Section 5 of the Voting Rights Act appears headed for demise

To judge from the early reports of today’s arguments at the Supreme Court – and all the usual caveats apply about being careful about reading too much into what is said at argument – the Court seems prepared to invalidate section 5 of the Voting Rights Act.  That is the section that imposes a “preclearance” requirement on “covered jurisdictions,” such that any change in voting procedures in those jurisdictions must be approved by the Justice Department before they can take effect.

The preclearance requirement has long been hated by the right, and its invalidation would (correctly) be seen by them as a huge victory.  Nothing sticks in a wingnut’s craw more than the idea of some 20-something lawyer in the Justice Department’s Civil Rights Division preventing a state from changing its laws as it sees fit.  And, indeed, section 5 was an extraordinary and (I believe) unprecedented remedy – which, needless to say, was justified by the extraordinary lengths to which certain jurisdictions were going to deny some of their citizens the right to vote.

A couple of years back, the Supreme Court had the opportunity to rule on section 5, but it declined to do so, instead issuing an 8-1 opinion by Chief Justice Roberts that unquestionably laid down some markers for the next case (which is the one argued today) while deciding the case itself on narrower grounds.  Here are some key excerpts from that 2009 opinion:

Things have changed in the South. Voter turnout and registration rates now approach parity. Blatantly discriminatory evasions of federal decrees are rare. And minority candidates hold office at unprecedented levels.

These improvements are no doubt due in significant part to the Voting Rights Act itself, and stand as a monument to its success. Past success alone, however, is not adequate justification to retain the preclearance requirements.  It may be that these improvements are insufficient and that conditions continue to warrant preclearance under the Act. But the Act imposes current burdens and must be justified by current needs.

The Act also differentiates between the States, despite our historic tradition that all the States enjoy “equal sovereignty.” … [A] departure from the fundamental principle of equal sovereignty requires a showing that a statute’s disparate geographic coverage is sufficiently related to the problem that it targets….

The evil that §5 is meant to address may no longer be concentrated in the jurisdictions singled out for preclearance. The statute’s coverage formula is based on data that is now more than 35 years old, and there is considerable evidence that it fails to account for current political conditions. For example, the racial gap in voter registration and turnout is lower in the States originally covered by §5 than it is nationwide…. The Act’s preclearance requirements and its coverage formula raise serious constitutional questions….

That last point – that other jurisdictions may be as bad or worse than the covered jurisdictions – is an important one, and recent events such as the voter ID fiasco in Pennsylvania (among other places) are pretty good evidence in its favor.  Whether that means that section 5 should now be found unconstitutional, I am less certain.  It would be a sad irony indeed if recent voting-related shenanigans by Republicans in non-covered jurisdictions contributed to the invalidation of a key provision of the Voting Rights Act on the grounds that things suck everywhere now.

In any event, the prediction here (and in many other places) is that the Supreme Court will invalidate section 5 by a 5-4 vote in an opinion authored by Chief Justice Roberts.  When that happens, look for many of the same people who, in the wake of the Obamacare decision, were absurdly falling over themselves to declare Roberts the savior of the Court (if not the entire Republic) and the greatest statesman currently in public life, to castigate him in equally harsh terms.  To those people – I’m looking at you, Larry Tribe, Chris Matthews, Jeff Rosen, Gillian Metzger – I say this: you got snookered.  Roberts, IMHO, knew exactly what he was doing with respect to Obamacare, and it had very little to do with statesmanship or any other high-minded purpose.  It had everything to do with preserving the Court’s “political capital” for what Roberts considers to be more important battles.  Gutting the individual mandate (which, as we’ve discussed, is not really a mandate at all) was not really worth the brouhaha it would have caused.  But finally realizing a career-long dream of gutting the Voting Rights Act – now that would be worth it.


21 Comments . Leave a comment below.
  1. I like the idea of preclearance

    Maybe it should simply be expanded nationwide [not that there's a hope for that actually happening]…

    • I have a better idea.

      Just federalize the election process entirely. I’ve always found it absurd that states are the ones which make election law, especially for elections for federal officials.

      • Indeed!

