Shelby County v. Holder (2013)
Under the Voting Rights Act of 1965 § 5 (VRA), several Southern states had to receive “preclearance” from federal authorities (i.e., the attorney general or a three-judge panel) before changing their voting procedures.1 Section 4(b) provided the coverage formula for determining which states fell under the “preclearance” requirement: those states that maintained a test or device as a prerequisite to voting as of November 1, 1964, coupled with voter registration or turnout less than 50 percent in the 1964 presidential election.2 Accordingly, the covered states were Alabama, Georgia, Louisiana, Mississippi, South Carolina, Virginia, and parts of North Carolina and Arizona.
Shelby County, Alabama, filed a lawsuit in federal district court against the attorney general seeking a declaratory judgment that §§ 5 and 4(b) were unconstitutional. The District Court ruled against Shelby County, and subsequently, the D.C. Circuit Court of Appeals affirmed the lower court’s decision. The record from the lower courts showed that § 5 was still necessary in certain states to protect the voting rights of minority voters.
After reviewing the case, a majority of the Supreme Court left § 5 in place, but found the coverage formula in § 4(b) unconstitutional.3 Writing for the majority, Justice Roberts’ analysis focused on two applicable precedents—South Carolina v. Katzenbach (1966)4 and Northwest Austin Municipal Utility Dist. No. One v. Holder (2009).5 The court’s decision in Katzenbach upheld the constitutionality of the VRA and became the seminal precedent for over forty years. According to table 10.1, Justice Roberts referred to Katzenbach twenty-seven times, constituting 10.5 percent of the opinion.
Table 10.1 Justice Roberts’ Majority Opinion, Shelby County v. Holder (2013)
|
Content |
Number of lines |
Percentage of opinion |
|
Reference to South Carolina v. Katzenbach (1966) |
27 |
10.51 |
|
History of Voting Rights Act |
24 |
9.34 |
|
Congress and the Voting Rights Act |
23 |
8.95 |
|
Citations to Northwest Austin(2009)—VRA outdated |
16 |
6.23 |
|
Pronouncements of law or fact (w/o citation) |
15 |
5.84 |
|
Argument that VRA is outdated (w/o citation) |
13 |
5.06 |
|
Case facts and case history |
12 |
4.67 |
|
States’ rights argument with citation |
11 |
4.28 |
|
Arguments in support of appellant (w/o citation) |
10 |
3.89 |
|
Criticisms of dissent (w/o citation) |
10 |
3.89 |
Notes: N = 257. This table presents data for content that appeared at least ten times in the opinion.
Source: Table created by author based on data from Shelby County v. Holder, 570 U.S. 529 (2013).
More recently, the court decided Northwest Austin. In that opinion, Justice Roberts took the opportunity obiter dictum to question the constitutionality of certain provisions of the VRA. Although the language he used in Northwest Austin did not have an impact on the outcome of the case or have any precedential value, his words became a key part of the majority’s analysis in Shelby County.6 The Shelby County opinion referred to Northwest Austin a total of twenty-seven times and sixteen times as precedent on the constitutionality of the VRA.
The Northwest Austin case involved a Texas utility district that filed suit seeking a bailout of the VRA. When Congress reauthorized the VRA in 1982, it implemented a bailout provision that allowed political subdivisions in covered jurisdictions to apply for exemption from the VRA’s coverage formula. In order to qualify for the bailout, political subdivisions had to meet certain criteria demonstrating an absence of discrimination over a set period of time. The Texas utility district applied for a bailout as a political subdivision, however, a three-judge District Court panel ruled that it did not qualify as a political subdivision. Therefore, it was ineligible to apply for a bailout. The Supreme Court disagreed with the District Court’s interpretation of the bailout provision, and “construed the statute to allow the utility district to seek bailout.”7 Writing for the majority in Northwest Austin, Justice Roberts stated, “Things in the South have changed. Voter turnout and registration rates now approach parity. Blatantly discriminatory evasions of federal decrees are rare. And minority candidates hold office at unprecedented levels.”8 These words, from his own opinion four years earlier, constituted the main precedent relied on by the majority in Shelby County.
Prior to Shelby County, the Supreme Court consistently upheld the constitutionality of the VRA, and there was no question about Congress’ intent or the plain meaning of the statute. Instead, the majority rested its decision on the proposition that the issue of discrimination in the covered states had been adequately addressed. This determination flew in the face of Congress’ decision to reauthorize the statute in 1982 and 2006 based on an extensive Congressional record that showed the statute was still necessary to protect minority voters. In a clear case of “legislating from the bench,” the Supreme Court justices substituted their opinion for that of the elected representatives in Congress and decided these protections were no longer necessary.
In defense of its decision, the majority relied on three principles: equal sovereignty among the states, federalism, and the belief that the VRA was out of date. First, the majority asserted that the Constitution guaranteed that states were “equal in power, dignity and authority.”9 Under preclearance, nine states were required to ask the federal government for permission to enact laws that other states could enact on their own. This process could delay legislation for years, while other states could enact changes immediately.
