This act outlawed all forms of discrimination at the polls. It gave the federal government power to prosecute and punish individuals, states, or political sub-divisions which sought to prevent equal access to the ballot.
The most controversial parts of the Voting Rights Act, were those that only applied to “covered jurisdictions” which were those jurisdictions with a history of electoral discrimination. Those jurisdictions had a bear a specific burden because of their history. Section 5 of the VRA required that those covered jurisdiction had to clear any changes in their electoral rules with the Department of Justice or a special three-judge panel in DC to ensure that those changes wouldn’t make it harder for minorities to vote. This is called obtaining “pre-clearance.”
This section was initially meant to last five years, but then Congress extended it another five years in 1970, extended it again in 1982 and most recently in 2006. This renewal will expire in 2031. During those years, courts added more “covered jurisdictions” due to new evidence of discrimination. During that time, Congress amended the VRA to allow covered jurisdictions to terminate (bailout) their status as a “covered jurisdiction.” In order for a court to grant a bailout the jurisdiction
must show that for the previous 10 years it has not used any forbidden voting test, hasnot been subject to any valid objection under §5, and has not been found liable for other voting rights violations; it must also show that it has “engaged in constructive effortsto eliminate intimidation and harassment” of voters, and similar measures. §§1973b(a)(1)(A)–(F).
Seventeen counties and cities, all in Virginia, have received bailouts from the Department of Justice. According to seven bailed out jurisdictions, “the process was not costly, administratively burdensome, or difficult.”
Below is a map of all current covered jurisdictions and bailed out jurisdictions from the DOJ:
The Northwest Austin Municipal Utility District Number One is a “covered jurisdiction” because it has elections for its board, and is located in the state of Texas. In 2002, they wanted to move its election location from private homes to a public elementary school. In order to do this, they were required to get pre-clearance, they did so and were approved. However, backed by a conservative group, they decided to file for a bail-out and to challenge the constitutionality of section 5.
given the extensive legislative record documenting contemporary racial discrimination in voting in covered jurisdictions, Congress’s decision to extend section 5 for another twenty-five years was rational and therefore constitutional.
There is a chance that the conservative Justice Anthony Kennedy will find a way, even if a narrow way, to uphold Section V of the Voting Rights Act. But it seems highly likely, if not a foregone conclusion, that the four hard right conservatives on the Supreme Court — John Roberts, Antonin Scalia, Clarence Thomas and Samuel Alito — will all take the activist step (as [Norm] Ornstein puts it) of overturning the landmark civil rights bill
As the Supreme Court wraps up its term, the Justices seem likely to strike down a key part of the Voting Rights Act. According to sources in and outside of the Justice Department, a team of the department’s lawyers has been strategizing in private for weeks to plan a speedy response to a potential loss in court.
Slate’s Dahlia Lithwick lamented:
The real question for the court today is whether there are indeed five votes for saying that for purposes of Section 5, America is so right that Congress must be wrong. It looks like there may be. And that’s a long, long journey for the humble, minimalist Roberts Court.
To many people’s surprise, the Court deferred ruling on the Constitutional question and limited their ruling to the question of whether NAMUDNO ought to be allowed to apply for a bailout. However, they showed that the majority of the court were not fans of Section 5, and given another opportunity without action from Congress, they probably will strike section 5.
They ruled that despite the fact that NAMUDNO did not fit the exact definition of a jurisdiction (because it did not register voters), the Court had previously held that other political subdivisions could be held to the standards of the VRA and therefore they should be entitled to the relief of bailouts as well.
Despite deferring on the constitutional question they devoted a third of their opinion to the constitutional question and the author seemed ready to decide that section 5 of the VRA was not constitutional. They seemed to have four specific problems (in chronological order) with the legislation:
- Covered Jurisdictions may no longer need coverage due to civil rights progress
- Section 5 exceeds the authority granted to Congress by the 15th Amendment
- Section 5 treats the each state differently
- The trigger is set to 1972
The Court’s first problem with section 5 of the VRA is that they don’t seem convinced it’s necessary anymore. They site the vast improvements in the numbers of minorities registered to vote, in particular the fact that “voter registration and turnout have approached parity” (7) and the fact that in some of [the covered] States “blacks now register and vote at higher rates than whites”(6).
