Bench Memos

Two Points on Shelby County v. Holder

Much is being written about Shelby County v. Holder, the case challenging the constitutionality of Section 5 of the Voting Rights Act that will be argued before the Supreme Court on February 27. We’d like to make two points here. The first — about the amount of deference that the Court owes to Congress in this case — is in rebuttal to a claim to which the defenders of the statute have devoted much of their ink; the second — about Section 5’s “effects” test — has gotten much less ink, but is important because this problem with the statute is as serious as its federalism defects.

Why the Court Owes Congress Only Limited Deference

Most of the briefs on both sides address the federalism problems raised by Section 5 — the extraordinary intrusiveness of its preclearance requirement and the fact that some states are covered and others aren’t — and whether the actual facts support the continued need for this provision. So a key question is, how much deference is owed to Congress’s fact-finding by the Court?

The Court should bear in mind an ugly and unspoken truth here: In 2006, Congress did not collect data and then make a disinterested determination that Section 5 ought to be reauthorized yet again. Rather, it early on made a purely political determination that Section 5 ought to be reauthorized yet again, and then relied on its staff, working with the civil-rights establishment, to compile (concoct?) a record to justify that determination. Republicans and Democrats alike knew that anyone who voted against reauthorization would be deemed racist, and knew that amending or updating Section 5 would lead to politically intractable problems, so they hurriedly reauthorized Section 5 to get it off the table prior to the 2006 elections (the reauthorization was not actually due until the following year).

Some have claimed that the 14th and 15th Amendments were intended to give Congress essentially unreviewable authority to pass legislation in this area, but there’s no textual or historical support for that claim, and those claiming this cannot really mean it.

Suppose, for example, that Congress passed legislation that said only blacks could vote (or suppose, for that matter, that it passed legislation that said only whites could vote); or that every black person could have two votes (or for that matter, every white person could have two votes); or that African Americans could be elected to the House of Representatives when they were only 15 years old, and to the Senate when they were only 20 years old; or that states with an African-American population of at least 20 percent were allowed to have three senators rather than two; etc. No judicial review of any of that?

The 15th Amendment says that legislation passed by Congress to enforce the Amendment is to be ‘‘appropriate.’’ There is nothing in the text to suggest that Congress intended to insulate such legislation from judicial review to make sure it is indeed “appropriate.” This same language, by the way, is used in a number of other constitutional amendments.

What about the argument that the Court cannot legitimately conclude that Section 5 is no longer constitutional due to changes in the facts, because, again, such fact-finding is up to Congress? But courts scrutinize facts all the time, and changes in factual circumstances may mean that what once met an unchanging constitutional standard no longer does. For example, if a policeman asks a court for a search warrant and produces no evidence, he won’t get it; if he produces good evidence, he will; and, indeed, what the court deems sufficient evidence on one day might be insufficient on another if other circumstances have changed. That’s hardly judicial activism. Likewise, as the evidence of severe discrimination peculiar to the South diminishes, so will the defensibility of Section 5 before the courts. That’s not judicial activism either.

So, in reauthorizing Section 5 in 2006, Congress exceeded its constitutional authority. Striking it down would honor the Constitution’s text. Indeed, upholding it would mean ignoring constitutional text and would thus be true judicial activism.

Finally, as discussed in the next section, Section 5 uses racial classifications and deliberately encourages race-based decision-making. Such statutes — far from being deferentially reviewed — are typically and correctly subjected to strict scrutiny by courts. Put another way: The “effects” test not only exceeds Congress’s authority, it is independently violative of the Constitution.

The “Effects” Test Is As Bad As the Statute’s Federalism Problems

Section 5 bars changes in voting-related policies not only when they have a discriminatory purpose but also when they have a discriminatory “effect.” So, for example, a voter-ID requirement can be blocked even if it is nondiscriminatory in its terms, application, and intent — so long as a federal bureaucrat finds it might be more likely statistically that members of one racial group versus another will not have the needed identification.

There is no evidence that, in 2013, you need an effects test in order to stop intentional discrimination.

What’s more, as a result of the “effects” test, the principal use of Section 5 is not to stop discrimination and not to challenge anything remotely relevant to people going to the voting booth. Rather, the principal use that federal civil-rights officials now make of Section 5 is to require racially gerrymandered and racially segregated voting districts. The purported reason is that racial minorities are entitled to have a proportionate number of districts carved out in which they are the majority, and that denying them this has a dilutive “effect.”

As we discuss in our brief, of the 67 Section 5 objections filed since 2000, 39 have centered on such redistricting issues. (Note also, by the way, that, in the last full year before Section 5 was reauthorized, there were 4734 submissions made, meaning that the percent of submissions not receiving a rejection letter was 0.002 percent — a lot of intrusive oversight for very little actual objectionable activity, even by the Justice Department’s own standards.)