        And, in fact, that states make the rules is the reason why I don’t like the NPV movement as it exists today. I think the idea is clever to use national popular vote results to determine EV allocation. What I don’t like is that the popular votes in places like Texas [with or without Sec 5] determine the outcome. Most popular votes in Texas are just fine, but the fact remains that different laws and efforts to enforce different laws pertaining to
        * voter eligibility
        * absentee ballots
        * early voting
        * distribution of voting machines
        * time the polls are open
        and any number of other things impact the vote totals.

        It just seems strange to count national popular votes when a convicted felon in Vermont can vote from jail and a convicted felon in Virginia will never vote again, even after parole, even after probation.

  2. Very useful discussion

    I am not an attorney, and I don’t understand the nuances of this law. I appreciate this discussion, however. Very interesting and helpful. Thank you, David.

  3. So if things suck everywhere

    Except,apparently, in those states under section 5, isn’t it a good bet that things will suck in those states too w/o section 5?
    There have been laws against murder since at least Hamurabi. Has this deterred murder? Are there no longer murderers?
    Point is, laws don’t change the culture; they protect us from the perrenial bad actors. That the court says voter suppression is a thing of the past in these state and therefore, their work is done is poor justification for a badly politicized SCOTUS.
    But then, one group abrogating the rights of another group is what the Right in this country call ‘freedom.’

  4. I cannot figure out the constitutional objection.

    A jurisdiction that doesn’t like section 5 can always clean up its act and bail out. In fact this is one of those things that has explicit constitutional authority. Amendment XV not only says that states shall not infringe on voting on the basis of race or color, but goes on to say (superfluously IMO) that Congress shall have the authority to enforce the amendment with appropriate legislation. Congress overwhelmingly believes this is appropriate enforcement legislation so that should settle it. I do wonder though, if it is not universal, if the list of jurisdictions covered should be revisited whenever the VRA is reauthorized.

    • Broadly speaking,

      the objection is that states retain some degree of inherent sovereignty, and (a) requiring that a state get DOJ’s permission to change its laws is an extraordinary infringement on that sovereignty, especially when (b) not all states have to do it.

      The clauses regarding congressional enforcement are far from superfluous; they are in fact essential.

      • To David and Fenway49 regarding Congressional authority

        Members of Congress are sworn to uphold the Constitution. Therefore if the Constitution says this is the way things are going to be, then OF COURSE they have the authority to legislate in a way that ensures that things are in fact going to be that way. It’s basic to their job description it seems and it would be dereliction of their duty to not enforce the Constitution (ditto POTUS and SCOTUS using the tools at their respective disposals). We should not have to reiterate that basic principle of constitutional governance with each individual amendment as has been our habit with the 15th and other voting rights amendments.

        • But they can't legislate

          anything without the power to do so having been conferred on Congress. To legislate outside the conferred powers would itself violate the Constitution. Congress has no blanket power to “enforce the Constitution,” enforcement being within the province of the executive anyway.

        • Christopher,

          I recall from past conversations that you are not a fan of the notion that Congress can act only as specifically authorized in the Constitution. Nonetheless, that is the system we have. So if Congress is to legislate in the specific area of protecting voting rights from being abridged by state authorities, it must have specific authority in the Constitution to do so. Obviously, such authority did not exist prior to the passage of the 15th Amendment. Therefore, the “Congress may enforce” language is legally necessary; without it, the Voting Rights Act (along with many other important pieces of legislation) would be plainly unconstitutional as in excess of Congress’s authority to legislate. I’m sorry you don’t like it, but that is how the Constitution works.

          • That strikes me...

            …as an obnoxiously extreme strict contructionist interpretation of the tenth amendment or somesuch. I think even those who believe government that governs best governs least would acknowledge that legislation is necessary as pieces of parchment don’t enforce themselves. Has that concept been tested in the courts? Otherwise I still say it’s pretty obvious that Congress has every right to legislate in a way that ensures the Constitution works the way it is supposed to.

            • Not at all

              The 10th Amendment has nothing to do with it. The entire premise of our constitution is that the federal government has only its enumerated powers. That’s the way they designed it.

