Bench Memos

Section 5 of the Voting Rights Act Is Unconstitutional

The elections may be over, but election law is in the spotlight this week as the Supreme Court hears oral arguments in the case of Shelby County v. Holder tomorrow, considering whether or not Section 5 of the Voting Rights Act is unconstitutional.

Another section of the VRA not at issue here — Section 2 — does the heavy lifting of attacking racism in voting, prohibiting laws that discriminate on the basis of race even as an unintended consequence of an otherwise-neutral law. Section 5, on the other hand, was enacted to prevent certain “covered” states and jurisdictions from inventing new and creative ways to discriminate in voting while technically steering clear of laws that might trigger Section 2. It requires that those states and jurisdictions surmount significant administrative or judicial hurdles any time they want to make a change to their voting laws, no matter how trivial. For example, if a town wants to move its polling place even a block away, change from paper to computerized ballots, change its primary date, or hire more staff to help those who need translation or assistance reading, it would need to apply for permission from the Attorney General.  

Why some jurisdictions and not others? Because those states had low voter registration and turnout, which Congress assumed was a good proxy for racially discriminatory voting laws. The catch is that the low voter turnout triggering serious burdens for these jurisdictions today is calculated as of the 1964, 1968, and 1972 elections — over 40 years ago. 

The Supreme Court has dropped hints over the years that this system raises constitutional red flags, and as recently as 2009 clearly stated that Section 5 “imposes current burdens and must be justified by current needs” if it wants to take the disfavored step of treating certain states differently than others.

But Congress has been unwilling to revisit the section, whether because it views it as politically dangerous or simply has more important things to do first. The VRA was passed in 1965 and would have expired in 1970, but Congress has repeatedly reauthorized it, first for five years, then seven years, and finally for 25 years at a throw. If the 1965 Congress was overly sanguine in assuming that voting discrimination would be largely under control by 1970, the 2006 Congress makes Eeyore look like a cockeyed optimist. While prohibitions against racist voting laws are already in effect in all 50 states, it determined that the bad-actor jurisdictions of a generation ago still need extra supervision through 2031.

As usual, when Congress neglects its duty to comply with the Constitution, it ends up punting to the Supreme Court.

I expect to see a decisive majority of the Court deciding this case in favor of Shelby County. The Court had alluded to constitutional problems repeatedly immediately before the most recent reauthorization of Section 5, but their concerns fell on deaf ears. And the most recent time the Court looked at this provision it gave a clear and unanimous warning to Congress: Placing burdensome regulations on some states and not others is only permissible if there is current evidence that shows those regulations are related to the targeted problem of racial discrimination in voting.

If Section 5 of the Voting Rights Act does not survive this case, it will be because Congress couldn’t be bothered to heed the Court’s repeated warnings to justify its unequal treatment of different states. As Congress itself has acknowledged, we have come a long way since 1965, and Section 2’s prohibitions on discriminatory voting laws that apply equally to all states are doing a great job of fighting these practices. There is no evidence justifying separate treatment of certain states based on their voting behavior over 40 years ago rather than what is happening today.

(For the record: I filed an amicus brief on behalf of the Judicial Education Project in support of Shelby County, Alabama, the petitioners challenging Section 5 in this case.)


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