Today, in what is likely to be seen as one of the most consequential decisions of this term if not the entire Roberts Court, the Supreme Court ruled that the formula established by Congress in Section Four of the Voting Rights Act to determine which jurisdictions must have changes to their voting laws approved by either the Department of Justice or,barring that, a panel of three Federal District Court Judges, is unconstitutional largely because the formula is outdated:
WASHINGTON — The Supreme Court on Tuesday effectively struck down the heart of the Voting Rights Act of 1965 by a 5-to-4 vote, ruling that Congress had not provided adequate justification for subjecting nine states, mostly in the South, to federal oversight.
“In 1965, the states could be divided into two groups: those with a recent history of voting tests and low voter registration and turnout, and those without those characteristics,” Chief Justice John G. Roberts Jr. wrote for the majority. “Congress based its coverage formula on that distinction. Today the nation is no longer divided along those lines, yet the Voting Rights Act continues to treat it as if it were.”
Chief Justice Roberts said that Congress remained free to try to impose federal oversight on states where voting rights were at risk, but must do so based on contemporary data. When the law was last renewed, in 2006, Congress relied on data from decades before. The chances that the current Congress could reach agreement on where federal oversight is required are small, most analysts say.
Justices Antonin Scalia, Anthony M. Kennedy, Clarence Thomas and Samuel A. Alito Jr. joined the majority opinion. Justice Ruth Bader Ginsburg dissented, joined by Justices Stephen G. Breyer, Sonia Sotomayor and Elena Kagan.
The majority held that the coverage formula in Section 4 of the Voting Rights Act, originally passed in 1965 and most recently updated by Congress in 1975, was unconstitutional. The section determines which states must receive preclearance from the federal authorities.
The court did not strike down Section 5, which sets out the pre-clearance requirement itself. But without Section 4, which determines which states are covered, Section 5 is without significance — unless Congress chooses to pass a new bill for determining which states would be covered.
Lyle Denniston breaks it down:
Chief Justice John G. Roberts, Jr., who wrote the Court’s main opinion in 2009 suggesting strongly that the 1965 law was vulnerable because it was no longer keyed to current discrimination experience, again was the author of the main opinion Tuesday. It was joined in full by Justices Samuel A. Alito, Jr., Anthony M. Kennedy, Antonin Scalia, and Clarence Thomas. Besides joining that opinion, Thomas wrote a separate opinion saying that he would also strike down the Section 5, pre-clearance provision, based on the same arguments that Roberts had used to invalidate the coverage formula in Section 4.
Justice Ruth Bader Ginsburg, in a strongly worded dissent that she recited from for ten minutes during the Court session, argued that “the Court errs egregiously by overriding Congress’ decision” in 2006 to extend the law for another twenty-five years (a renewal that was enacted without updating the coverage formula). The dissenting opinion was joined by Justices Stephen G. Breyer, Elena Kagan, and Sonia Sotomayor.
The Chief Justice recalled in the main opinion that the Court had voiced constitutional worries about the 1965 law four years ago, and then commented: “Congress could have updated the coverage formula at that time, but did not do so.” That “failure to act,” Roberts went on, “leaves us today with no choice” but to declare Section 4 unconstitutional. “The formula in that section can no longer be used as a basis for subjecting jurisdictions to preclearance [under Section 5].”
While the opinion did not judge Section 5 itself, as this lawsuit had urged it to do, the language of the Roberts opinion in condemning the 1965-s obligations on covered jurisdictions was not much of an endorsement of that provision’s validity. But it appeared that, after an extensive recital of constitutional grievances about the law’s main provisions, the Chief Justice — in order to hold together all of the five-Justice majority — narrowed the final focus to the validity of the Section 4 coverage formula.
If Congress can be persuaded, against the political odds, to craft a new formula, the Roberts opinion contained a strong cautionary note. The Fifteenth Amendment, upon which federal bans on race bias in voting are based, “is not designed to punish for the past; its purpose is to ensure a better future,” it said.