Racial gerrymandering and segregation are ugly per se, but the side effects aren’t pretty either. Section 5 now guarantees districts that are less competitive and more polarized, not only racially but ideologically. It insulates Republican candidates and incumbents from minority voters and from issues of particular interest to them. Conversely, the insulation of minority candidates and incumbents from white voters makes it less likely that those politicians eventually will be elected to statewide positions. Section 5 encourages racial balkanization and identity politics.

As Chief Justice John Roberts wrote in a 2006 voting-rights case involving redistricting in Texas, “It is a sordid business, this divvying us up by race.” Not only sordid but bizarre, since the Voting Rights Act, one of the crown jewels of the civil-rights movement, is now being used to segregate voters by skin color.

While there is disagreement among the two sides’ briefs on Section 5’s federalism problems and the data related to them, no one does — and no one could — dispute the fact that the statute’s use of an “effects” test clearly makes illegal things that are not violations of the Constitution, which in turn creates major problems for the claim that the statute is an appropriate exercise of Congress’s authority to enforce the Constitution. What’s more, none of the evidence that the other side cites to support continued coverage of certain states has any bearing on why there has to be an effects test in order to prohibit intentional discrimination there — which, again, is all that Congress can legitimately be trying to forestall.

In addition to encouraging rather than discouraging race-based decision-making, the other inevitable consequence of all disparate-impact laws is the facilitation of attacks on perfectly legitimate practices. We can see that with Section 5 in particular, notably in its use by the Justice Department to block voter ID laws.

Voter ID laws are controversial, to be sure, but they have been adopted in uncovered as well as covered states (and upheld by the Supreme Court, by the way), and it makes no sense for the Justice Department to be able to challenge the former only if it can prove discriminatory intent, while in the latter DOJ prevails unless the state can prove not only a lack of discriminatory intent but also no disproportionate effect. Moreover, the voter-ID laws pointed to were passed quite recently, and it is hard to see how information that was not before Congress in 2006 can be relevant to whether Congress had in 2006 a factual basis for reauthorizing Section 5.

There’s one last problem with Section 5’s effects provision. Typically when the disparate-impact approach is used, there is some opportunity for a defendant to justify the challenged practice even if it does have a disparate impact. Thus, for example, Title VII of the 1964 Civil Rights Act was amended in 1991 to spell out that an employer won’t be held liable if “the challenged practice is job related for the position in question and consistent with business necessity.”

But Section 5 contains no such provision, which means either that there is no rebuttal opportunity or that Congress just punted the issue — either answer further undermines Section 5’s constitutionality. Suppose, for example, a voter-ID law is desperately necessary to prevent rampant voter fraud, but does have a disparate effect because the fraud is more likely to help black-preferred candidates. Either the law is barred by Section 5, or it can be upheld only by a court finding a rebuttal opportunity in a statute where none is written. (The Court, by the way, in 1991′s Houston Lawyers’ Association v. Attorney General of Texas, recognized a rebuttal opportunity under the “results” test of Section 2 of the Voting Rights Act, but that provision provides a statutory basis for such an opportunity.)

In sum, the Court is being asked to uphold Congress’s apparent determination that an “appropriate” way to fight the remaining intentional racial discrimination in voting in the United States is with preclearance under an effects test in some jurisdictions defined by dubious and old data – and, moreover, where that effects test has an undefined rebuttal burden.


The Left is crying that the Supreme Court of Chief Justice Roberts is poised to “turn back the clock” on civil rights: It already has heard a case this term that calls into question the use of racial preferences in university admissions, and now it will be hearing another case that calls into question a statute that empowers federal bureaucrats to insist on a politically correct number of “majority minority” districts.

Listen to that and then think about how far from the ideals of the civil-rights movement the Left’s definition of civil rights has led us. Universities must be able to discriminate against students on the basis of skin color, and voters must be required to vote only among those of their own kind.

Much was made of the fact that the Court granted review in Shelby County just three days after President Obama’s reelection in which he received overwhelming support from racial and ethnic minority groups — as if the Court were striking back at the electoral success of those groups. But actually the changing, increasingly multiracial and multiethnic face of America is precisely what makes Section 5’s divisive, race-driven policies less and less tenable.

So, if the Court strikes down Section 5, it will not be overstepping its authority. What’s more, it not only be vindicating principles of federalism, it will be pulling the plug on a statute that now does more harm than good for race relations and the principle of racial nondiscrimination.

— Roger Clegg is president of the Center for Equal Opportunity (CEO). Joshua P. Thompson is an attorney with Pacific Legal Foundation (PLF). CEO joined an amicus brief filed by PLF, urging the Supreme Court to strike down Section 5 in the Shelby County case.

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