They allow that, “These improvements are no doubt due in significantpart to the Voting Rights Act itself, and stand as a monument to its success” but then say that “past success alone, however, is not adequate justification to retain the preclearance requirements.”
The second concern they mention is that section 5 goes beyond the authority granted to Congress in the Fifteenth Amendment, because it requires that covered jurisdictions receive approval for ALL changes to electoral programs. They reason that because of this deficiency, the section 5 needs especially strong justification pg. 7.
This is their weakest argument by far. The Fifteenth Amendment says that Congress has the power to ensure that no citizen’s right to vote is denied or abridged due to race or color. It leaves the method for doing that in the hands of Congress, and Congress determined that the VRA and pre-clearances were the best way to achieve that.
The Court’s third concern is that section 5 does not treat each state equally, as is normally done in our federal system. They state:
a departure from the fundamental principle of equal sovereignty requires a showing that a statute’s disparate geographic coverage is sufficiently related to the problem that it targets pg. 8.
They then go on to argue that the voter registration and turnout gaps are larger nationwide then they are in the covered states, and further that allowing this disparity creates some paradoxes in constitutional actions (considering racial impacts might be necessary in Georgia, but considered unconstitutional in a non-covered jurisdiction) (pg. 8).
While these are certainly legitimate issues, the Court would not uphold a law that required all states to submit to federal jurisdiction. This would certainly cause more troubles than the targeted nature of the current provisions of the VRA.
Their fourth problem with section 5 is that the current trigger for being covered by the VRA is data from 1972. While they acknowledge that the Congressional record shows that many of these covered states still have civil rights issues, they argue that:
The statute’s coverage formula is based on data that is now more than 35 years old, and there is considerable evidence that it fails to account for current political conditions (pg. 9).
While the 1972 trigger is clearly old, I disagree with the assertion that it fails to account for current conditions. An Amici brief by a group of former Republican office holders, recounts the significant record collected by Congress prior to the 2006 reauthorization, and it convincingly claims that this data showed little change from the records gathered in any of the previous records. As explained by a Judiciary Committee Report:
“[d]espite the substantial progress that has been made, the evidence before the Committee resembles the evidence before Congress in1965 and the evidence that was present again in 1970, 1975, 1982, and 1992.” H.R. REP. NO. 109-478 pg. 6
Changing the trigger from that established in 1972, would not necessarily change that much given the above information, but would cause a significant amount of work, and most likely a significant amount of controversy. It’s not as if the trigger was kept without doing any research, instead, Congress had a record of hundreds of pages which included proponents of the VRA, proponents of changes to the VRA , and opponents to reauthorization of the VRA.
Despite their qualms, the Court stated that the Congress had a strong authority to act in this area, and that they chose not to reach a conclusion on the Constitutional question, because they had narrower grounds which they could act on. Yet their reference to Congress seemed to clearly signal, they are hoping Congress will act to assuage at least some of their four concerns.
While I do not believe that the Court’s reasoning is entirely sound, it does seem clear that Congress needs to act sooner rather than later. If Congress acts to solve any of the “problems” above, they can probably prevent the Court’s current majority from joining in a future case. During oral arguments, Justice Kennedy (the permanent fifth vote) stressed his concerns about federalism and the fact that different states are treated differently. Therefore, focusing on this might be the key to ensure a Supreme Court coalition that supports the section 5 of the VRA.
A useful strategy to consider is Professor Rick Hasen’s suggestion of a proactive bailout system. Essentially, he suggests that instead of putting the onus of the bailout system on the jurisdiction, the onus ought to lie on a third party which would review whether jurisdictions qualify for bailouts. I might even suggest doing that review nation-wide. While this solution would be resource heavy, it would provide solid justification for covered jurisdictions and would protect against potential judicial criticism. You can read more of Professor Hasen’s suggestion here.