On Wednesday, federal district court judge John Bates issued a decision in Shelby County v. Holder upholding the constitutionality of Section 5 of the Voting Rights Act, which requires some jurisdictions (mostly but not exclusively in the South) to get permission from the federal government before making any change, no matter how trivial, in practices and procedures related to voting.
This was disappointing but not surprising. It would take a very brave federal judge to stick to rule-of-law principles and find Section 5 unconstitutional. Such action would bring a torrent of hysterical wrath from the media and the professional grievance industry that makes up much of the civil-rights community these days.
Unfortunately, the same judge is on a second case contesting the constitutionality of Section 5, LaRoque v. Holder. That case was filed by residents of Kinston, N.C., after the Justice Department objected to a change from partisan to nonpartisan city elections. The change had been approved by a majority of black voters in a referendum. DoJ based its objection on the dubious (and insulting) claim that, without a partisan label next to a candidate’s name, black voters would not know who to vote for. We can now expect the judge to dismiss LaRoque following the same mistaken rationale he employed in Shelby County.
The court’s decision is not of great import, since one way or another the Shelby County case (along with LaRoque) is headed to the Supreme Court. The Supremes ducked the Section 5 constitutional question in 2009 in a Texas case. They should not be surprised to see the issue before them again in a year or two.
Most of Judge Bates’s 151-page opinion was a review of the record Congress concocted (and we use that word advisedly) in 2006 to justify extending the statute. Section 5 was originally — and, at the time (1965), quite justifiably — enacted for only five years. There was no deep investigation by the judge into the credibility of that record — just a recitation of it.
The opinion makes some of the same fundamental mistakes Congress made, such as citing to the supposed “continued filing of section 2 cases” in covered jurisdictions. Section 2 is a different provision of the Voting Rights Act, and the Supreme Court itself has said that evidence of a Section 2 violation typically has no relevance to whether or not the Section 5 legal standard has been met. More importantly, there is no evidence that more Section 2 lawsuits claiming racial discrimination in the voting context have been filed in covered states than in noncovered states.
In sum, the legislative record contained no evidence showing the kind of systematic, widespread discrimination in the covered states that existed in 1965 — and there was certainly no showing that the voting conditions differed at all between covered and noncovered states that would justify their differing treatment under federal law.
The court was also wrong to say that the “central question posed by this case . . . [is] does the 2006 legislative record contain sufficient evidence to justify Congress’s decision to subject covered jurisdictions to section 5 preclearance for another twenty-five years?” The real question before Judge Bates was whether the record showed that there was intentional discrimination in the covered jurisdictions (compared to noncovered jurisdictions) that can be addressed only by imposing a remedy: (a) even where there has been no actual, intentional racial discrimination (which is all Congress has authority to ban), but only a disproportionate racial “effect,” (b) that subjects state and local jurisdictions to the very intrusive “mother-may-I” preclearance process, which is an extraordinary intrusion into state sovereignty at odds with the federalist structure of the Constitution, and (c) that will require, as a practical matter, that local governments frequently engage in actual disparate treatment — that is, politically correct racial segregation in drawing voting districts during the redistricting process.
Indeed, it can be argued that this legislation should be held to strict scrutiny or something very like it given the intentional discrimination that it requires of local governments. This is an issue that the Supreme Court will have a hard time avoiding when these cases come before it. One hopes that this time the Court will toss out an antiquated statute that a timid Congress was unwilling to scrap in 2006, decades after its legal justification (and its constitutionality) had expired.