Should Congress try again on defining a coverage requirement, the opinion declared, “Congress must identify those jurisdictions to be singled out on a basis that makes sense in light of current conditions. It cannot rely simply on the past. We made that clear [in 2009], and we make it clear again today.”
On some level, this is not entirely surprising. Four years ago, in Northwest Austin Municipal Utility District Number One v. Holder, the Court had expressed deep skepticism about the pre-clearance formula in Section Four of the VRA from a Constitutional point of view. The Court declined, however, to strike the act down at that time, instead choosing to give Congress the opportunity to address those concerns. When the Shelby Country case came before the Court and Congress, of course, had not taken any real steps to address the concerns raised by the Northwest Austin case, it was apparent from the oral argument that this same skepticism remained, and that it was shared by a majority of the Court in the form of the Chief Justice along with Justices Scalia, Kennedy, Thomas, and Alito. For Court watchers, then, there’s not really anything surprising in the outcome of this case.
The core of the Court’s reasoning can be found in this part of Roberts’ argument:
Coverage today is based on decades-old data and eradicated practices. The formula captures States by referenceto literacy tests and low voter registration and turnout inthe 1960s and early 1970s. But such tests have been banned nationwide for over 40 years. §6, 84 Stat. 315; §102, 89 Stat. 400. And voter registration and turnout numbers in the covered States have risen dramatically in the years since. H. R. Rep. No. 109-478, at 12. Racial disparity in those numbers was compelling evidence justifying the preclearance remedy and the coverage formula.See, e.g., Katzenbach, supra, at 313, 329-330. There is no longer such a disparity.
In 1965, the States could be divided into two groups:those with a recent history of voting tests and low voterregistration and turnout, and those without those characteristics. Congress based its coverage formula on thatdistinction. Today the Nation is no longer divided along those lines, yet the Voting Rights Act continues to treat itas if it were.(…)
In defending the coverage formula, the Government, the intervenors, and the dissent also rely heavily on data fromt he record that they claim justify disparate coverage. Congress compiled thousands of pages of evidence before reauthorizing the Voting Rights Act. The court below and the parties have debated what that record shows—they have gone back and forth about whether to compare covered to noncovered jurisdictions as blocks, how to disaggregate the data State by State, how to weigh §2 cases as evidence of ongoing discrimination, and whether to consider evidence not before Congress, among other issues. Compare, e.g., 679 F. 3d, at 873-883 (case below), with id., at 889-902 (Williams, J., dissenting). Regardless of how to look at the record, however, no one can fairly saythat it shows anything approaching the “pervasive,” “flagrant,” “widespread,” and “rampant” discrimination that faced Congress in 1965, and that clearly distinguished the covered jurisdictions from the rest of the Nation at thattime. Katzenbach, supra, at 308, 315, 331; Northwest Austin, 557 U. S., at 201.
But a more fundamental problem remains: Congress did not use the record it compiled to shape a coverage formula grounded in current conditions. It instead reenacted a formula based on 40-year-old facts having no logical relation to the present day. The dissent relies on “secondgeneration barriers,” which are not impediments to the casting of ballots, but rather electoral arrangements that affect the weight of minority votes. That does not cure the problem. Viewing the preclearance requirements as targeting such efforts simply highlights the irrationality of continued reliance on the §4 coverage formula, which is based on voting tests and access to the ballot, not vote dilution. We cannot pretend that we are reviewing an updated statute, or try our hand at updating the statute ourselves, based on the new record compiled by Congress.Contrary to the dissent’s contention, see post, at 23, we are not ignoring the record; we are simply recognizing that it played no role in shaping the statutory formula before us today.
