Last week, in a case closely watched around the country, the U.S. Court of Appeals for the District of Columbia Circuit ruled that a key section of the 1965 Voting Rights Act was constitutional.
But it also exposed the fault lines that will likely push the case to the Supreme Court, posing one of the gravest threats to a provision in the Act that has been used most recently to force court review of voter ID laws in Southern states.
In a 2-1 decision in the case of Shelby County v Holder, the justices upheld Section 5 of the Act, an embattled component of the landmark civil rights measure which requires all or part of 16 states — nine in the South — to get federal approval before making major changes to elections.
A product of civil rights movement pressure, Section 5 was instantly challenged in court by the state of South Carolina, with one of the key arguments being that they were being unfairly singled out. The Supreme Court responded in 1966 with an opinion upholding the idea targeting certain states and counties, with Chief Justice Earl Warren writing that “an insidious and pervasive evil … had been perpetuated in certain parts of our country.”
Sensing that targeting certain areas for court scrutiny of elections would invite a backlash, in 1965 Congress insisted that Section 5 should be reviewed every few years to see if it was still needed. In the last such review in 2006, the U.S. House voted 390-33, and the Senate 98-0, to extend the Act, citing evidence that significant barriers to voting still existed.
But that hasn’t stopped a steady series of legal challenges to the Act and Section 5, even though the Department of Justice had been steadily decreasing the number of times it blocked election changes on VRA grounds. A 2006 report by the U.S. Commission on Civil Rights found that DOJ had objected in only .1 percent of cases brought before them [pdf].
In 2009 in Northwest Austin Municipal Utility District No. 1 v. Holder, the Supreme Court ruled the Texas district should have greater capability to be exempted from the Act. In 2010, two more jurisdictions — Kings Mountain, North Carolina and Sandy Springs, Georgia — successfully got exemptions, or were “bailed out,” from the Act.
Each challenge has not only sought exemptions for their district, but has also raised the constitutionality of Section 5’s pre-clearance provisions, which the Supreme Court seems increasingly interested in engaging.
But last week, the D.C. appeals court’s ruling upheld Congress’ decision to renew the Act in 2006, saying the Constitution “entrust[s] Congress with ensuring that the right to vote – surely among the most important guarantees of political liberty in the Constitution – is not abridged on account of race.”
Key to Circuit Judge David Tatel’s opinion was looking at the 15,000-page record Congress accumulated in 2006 to show that “a pattern of racial discrimination in voting so serious and widespread that case-by-case litigation is inadequate.”
In his dissent, however, Judge Williams outlined the line of attack that may be used to ultimately strike down Section 5. As Williams wrote:
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 rates, as well as in black elected officials.
Acknowledging that “It goes without saying that racism persists,” Williams argued that the formula for deciding which states, counties and other jurisdictions are covered was “obsolete.” But the only way to update the formula would be through an act of Congress — something increasingly unlikely to be resolved in the current divided House and Senate.
As election law expert Rick Hasen notes:
Judge Williams has provided a way for the conservatives on the Supreme Court to end Section 5 without having to declare that it would necessarily be unconstitutional if Congress tweaked it. And of course in this Congress there would not be a revised section 5.
If, as expected, Shelby County v Holder is quickly appealed, it will be up for review by the Supreme Court in its next session starting October 2012, with a decision likely by June 2013. In the words of legal scholar Doug Chapin, “It is now a virtual certainty that the Court’s next term (beginning in October 2012) will see the most significant effort to date to end Section 5.”