Bench Memos

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Another Big Civil-Rights Argument before the Supreme Court This Week


On Wednesday this week the Supreme Court will hear arguments in Northwest Austin Municipal Utility District No. 1 v. Holder, challenging the constitutionality of Section 5 of the Voting Rights Act. That’s the provision that requires certain jurisdictions (mostly but not exclusively in the South) to get the federal government’s okay whenever they want to make any change in any practice related to voting — from decennial redistricting to moving the polling place from the elementary school to the high school across the street.

The legal standard the Court has used in such cases is whether the challenged statute is “congruent and proportional” to the ends of the relevant constitutional provision, here the Fifteenth Amendment, which bans racial discrimination in voting. There are three ways in which Section 5 fails this test: (a) There is no rhyme or reason to the jurisdictions now covered (for example, the statute itself requires use of election statistics that are decades old: Texas is covered but not Arkansas, Arizona but not New Mexico, some New York City boroughs but not others, etc.); (b) it is extraordinarily intrusive in the kowtowing it requires from state and local jurisdictions to the federal government; and (c) it bans much that is not illegal under the Constitution, since the former covers anything with a racially disproportionate “effect” while the latter requires discriminatory intent (for example, the Justice Department has been urged, and the Obama administration is likely, to use Section 5 to block anti-voter-fraud measures on the theory that they “disenfranchise” a higher percentage of blacks than whites).

Were the issue merely the dry, legal one of whether we have congruence and proportionality here, five votes to strike down the law would be predictable. But we’re talking about a key provision of the Voting Rights Act, with all the history that this carries with it, which is likely to give all the justices some pause.

Yet in taking that pause the justices should bear in mind that it is precisely the ideals of the Voting Rights Act and the Fifteenth Amendment that will be jeopardized if they do not strike down Section 5. This statute is not only no longer congruent and proportional to the Fifteenth Amendment: By far its principal purpose is now to violate it.

That purpose is to require racial segregation of voters by means of racial gerrymandering. As the appellant’s reply brief says, Section 5 “is clearly in tension with the Fourteenth and Fifteenth Amendment guarantees — perhaps outright violating them [citation omitted] — rather than appropriately enforcing them.” This abuse cannot be waved away as a minor and unintended byproduct of Section 5, because the justices have expressed their own concerns about it and the amendments that Congress passed in 2006 show that it intends these abuses to be ramped up. Nor is this an abuse that can be managed by judicial oversight: There are thousands of Section 5 decisions made by the Justice Department, and for their own reasons both Democratic and Republican administrations like to use them to encourage racial segregation through racial gerrymandering.

Such segregation is not only offensive per se, but has divisive and poisonous effects. It discourages interracial coalition-building, marginalizes black politicians (particularly more conservative and Republican ones), polarizes districts and helps polarize parties, and encourages identity politics in an increasingly multiethnic and multiracial society that can ill-afford it.

In sum, the guarantees of the Constitution and the ideals of the Voting Rights Act all dictate that Section 5 has outlived its purpose. The Court should strike it down.


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