June 25, 2013
Shelby County was a challenge to Sections 4 and 5 of the Voting Rights Act of 1965. Section 5 prohibits certain states from making any changes to their voting laws and regulations without approval from the Justice Department.
Section 4 lays out the formula to determine exactly which states and counties are “covered” by Section 5. Shelby County, Alabama is one such “covered” jurisdiction.
The thrust of Shelby County’s argument was that Sections 4 and 5 are unconstitutional because they exceeded Congress’ powers under the Fifteenth Amendment to enforce the Amendment’s ban on racial discrimination in voting practices, thus infringing on the states’ powers reserved by the Tenth Amendment.
The Court sided with Shelby County five to four along ideological lines, as I previously predicted.
Unlike my previous predictions, however, the Court only sided with Shelby County on the constitutionality (or rather, the lack thereof) of Section 4, not Section 5.
The Shelby County majority did not explicitly uphold the constitutionality of Section 5, though: it still found the broad powers given to the federal government against the states to be “troubling.”
Nevertheless, since the majority noted that “[t]he provisions of §5 apply only to those jurisdictions singled out by §4,” the Court declined to directly address the question of Section 5’s constitutionality, instead focusing solely on Section 4’s.
The problem with Section 4 noted by the majority was that Congress’ formula in 2006 (when the Voting Rights Act was reauthorized) for determining which jurisdictions would be covered by Section 5 really hadn’t changed in the 40 years since the Act was originally passed.
Specifically, the majority noted that, by the government’s own admission, the formula was “reverse-engineered” – that is, “Congress identified the jurisdictions to be covered and then came up with criteria to describe them.”
In other words, Congress already had singled out those jurisdictions that were covered by Section 4’s formula before it actually made the formula, and then changed the formula to make sure to include those jurisdictions – despite the “greatly improved” current conditions.
Justice Ginsburg’s dissent disagreed, finding that, although the conditions have improved since 1965, there are still flagrant racial discriminatory practices in voting regulations in those jurisdictions.
Instead of merely (and seemingly lazily) singling out the same jurisdictions for Section 5 scrutiny again and again, as the majority depicts, the dissent finds just the opposite, sparing no harsh words for the majority in the process:
“Congress approached the 2006 reauthorization of the VRA with great care and seriousness. The same cannot be said of the Court’s opinion today.”
Ouch (and that wasn’t even the worst thing Ginsburg’s dissent says about the majority).
Anyhow, as I mentioned earlier, I wasn’t surprised by the decision. True, Section 5 wasn’t explicitly held unconstitutional, but it’s still effectively dead along with Section 4.
Why is this so?
Despite the dissent’s harsh criticisms of the majority’s view that Congress basically reauthorized Section 4 on autopilot in 2006, there are hints of truth to what the majority says.
It isn’t exactly how they would depict the situation: Congress wasn’t trying to punish these jurisdictions because of how bad racial discrimination had been there historically. There is still pervasive racial discrimination in voting practices in jurisdictions identified by Section 4’s formula.
To the majority, however, things aren’t as bad there as they were in 1965 (and that’s true: firehoses and police dogs are no longer being turned on civil rights demonstrators in Birmingham (Shelby County sits on the south end of the Birmingham metropolitan area)).
But according to the majority, things aren’t significantly worse in these covered jurisdictions than in some other areas of the country that aren’t “covered” by Section 4.
The majority’s answer to this is to simply say that no bad actors are covered until all of the bad actors are covered (the dissent doesn’t necessarily disagree that other areas of the country should be covered by Section 4’s formula, but it would have the Court defer to Congress’ legislative judgment, as it seems to do in so many other areas of the law).
The problem with the majority’s approach is exactly the reason why Section 5 will never again see the light of day: it’s extraordinarily difficult for Congress to expand the reach of Section 5 through expansion of the coverage formula of Section 4.
There are very likely many, many areas of the country that practice racial discrimination in voting regulations as badly as or worse than those jurisdictions “covered” by Section 4 (until today).
However, it is extremely toxic politically for a senator or representative to vote to bring brand new federal voting regulations – especially ones as heavy-handed as Section 5’s – on their constituencies.
That’s a big reason why Section 4’s formula has seen relatively little change over the past 40 years (there have certainly been additions, though nothing too significant): it’s difficult for members of Congress to vote against the reauthorization of a (if not the) landmark Civil Rights-era piece of legislation, but even more difficult (not to mention enormously time-consuming) to look at the rest of the country for racially discriminatory voting practices.
And the Supreme Court’s ruling in Shelby County will only make this marginally easier, if at all.
Thus, without a new Section 4 formula, there are no jurisdictions subject to Section 5, rendering the latter provision lifeless.
So in striking down Section 4 in a five to four vote along ideological lines, the Court also struck down Section 5 in the same manner.
It looks like I was correct in my predictions after all.