It has been widely predicted that the US Supreme Court will grant certiorari in Shelby County, Alabama’s challenge to the constitutionality of Section 5 of the VRA. The case is set for conference tomorrow and we could learn as early as Monday whether the Court will take up this challenge. I do not believe the Court will, or should, hear Shelby County’s challenge.
The Justice Department has provided a strong brief to the high Court defending Section 5 and urging the Court not to take up this case. Civil rights groups have filed similar briefs, including a brief I co-authored in one of the two pending cases. Today, I give my top 6 reasons why the Court should not hear the constitutional challenge at this time.
1. Just three years ago, in NAMUDNO v. Holder, the US Supreme Court declined to decide an identical challenge to the constitutionality of Section 5. While the Court in NAMUDNO made clear that it viewed Section 5 as raising serious constitutional concerns, it avoided a decision on the constitutionality of the Act by reinterpreting the bailout provisions and expanding opportunities for state and local governmental units to bail out and deferring to scheduled Congressional review of Section 5. With these new bailout opportunities and scheduled Congressional review, the Court left the Section 5 regime in place for the post-2010 redistricting cycle. The Court’s expansion of bailout opportunities has worked. Jurisdictions from Texas, Alabama, North Carolina, Georgia, Virginia and California have now bailed out. Seehttp://www.justice.gov/crt/about/vot/misc/sec_4.php. Currently, the State of New Hampshire, as well as a half dozen California local governments and several Virginia jurisdictions, are on the verge of bailing out too. The number of jurisdictions that have successfully bailed out has grown dramatically since NAMUDNO: there were 86 governmental units that bailed out from 1982 to the time of the NAMUDNO bailout in 2009. Today, there are over 200. In other words, more jurisdictions have bailed out in the three years since NAMUDNO than the total number of jurisdictions that had bailed out in the 27 years prior to NAMUDNO! Not a single government that has sought bailout has been turned down.
2. Thousands of state and local governments have drawn redistricting plans pursuant to Section 5’s legal requirements, and did so because the Supreme Court decidedly left Section 5 in place in 2009. To declare Section 5 unconstitutional at this juncture would throw most of those plans into legal uncertainty and turmoil. Why would the Court take up this challenge now and declare Section 5 unconstitutional, when such a decision would force thousands of state and local governments into litigation over the continuing legality of their plans? The Court is surely aware that such a decision would wreak widespread havoc and presumably would not want to produce this ensuing chaos. 3. Neither of the two challenges to Section 5 pending before the Court involve cases where a local government has sought and been denied preclearance of a voting change. They are purely facial challenges to the constitutionality of the Act. It makes far more sense for the Court, in deciding a case involving the constitutionality of the most successful piece of civil rights legislation in our nation’s history, to decide such a question in the context of a state or local government having been denied preclearance. In such a case, the Court could examine Section 5’s specific application to a particular voting change in a covered jurisdiction. Moreover, such a case would come to the Court on direct appeal from a decision of a three-judge court in the District of Columbia, and the Court would have the issue before it. Because I remain firmly of the view that Section 5 of the VRA is still sorely needed to protect the rights of voters in jurisdictions with histories of discrimination, and that bailout provides an effective opportunity for state and local governments that have ended discriminatory practices to opt out of Section 5, I do not believe that the Court should necessarily note probable jurisdiction in such a case, if one comes before the Court. I am arguing simply that it makes far more sense, in deciding whether Section 5 is constitutional, to examine the Act’s preclearance requirements when looking at how a specific proposed voting change will impact racial and language minorities, rather than deciding that question in the abstract. Deciding whether to grant certiorari is largely discretionary, and a denial of certiorari means very little in terms of the Court getting another bite at the apple down the road. A direct appeal from the DC Court in a preclearance action, on the other hand, involves mandatory jurisdiction, so the Court will have opportunities to take up a Section 5 challenge later in future cases (and in an actual case involving a voting change). 4. The Shelby County case was instigated not by the County itself. The County was coaxed into bringing the challenge by one person (Ed Blum), under the guise of a nonprofit, who had instigated the NAMUDNO constitutional challenge a few years earlier. See http://www.huffingtonpost.com/2012/06/04/insight-from-alabama-an-_n_1566893.html and http://theusconstitution.org/news/one-man-washington-nonprofit-helps-steer-shelby-county-voting-case. According to news reports, Blum was trolling DOJ’s website for someone to challenge the constitutionality of the Act. Blum approached Shelby County’s attorney about challenging the Act, promised free legal help from a big law firm in Washington DC, and the challenge was launched in the DC Court. There’s no evidence that Shelby County wanted to undertake a particular voting change but felt Section 5 preclearance would get in the way. In other words, prior to Blum recruiting Shelby County to bring this challenge, there doesn’t seem to have been much controversy in the County about the requirements to seek Section 5 preclearance. Indeed, the evidence in the record from the Shelby County case points to the continuing need for Section 5 in the County.
5. When a near unanimous, bipartisan Congress extended Section 5 in 2006, it made clear that it would re-examine Section 5 preclearance process in ten years. That’s just four years away. It’s true that the Court strongly hinted in its 2009 NAMUDNO decision that Congress should reexamine Section 5, but if Congress had changed the legal standards or scope of Section 5’s coverage in 2009 or 2010, as redistricting was getting underway, it would have thrown the whole process into legal chaos. Presumably when Congress reexamines Section 5 in just a few years, it will be able at that point to take into account all of the post-2010 Section 5 decisions, including the recent important preclearance rulings by the DC Court in the Florida early voting case, the South Carolina voter ID case, and the two Texas cases involving three statewide redistricting plans and a voter ID law. Congress will also have an opportunity to study the post-2010 cycle, both within the Section 5 covered jurisdictions and beyond. The Court should defer to Congress to assess Section 5, as it did when it avoided a decision on the constitutionality of Section 5 in NAMUDNO. Congress is in a far better position than the Court to assemble a complete record and decide what changes, if any, should be made to Section 5, the centerpiece of the Voting Rights Act that former President Ronald Reagan rightly called the crown jewel of civil rights. 6. The branch of government that should decide whether the conditions have changed since 1965 is Congress, not the Supreme Court. The Court can decide whether certain remedies are constitutional, but assessing the continuing need for a law that was enacted and extended several times by Congress belongs to Congress. Similarly, the issue in 2012 is not whether the extension of Section 5 for 25 years in 2006 was correct. The issue today is whether the Section 5 is still needed 6 years after Congress extended it, and there is ample evidence (cited by the courts below in these constitutional challenges) that it is still very much needed.