Second, preclearance authorized a federal intrusion into state and local policymaking. Justice Roberts made the states’ rights argument a central part of his opinion in Shelby County. There are a total of sixteen instances where this issue was discussed, making up 6.2 percent of the opinion. Justice Roberts wrote, “States retain broad autonomy in structuring their governments and pursuing legislative objectives. Indeed, the Constitution provides that all powers not specifically granted to the Federal government are reserved to the States or citizens.”10 He went on to cite his own statement in Northwest Austin that the preclearance requirement was “extraordinary legislation otherwise unfamiliar to our federal system.”11
The largest portion of Justice Roberts’ opinion involved the relevance of the VRA in light of advancements made in the South over the previous forty years. There are thirty-five lines, or 13.6 percent of the opinion, suggesting the preclearance requirement and coverage formula were outdated in light of the growing levels of participation of African Americans in elections. At the time, statistical evidence showed African American voter turnout and the number of minority candidates holding office had increased dramatically. Prior to passage of the VRA, African American registration in Alabama was only 19.4 percent, which was approximately 50 percentage points below the registration for white voters. However, a Congressional report showed that voter registration in Alabama among African American voters in 2004 was 72.9 percent, compared to 73.8 percent for white voters.
Justice Roberts conceded this improvement was due in large part to the VRA. The Congressional record demonstrated that, absent the preclearance requirement in these states, widespread discrimination would have continued. This was undoubtedly why Congress reauthorized the Act in 2006 for another twenty-five years. By striking down the coverage formula, the justices overruled Congress’ judgment on a matter of policy basically because the policy was working too well. The majority concluded the coverage formula ignored advancements in society and kept the focus “on decades-old data relevant to decades-old problems, rather than current data reflecting current needs.”12 This statement reflected a willingness on the part of the justices to ignore the lawmakers’ intent, as well as decades of Supreme Court precedent upholding the constitutionality of the VRA.
Both the majority and dissent agreed the federal preclearance requirement under the VRA was an effective deterrent to historical disenfranchisement. Nevertheless, covered jurisdictions continued to propose changes to their voting laws that were then rejected by the attorney general. These attempts provided the court with ample evidence of what would happen when the preclearance requirement was removed.
In light of this history, Congress continually reauthorized the VRA, and the court upheld its power to do so, until this case. The dissent argued that deference to Congress regarding the exercise of the Fourteenth and Fifteenth Amendments was well established. Justice Ginsburg declared, “When confronting the most constitutionally invidious form of discrimination, and the most fundamental right in our democratic system, Congress’ power to act is at its height.”13 Section 2 of the Fifteenth Amendment specifically stated that “The Congress shall have power to enforce this article by appropriate legislation.”14 Thus, the court had always respected Congress’ power to protect minority voters as long the means used were rationally related to that purpose. The court’s responsibility was to determine if Congress had adopted a rational means for achieving a legitimate objective.
As Justice Ginsburg pointed out, Congress assembled a voluminous record justifying its decision and satisfying the minimal requirements of the rational-basis test.15 Congress compiled hundreds of DOJ rejections between 1982 and 2006. Justice Ginsburg noted there were over 700 voting changes blocked during this time period, and “Congress found that the majority of DOJ objections included findings of discriminatory intent.”16 Furthermore, the record showed over 800 proposed changes were altered or withdrawn. The record compiled by Congress was described by the Chair of the House Judiciary Committee as the most extensive record he had ever seen over the course of his twenty-seven-year career in the House. The record provided clear evidence of the extent to which § 5 protected minority voting rights and the continued pervasiveness of racial discrimination in the covered jurisdictions. Moreover, Justice Ginsburg observed that the record didn’t even include some forms of discrimination, such as intimidation and violence against minority voters.
The Congressional record also indicated that the covered jurisdictions were more racially polarized than the rest of the country, and racial polarization increases the likelihood minorities will be outvoted and underrepresented in state legislatures. When politics within a county is divided along racial lines, the decisions usually are as well. “In other words, a governing political coalition has an incentive to prevent changes in the existing balance of voting power. When voting is racially polarized, efforts by the ruling party to pursue that incentive ‘will inevitably discriminate against a racial group.’”17 Justice Ginsburg compared this situation to the need for buildings in California to be earthquake proof. In counties with greater levels of racial polarization, it is necessary to have more protections against racial discrimination.
The dissent concluded, “Throwing out preclearance when it has worked and is continuing to work to stop discriminatory changes is like throwing away your umbrella in a rainstorm because you are not getting wet.”18 The majority essentially put Congress in a Catch-22. In order to justify reauthorization, Congress had to compile a record showing the law’s effectiveness. But, by compiling such a record, Congress gave the majority its reason for striking down the reauthorization. If the law had been ineffective, and African American participation had remained low in the covered jurisdictions, would the majority have upheld the reauthorization? The majority’s logic results in circular reasoning. Why would Congress renew an ineffective piece of legislation?
NOTES
1. Voting Rights Act of 1965 § 5, 52 U.S.C. § 10101.
2. Id. at § 4.
3. Shelby County v. Holder, 570 U.S. 529 (2013).
4. South Carolina v. Katzenbach, 383 U.S. 301 (1966).
5. Northwest Austin Municipal Utility District No. 1 v. Holder, 557 U.S. 193 (2009).
6. Justice Roberts concluded his opinion in Northwest Austin by stating, “Whether conditions continue to justify such legislation is a difficult constitutional question we do not answer today. We conclude instead that the Voting Rights Act permits all political subdivisions, including the district in this case, to seek relief from its preclearance requirements” (Northwest Austin, 557 U.S. at 204).
7. Shelby County, 570 U.S. at 540.
8. Northwest Austin, 557 U.S. at 202.
9. Shelby County, 570 U.S. at 544.
10. Id. at 543.
11. Northwest Austin, 557 U.S. at 211.
12. Shelby County, 570 U.S. at 554.
13. Id. at 566.
14. Id. at 567.
15. Congress pledged to review the Act again after fifteen years, with reauthorization required after twenty-five years.
16. Shelby County, 570 U.S. at 571.
17. Id. at 578.
18. Id. at 590.