There is no valid reason to insulate the coverage formula from review merely because it was previously enacted 40 years ago. If Congress had started from scratch in 2006, it plainly could not have enacted the present coverage formula. It would have been irrational for Congress to distinguish between States in such a fundamental way based on 40-year-old data, when today’s statistics tell an entirely different story. And it would have been irrational to base coverage on the use of voting tests 40 years ago, when such tests have been illegal since that time. But that is exactly what Congress has done.
Striking down an Act of Congress “is the gravest and most delicate duty that this Court is called on to perform.” Blodgett v. Holden, 275 U. S. 142, 148 (1927) (Holmes, J., concurring). We do not do so lightly. That is why, in 2009, we took care to avoid ruling on the constitutionality of the Voting Rights Act when asked to do so, and instead resolved the case then before us on statutory grounds. But in issuing that decision, we expressed our broader concerns about the constitutionality of the Act. Congress could have updated the coverage formula at that time, but did not do so. Its failure to act leaves us today with no choice but to declare §4(b) unconstitutional. The formula in that section can no longer be used as a basis for subjecting jurisdictions to preclearance.
Both the Majority and the Dissent in Shelby County concede what I think is a vitally important point, namely that the pre-clearance formula set forth in Section 4 of the Act, and enforced by Section 5 is an unusual provision of the American law. Ordinarily, local and state governments are free to enact laws regarding the operation of their voting laws, or any other subject for that matter, without having to seek permission from the Justice Department or a specially selected Federal Court. In 1965, though, Congress made the determination that, because of decades of racial discrimination in voting, a number of states and counties, mostly in the South, would have to seek permission to make changes to their voting laws in order to ensure that those changes would not have a disproportionate impact on the racial minorities that had been discriminated against in the past. The constitutionality of this provision of the Voting Rights Act was upheld a year later by the Supreme Court in Katzenbach v. Morgan. Originally, this part of the law had a five year time limit, but it had been extended over time by Congress, most recently in 2006 when it was extended for another 25 years. On each of these occasions, though, Congress merely relied upon the same data that had been used to create the original pre-certification formula in 1965 rather than engaging in any kind of examination of the extent to which circumstances may have changed in the jurisdictions that were placed on the pre-certification list.
On some level, it strikes me that the Court is correct to point out the problem with this type of legislating. As was noted in the Northwest Austin case, the pre-certification requirements impose significant limitations on federalism and the concept that states and localities are sovereign entities in their own right within the spheres of control that the Constitution gives them. If Congress is going to intrude in those areas, it ought to base that intrusion on data that is more current that something that was drawn up nearly 50 years ago. To deny that circumstances have changed in many of the jurisdictions that were originally put on the pre-clearance list is to deny reality. Louisiana has elected an Indian-American Governor. South Carolina has elected a female Indian-American Governor. Virginia has had an African-American Governor. At lower levels, minorities and women have been elected to a wide variety of offices in nearly all of these states. And, of course, the nation as a whole has elected an African-American President twice in a row and, if the polls are two believed, stands a good chance of electing a female President in 2016. This isn’t to say that there isn’t racial discrimination still at play in these places, but to pretend that the situation on the ground is the same as it was in 1965 is to say that we’ve made absolutely no progress at all in race relations in this country is to quite simply deny reality.
This isn’t the end of the road for the Voting Rights Act, of course. The majority of the act remains in place, and even the enforcement provisions of Section 5 are still available to Congress. The Justice Department still has the authority to sue individual jurisdictions for practices it contends are discriminatory and, under Section 3 of the Act, it can petition the Courts, to add additional jurisdiction to the pre-certification requirements of Section 5. What the Court has said today, though, is that Congress must base its legislating on something more certain than reliance on data that is nearly a half a century old. There’s nothing stopping Congress from taking this issue up again, conducting an investigation about racial discrimination in voting, establishing a record, and drafting a new formula. Now, admittedly, given the current state of Congress, that’s not entirely likely. However, it isn’t the job of the Court to hold back on its decisions because it doesn’t think Congress will act in a timely manner. That’s a question for the voters to deal with.
