FantasySCOTUS: End of the line for the Voting Rights Act?

November 13, 2012

SCOTUS ClipboardA week ago, America went to the polls and reelected President Barack Obama.

Among the identified factors helping Obama in achieving this electoral victory is his strong support among minority voters, such as Latinos and African Americans.

Later last week, the Supreme Court granted certiorari to Shelby County v. Holder, which deals squarely with the issue of voting by such minorities.

I actually dedicated a full post to this case back in February, in which I made two predictions:

  1. The appeals court would affirm the district court, and
  2. The Supreme Court would deny certiorari.

Obviously, I got the second one wrong, but I was correct on the first one.

Before I get to a different prediction – one on how the Supreme Court will rule – here’s a little background (in case you don’t feel like reading that earlier post).

Congress passed the Voting Rights Act in 1965 to address rampant voter disenfranchise practices in some areas of the country (predominantly in the South).

Section 5 of the VRA, the portion of the law challenged in Shelby, requires that a “covered jurisdiction” cannot change “any voting qualification or prerequisite to voting, or standard, practice, or procedure with respect to voting” without federal approval.

Shelby County, Georgia is one such “covered jurisdiction,” meaning that it must demonstrate that any proposed change to its voting laws don’t have a “discriminatory purpose” or “retrogressive effect” on minority voters.

Most recently, Section 5 has prevented the implementation of electoral redistricting maps and voter ID laws, with the Justice Department making findings in each circumstance that the proposed changes would have a disproportionately negative impact on minority voters.

Considering that minority voters tend to strongly lean Democratic, “covered jurisdictions” have seen more resistance to their proposed voting law changes under Democratic presidential administrations than under Republican ones.

Does that same ideological divide apply on the Supreme Court?

We may not know for sure until the Court hands down its decision in this case, but we have several instances of small revelations of the Court’s opinion of Section 5.

Most recently, we have Perry v. Perez, decided in January of this year (discussed in detail in this post).

That case dealt with a federal judge’s drawing his own version of Texas’s redistricting maps after it became apparent that the maps drawn by the Texas legislature wouldn’t get preclearance before the 2012 elections.

The Supreme Court had the opportunity to strike down Section 5 with this ruling – something many anti-Section 5 advocates were hoping would happen – but declined to do so.

However, Justice Clarence Thomas, writing separately, reiterated his declaration of Section 5’s unconstitutionality.

So we at least know how Justice Thomas will vote in Shelby (as if there was any real question).

Perhaps more telling, though, is the fact that the Court declined to strike down Section 5.

There are many ways to interpret this: the Court may be still undecided, or the Court could have felt that it was a judicial overreach to address issues not squarely presented to it.

I wouldn’t go so far as to say that it could be interpreted to mean that the Court wholeheartedly believes Section 5 to be constitutional.

The primary reason for this lies in a small portion of 2009’s Northwest Austin Mun. Utility Dist. No. One v. Holder.

In this case, the Supreme Court explicitly avoided deciding the question of Section 5’s constitutionality, but, as implied from the above sentence, that’s not all.

That abovementioned small portion of the opinion raised serious questions about the constitutionality of Section 5’s preclearance requirements.

Since that “small” portion is only small in relation to the size of the rest of the opinion, I’ll boil it down for you:

Chief Justice Roberts, writing for the majority, held that, although the Voting Rights Act has vastly improved conditions in the South, “[p]ast success alone, however, is not adequate justification to retain the preclearance requirements.”

In order to survive constitutional scrutiny, then, the government must show that the “current burdens” imposed by the Act “must be justified by current needs.”

In addition, since Section 5 treats some states different than others (“a departure from the fundamental principle of equal sovereignty”), the government must also show that the Act’s “disparate geographic coverage is sufficiently related to the problem that it targets.”

The first one shouldn’t be too much trouble.

In light of the wave of redistricting attempts and voter ID laws from covered jurisdictions that, after a comprehensive examination, the Justice Department found to disproportionately discriminate against minority voters, the government should be able to easily argue that there are ongoing minority disenfranchisement issues that require federal intervention.

The second required showing, conversely, will be problematic.

Voter ID laws and redistricting maps that disproportionately discriminate against minority voters are no longer primarily limited to the “covered jurisdictions” of Section 5; they are found nationwide.

Thus, during Shelby’s oral arguments, the Court will undoubtedly inquire strongly into the government’s justification for treating some states differently than others.

If the government can withstand this scrutiny (of which I am doubtful, given its recent track record during oral arguments), Justice Kennedy or Chief Justice Roberts may be swayed enough to create a majority upholding Section 5.

Otherwise, Section 5’s demise seems imminent.

My prediction, subject to revision after oral arguments, is a 5-4 reverse along ideological lines.

Shelby County v. Holder

Question Presented

Whether Congress’ decision in 2006 to reauthorize Section 5 of the Voting Rights Act under the pre-existing coverage formula of Section 4(b) of the Voting Rights Act exceeded its authority under the Fifteenth Amendment and thus violated the Tenth Amendment and Article IV of the United States Constitution.

Lower Court’s Decision

Section 5 is constitutional.

My Prediction

REVERSE 5-4 (Majority:  Roberts, Alito, Kennedy, Scalia, and Thomas; Dissent: Ginsburg, Breyer, Sotomayor, and Kagan).

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