Yesterday the Supreme Court wrote a cliffhanger of an opinion on the constitutionality of Section 5 of the Voting Rights Act (VRA), one of the most powerful weapons in the civil-rights arsenal. In the Northwest Austin Municipal Utility District Number One (NAMUDNO) v. Holder opinion, the Court raised serious questions about Section 5's future, but it didn't pull the trigger. The question is how this story will end.
Section 5 requires certain jurisdictions to ask the federal government's permission before making any change -- no matter how small -- in the way they run elections. Until a rule was "precleared," it could not be implemented. This unusual provision solved the central problem of voting-rights enforcement during the civil-rights era -- keeping up with the increasingly creative strategies recalcitrant state and local governments used to disenfranchise voters. Every time a court deemed one discriminatory practice illegal, local officials would switch to another. Section 5 shifted the burden of inertia, allowing the Department of Justice to get one step ahead of local officials.
In 2006, Congress renewed Section 5 for an additional 25 years. That legislation was immediately challenged by NAMUDNO, a tiny utility district, as an unconstitutional extension of Congress' power to enforce the 14th and 15th Amendments. The oral arguments suggested that at least five justices had serious doubts about Section 5's constitutionality. Supporters of the act feared that the "crown jewel" of the VRA would be struck down either on the ground that Section 5 was too burdensome or on the ground that Congress didn't have enough evidence to justify the "coverage formula" that targeted mostly Southern jurisdictions while leaving other areas with voting problems alone.
Much to everyone's surprise, the Court ducked the issue, in what is arguably one of the most egregious judicial punts in recent memory. The Court offered a statutory ruling that will allow NAMUDNO to get out from under Section 5 under the act's "bailout" provisions, thus mooting the case and eliminating the need to address the bigger question of Section 5's constitutionality. Ruling on narrow grounds to avoid a hard constitutional question is a perfectly respectable practice. The puzzle here is that few people thought the statutory argument was a strong one. Take a look at the decision by the court that considered NAMUDNO's claims before the Supreme Court did. Judge David Tatel's opinion just shreds NAMUDNO's statutory argument, making a strong case that Congress never intended jurisdictions like NAMUDNO to bail out on their own. Further evidence that the Supreme Court was punting? It devotes a substantial amount of time to questioning Section 5's constitutionality, the issue it is supposedly not going to address. The opinion reads like a rough draft of the opinion the Court would have written had it struck down Section 5.
If you are a fan of Section 5, things look pretty dire. Did you think that the Court would find that Congress was right to maintain the coverage formula that covers much of the South and little of the North? "Things have changed in the South," the Court intones, listing all the ways in which Southern jurisdictions have caught up with the rest of the country. Did you hope that the Court would believe the many jurisdictions that said Section 5 wasn't burdensome? Section 5 imposes "substantial 'federalism costs'" and in any case "depart[s] from the fundamental principle of equal sovereignty," says the Court. Knowing that the Supreme Court requires Congress to provide evidence when it burdens states, maybe you held out hope that the Court would follow Judge Tatel's lead and apply a kinder, gentler standard to the congressional record (requiring there to be enough evidence of discrimination to conclude that Section 5 was a "rational means" of addressing it) than the Court has applied in recent cases (demanding proof of widespread discrimination to show that Section 5 is "congruent and proportional" to the harm). Alas, no. "The Act's preclearance requirements and its coverage formula raise serious constitutional questions under either test," concludes the Court.
You can see why it's a cliffhanger. The Supreme Court has cast doubt on the most obvious arguments for letting Section 5 stand -- that it was OK for Congress to apply the statute selectively to Southern states, that Section 5 imposes a minimal burden on those jurisdictions, that the evidence Congress provided was powerful enough to justify the burden it did impose. The Court has done everything, in short, except pull the trigger and strike Section 5 down. Is there a chance Section 5 will survive when we tune in next?
Perhaps. Everyone knows the recipe for ending a B movie. Sometimes the guy holding the gun just blinks. It may be that when the lawyers re-enact this drama, Justice Anthony Kennedy -- widely thought to be the swing vote in this case -- will not provide the fifth vote to invalidate Section 5.
Or perhaps Section 5 has another escape route. The Court darkly hints in its opinion that Section 5 will likely fall under both the demanding "congruence and proportionality" test and the gentler "rational means" standard. But, as I have argued elsewhere, to ask whether Congress had enough evidence in front of it to justify the burdens Section 5 imposes is to ask the wrong question. When Congress passes a statute for the first time, you would expect it to have evidence that there was a genuine problem in need of fixing -- that is what both standards are designed to test. The question here is what kind of evidence Congress needs to produce when it wants to renew what lawyers would call a prophylactic statute, a broad set of protections designed to deter discrimination. If the Court uses the standards designed for newly enacted legislation to a statute that Congress is just re-enacting, it could put Congress in a catch-22. If the legislation were working, there wouldn't be much evidence of discrimination, and Congress wouldn't be allowed to renew the law. If the statute weren't working, Congress would have the evidence of discrimination it needed, but there wouldn't be much point to renewing a statutory failure. What the Court ought to do is create an entirely different standard to deal with a special case like this one.
What's most attractive about this solution is that, like the Court's opinion yesterday, it offers a narrow escape route; I can't think of any other statute to which it would apply. The arguments made in favor of the "rational means" test have largely turned on the idea that voting is different or that Congress has the most leeway to regulate when race is involved. But asking the Court to give Congress lots of deference when it is regulating the right to vote or policing race discrimination is asking a lot; the Court hasn't shown much faith in legislative decisions in either area. The "use a generous standard when renewing a prophylactic statute" solution merely asks the Court to issue a one-way railway ticket, good for this case and this case only.
Finally, it's possible that the cavalry might come to Section 5's rescue, in the form of a congressional solution. The oral argument in April already prompted one prominent scholar to act before the Court issued its decision. And it's hard not to read the decision as a shot across the bow, giving members of Congress a chance to fix the problem before the Court fixes it for them. A number of commentators -- including American Prospect Online guest bloggers -- have come up with potential fixes, ranging from allowing civil-rights groups to "opt in" to the Voting Rights Act to creating a national right to vote, from requiring local officials to consider the impact of their decisions on participation rates to proactive bailout. Many of these proposals draw on conversations begun at a conference hosted by the Tobin Project and the American Law Institute on elections research and reform in February 2009 or build upon work done for the leading collection of scholarship on Section 5's renewal gathered here.
Depending on Congress to save the day means betting on a long shot. Congress is powerful, but it's a lumbering giant, one that often requires a fairly sizeable crisis to get it to budge. Whether the Supreme Court's implicit threat is enough of a prod remains to be seen. But that, of course, is just what makes for a good cliffhanger.
Further reading on the Voting Rights Act:
Stephen Ansolabehere, a government professor at Harvard University, and Nathaniel Persily, a professor of law and political science at Columbia University, argue that more electoral data is necessary to understand where voting discrimination is happening and to what extent.
Bruce Cain, a professor of political science at Berkeley, and Daniel Tokaji, an associate professor of law at The Ohio State University, say that states with low participation rates should be required to issue “electoral impact statements,” to discourage practices that suppress turnout among poor and minority voters.
Heather Gerken, a law professor at Yale University, offers an opt-in approach to the Voting Rights Act.
Michael McDonald, a professor of politics at George Mason University, proposes "proactive bailout," where the Department of Justice actively reviews which jurisdictions merit continued federal scrutiny per Section 5 of the Voting Rights Act.
Richard H. Pildes, a law professor at New York University, argues that Congress should respond not by trying to rejigger Section 5, but by adopting national, universal voting-rights protections.