              In the absence of the “enforce by appropriate legislation” clause, some Scalia-esque court could easily strike down enforcing legislation by saying there’s no such power conferred on Congress. Including the clause, even if you find it superfluous, eliminates that line of argument. As it is, they’ve done their best to whittle the power down.

            • "an obnoxiously extreme strict contructionist interpretation"

              Good Lord, Christopher, it is no such thing. It is absolutely mainstream, standard, universally-accepted basic constitutional law. Everyone who knows anything about constitutional law, from the leftiest lefty to the rightiest righty, agrees that Congress does not have plenary power to legislate, but rather may act only according to the powers that are specifically enumerated in the Constitution. The disagreement comes in the interpretation of how broadly some of the powers (the power to regulate interstate commerce, for example) extend.

              Has that concept been tested in the courts?

              Gosh, only about five thousand times.

              • The concept I was referring to...

                …was not plenary legislative authority over something not mentioned at all. Rather I wanted to know if there is any Constitutional provision that says something without also giving Congress express authority to enforce it where Congress has legislated and been challenged on legislatively enforcing that which the Constitution says should happen. This is beyond loose vs. strict constructionism. I am a loose constructionist in the sense that I believe that which is not prohibited should be fair game. In this case we have a provision that IS required by the Constitution so even strict construction should acknowledge Congressional authority to make it so. To say that the other interpretation is mainstream and excepted throws out the entire New Deal and any other legislation based on a similar philosophy of federal power. Certainly you realize that ship sailed decades ago. Otherwise we would have to concede the unconstitutionality of health care reform, SS, Medicare, federal minimum wage, VAWA, etc. etc.

    • Agree with David on this

      Amendment XV not only says that states shall not infringe on voting on the basis of race or color, but goes on to say (superfluously IMO) that Congress shall have the authority to enforce the amendment with appropriate legislation.

      Congressional power to enforce by legislation has to come from somewhere, and it wasn’t in the original Article I. Without the language conferring power on Congress, the amendment is a prohibition on bad state action and no more.

      Also agree Roberts knew what he was doing on ACA, and that it was silly to think that decision meant he had transformed into some kind of moderate (a view I’ve heard expressed). I also think he thought the “tax” rationale might be effective against Obama electorally.

      I also think the logic of the decision leaves the door open to all sorts of forced purchases of private products. If the feds can tax you to pay for security, they can mandate that you buy security from Blackwater. Or buy a gun. Not saying these mandates will happen soon, just that they’re within the Roberts ACA rationale. To me it was plain as day the ACA fell within the Commerce Clause power.

  5. I can accept, though I disagree with it, that there is an argument to be made

    that section 5 of the Voting Rights Act consititutes an infringement on state sovereignty. But I see no justification in Justice Scalia’s statement in yesterday’s proceedings that section 5 is a “racial entitlement.”

    The 15th Amendment to the Constitution and a number of other amendments specifically refer to the “right” to vote of all citizens of the United States. Is Justice Scalia saying that voting is a right for whites but an entitlement for blacks?

    It seems to me there is an underlying premise in Scalia’s statement that blacks are somehow inferior to whites. Otherwise, how could he argue that a legislative provision that ensures that blacks are able to vote in states that have a history of practicing discrimination is “entitling” them to something? Entitlement implies a grant or favor to a group that may or may not deserve it.

    And this is the justice who may cast the deciding vote to gut the Voting Rights Act?

    • Sounds like

      just more dog whistle to me. But I think he believes that the protection offered by Section 5 is undue and, waaah waaah, not offered to other groups in other states. Obviously there is a reason for that: a century plus of history.

      It would be nice if things like Section 5 were not necessary, but that was not the situation in 1965. Things have improved in those states since (most likely BECAUSE of the VRA), but I don’t think we can safely say Section 5 no longer is needed.

  6. It was pointed out

    somewhere that the Roberts cabal could invalidate Section 5 on the theory that a showing of intentional discrimination by race is needed, while GOP state legislatures routinely pass Voter ID laws to combat “fraud” without any such finding that it exists.

  7. Let's look at the progress Mississippi has made in the last 50 years...

    …or not

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