The immediate reaction to the ruling is about what you’d expect. One the right, people like Kevin Drum are lamenting this as good news for the GOP in 2016 and beyond, while Andrew Cohen is absurdly comparing this decision to Dred Scott and Plessy v. Ferguson, a comparison that is absurd to anyone who actually understands what those cases said and the historical impact that they had. On the right, the support for the Court’s decision is at a turn unsurprising and, in its content, not entirely uninteresting as a result of its unsurprising nature. The best commentary I’ve seen so far comes from Richard Pildes, one of the several law professors writing pieces on this decision over at SCOTUSBlog, who says this:
I have called the Voting Rights Act of 1965 (VRA) a “sacred symbol” of American democracy. For that reason, the Supreme Court’s momentous decision holding unconstitutional a part of the Act – Section 4, for short — that had continued to apply, nearly fifty years later, uniquely to the South, is itself laden with deep symbolic meaning. But what is that meaning?
In truth, the decision will express such radically different meanings to different people that we will not be able to forge common ground regarding even the threshold question of what the decision is “about.” Starting from such irreconcilable symbolic places, any discussion of the actual opinions themselves will be almost beside the point.
To those who will be distraught, outraged, or fearful, the essential question at stake in the Court’s decision – and in the continuing vitality of Section 4 — is whether we believe racial discrimination in voting still exists in the South. The question being framed this way, the Court’s decision today will appear to be, at best, a denial of reality and a reflection of a naïve “post-racial” view that in the Obama era, racial discrimination in voting has ended. Justice Sotomayor, at oral argument, perfectly reflected this perspective on what the decision represents when she posed this pointed question to the VRA’s challengers: “Do you think that racial discrimination in voting has ended, that there is none anywhere?” The answer to thatquestion must be no. From this vantage point, then, as long as racial discrimination in voting still does take place at all in the South, Section 4 of the VRA – the part the Court invalidated – remains not just justifiable, but essential.
(…)
Yet to others, including the Court’s pivotal actor, Justice Kennedy, the essential question at stake is whether our political system is frozen in place on issues concerning race. Do our political institutions and culture have the capacity to recognize that dramatic changes at the intersection of race and voting have taken place over recent decades? Section 4 was created in 1965 as a short-term measure for five years; in initially upholding that system, the Court called it “an uncommon exercise of congressional power” justified by the “exceptional circumstances” of the massive disfranchisement of black voters (and many poor whites) that existed when the VRA was enacted. In 1970, Congress extended this system for another five years; in 1975, for another eight; and in 1982, for twenty-five more years. Then, in 2006, in the provision the Court struck down, Congress re-authorized this system for another twenty-five years, until 2031. Thus we moved from a five-year regime in 1965 for exceptional circumstances to a sixty-six-year regime that continues to single out nine states (and fifty-three other counties) for unique federal control.
But of even more symbolic significance, from this perspective: these areas all became covered because of their voting practices in 1964 or, at the latest, 1975 – nearly forty years ago. And these are the same areas, and nearly the only areas, that have remained covered ever since.
(…)
From this vantage point, the question the case was “about,” then, is this: how can Congress act as if nothing significant enough has changed in the last forty years to justify any meaningful change at all in Section 4? Even if areas of discriminatory voting practices remain, surely they cannot mirror so exactly the areas of which this was true forty or fifty years ago.
What this means, Pildes goes on to note, is that this issue now becomes yet another arrow in the quiver that is used in the daily political battles that have become life in contemporary America. How you view what it means will depend largely on which side of that battle you are on.
In the end, I stand by my conclusion that the Court got this decision mostly right. Where it takes us from there is a completely different question, but I’m sure we’ll be writing and talking about it for years to come.
Here’s the opinion:
Shelby County, Alabama v. Holder by dmataconis
UPDATE: See also James Joyner’s take, “SCOTUS: ‘Can’t Rely on Past’ for Voting Rights Act“
