By the end of June, the Supreme Court will hand down decisions in the remaining cases of its October 2012 term, including one of the most anticipated decisions involving the Voting Rights Act, Shelby County v. Holder. In a recent article, Ramesh Ponnuru posited that the Court should defer to Congress and uphold Section 5 of the Voting Rights Act. With all respect to Ramesh (with whom we usually agree) we could not disagree more.
Under Ramesh’s view of deference, if Congress made a legislative finding that the financial condition of the federal government (with its enormous deficit and debt) made it vital for the government to no longer provide “just compensation” when it seized private property, then the Court should defer to that finding and allow such a violation of the Fifth Amendment.
While the Court certainly defers to Congress in many instances, the Court should not defer to unconstitutional acts that are beyond the scope of Congress’s enumerated powers. For example, in City of Boerne v. Flores, the Court struck down the Religious Freedom Restoration Act of 1993 (RFFA) as applied to the states. Congress passed the law pursuant to the Fourteenth Amendment, which grants Congress the remedial “power to enforce, by appropriate legislation” the guarantees of due process and equal protection.
But under the Fourteenth Amendment, an individual challenging a governmental act for infringing his or her free exercise would need proof of deliberate, intentional discrimination. Under RFRA, the focus turned to the effect of governmental activity. Even if there was no intentional discrimination and state action was completely neutral, RFRA required states to demonstrate a compelling interest and that the action was the least restrictive means of fulfilling that interest in order for the law or action to stand. In striking down RFRA as applied to the states, the Court held that Congress’s enforcement power is not unlimited, noting that “broad as the power of Congress is under the Enforcement Clause of the Fourteenth Amendment, [this law] contradicts vital principles necessary to maintain separation of powers and the federal balance.”
The same is true of Section 5 of the Voting Rights Act. Passed in 1965 as a temporary, five-year emergency provision, Section 5 is an extraordinary intrusion into state sovereignty. It requires covered jurisdictions to come hat in hand to the Justice Department or a federal court in Washington, D.C., before enacting any changes to their voting laws. It is the equivalent of federal receivership. In an early challenge to Section 5, the Supreme Court upheld this law only because it was justified by the systematic and rampant discrimination present at that time in many southern states. Section 5 also prohibits conduct based on its effect, not just intentional discrimination.
Congress reauthorized Section 5 in 1970, 1975, 1982, and again in 2006, extending its life for another twenty-five years using voter turnout data based on the 1964, 1968, and 1972 presidential elections. Had Congress looked at more recent election data, it would have found that the jurisdictions currently covered by Section 5 have substantially higher minority turnout rates than many noncovered jurisdictions. The turnout disparity that Section 5 was intended to correct disappeared long ago, and according to a recent Census Bureau report, in many covered states, the turnout of black voters exceeds that of whites.
The Supreme Court has deferred to Congress on this issue before. Just three years ago in Northwest Austin Municipal Utility District No. One v. Holder, the Court sidestepped a constitutional challenge to Section 5 and ruled on narrower, statutory grounds. But the Court expressed concerns about Section 5’s continued constitutionality, stating that its burdens “must be justified by current needs.” And there is no current need — the discrimination that justified this unprecedented federal law in 1965 does not exist today. There is no constitutional justification for continuing to treat states differently based on 40-year old data and nothing in the superficial legislative record amassed by Congress in 2006 changed that.
Now is not the time for more deference. Alexander Hamilton wrote in Federalist No. 78 that the Court is “the bulwark of a limited constitution against legislative encroachments.” Ramesh would have the Court abandon that role.
Congress has encroached on the principles of federalism and state sovereignty long enough and chose not to address the constitutional infirmities in Section 5, despite the Court’s warning. Thus, the Court no longer owes deference to Congress and will properly exercise its constitutional role if it strikes down Section 5 as unconstitutional.