Shelby County v. Holder: The Future of Section 5 of the Voting Rights Act of 1965

An Interview with Ilya Shapiro of the Cato Institute

by Ryan P. Mulvey:

Shelby County v. Holder is one of the more interesting, even controversial, cases at the Supreme Court this term.  It concerns the constitutionality of portions of the Voting Rights Act of 1965, an historic piece of civil rights legislation that has helped to reorder American society following the lamentable years of Jim Crow.  The Act itself represents an heroic effort to remedy the long-lasting effects of slavery and to fulfill the promises of Reconstruction.

Yet, much has changed since the end of Jim Crow, the dismantling of segregation, and the racially charged era of the 1960s and 70s.  Undoubtedly, racial discrimination is still a reality in many sectors of American society, but the obvious and intentional discrimination by the State in politically disenfranchising minorities is hardly commonplace.  There is a strong argument, then, that the circumstances originally justifying the unprecedented reach of the Voting Rights Act can no longer be used to defend the continued application of certain portions of the Act that infringe on traditional areas of state sovereignty, deny equal protection, and upset the Founders’ conception of federalism.

The arguments either way are complicated.  And given the racial dimension, public discourse about the Act’s continued constitutionality is hardly honest and open.  Race, among other things, impassions people and can blind us to the legal technicalities and nuances that mark the Court’s equal protection jurisprudence.  At “The Bell Towers,” we strive to present honest commentary that aids our readers in forming their own opinions on the legal and political issues of the day.  The following interview with Ilya Shapiro of the Cato Institute represents an effort to provide, you, the reader, with the basic fact and issues of Shelby County v. Holder, and to provide some hard-biting legal analysis from the conservative-libertarian perspective.

Thank you for joining me, Mr. Shapiro.  To start, could you give us an idea of what Shelby is about?  What are the key legal provisions and issues at play?

Shelby County v. Holder concerns Section 5 (and Section 4(b), which provides the formula for determining which jurisdictions are subject to Section 5), of the Voting Rights Act (VRA).  The VRA was, of course, a seminal piece of civil rights legislation enacted in 1965.  Congress intended it to remedy the widespread political disenfranchisement of Black Americans, especially in the Deep South, which was still suffering the effects of the “Jim Crow” era.

What Congress did in drafting Sec. 5 was rather extraordinary.  Under Sec. 2 of the VRA, racial discrimination in voting was prohibited, and provisions were drafted to allow for legal claims to remedy such discriminatory practices.  But Sec. 5 went far beyond the case-by-case adjudication contemplated in Sec. 2.  Rather than simply relying on regular lawsuits to end the disenfranchisement of blacks, Congress decided to require certain jurisdictions to “pre-clear” any of their changes in election law with the Department of Justice, or a special federal court in Washington, D.C.  This effectively created a presumption that any change in election regulation in these “covered jurisdictions” was illegal, unless established otherwise.

Congress justified this move—and the Court, in the 1966 case of South Carolina v. Katzenbach, upheld sec. 5—because of the exceptional circumstances on the ground.  That is, Jim Crow, with all its devices, such as literacy tests and poll taxes, had created systemic disenfranchisement that could not otherwise be remedied through normal litigation.  “Covered” states and localities were effectively put under federal “receivership.”  This was an unusual and extraordinary intrusion on federalism, but it worked.  Over the course of the past four decades, voter registration and turn-out rates in covered jurisdictions have normalized.  The disparity between blacks and whites has effectively disappeared.  As Chief Justice Roberts pointed out during oral argument a couple of weeks ago, Sec. 5 has been so successful that Mississippi, a covered jurisdiction, has the least black-white disparity in voter activity, while Massachusetts has the worst.

In the end, this case is about challenging the continued application of Sec. 5.  The covered jurisdictions no longer need to be subject to extraordinary federal oversight.  The “exceptional conditions” that originally justified Sec. 5 no longer exist.  And remember that we are not just talking about the Old Confederacy.  Sec. 5 also covers places like Arizona, Alaska, and other counties and towns in random places like New York City, New Hampshire, and South Dakota.  These jurisdictions are treated differently for purposes of election law based on a coverage formula—Sec. 4(b)—that has not been updated since the early 70s.  It is outmoded and no longer has a rational relationship to whatever problem Congress might have identified when it last renewed the VRA in 2006.

Few people would dispute the constitutional authority of the federal government in eliminating racial discrimination, at least as far as state action is concerned, in limiting access to the polls.  But Sec. 5 is such a disruption of our traditional federal structure.  Justice Black expressed this concern in Katzenbach.  How could even extraordinary circumstances justify sec. 5?

Sec. 5 is absolutely an extraordinary disruption.  In Katzenbach, which dealt explicitly with Sec. 5, the Court said, again, that the unusual circumstances on the ground—that is, the serious problems with Jim Crow—meant that discrete remedies such as case-by-case adjudication and normal legislative options—were simply not going to work.  The federal intrusion into core areas of traditional state sovereignty, then, was necessary.

But Sec. 5 was supposed to be a temporary emergency measure.  Yet it has been renewed four times.  And other parts of the VRA have even been strengthened.  It just seems unusual that forty years later, Congress would not have felt the need to update the Sec. 4(b) coverage formula or to seriously consider whether enough time has passed since the death of Jim Crow to consider eliminating Sec. 5.

Why has Congress not updated the Sec. 4(b) coverage formula?

Before the last renewal of Sec. 5, and when Congress made Sec. 2 permanent in 1982, there were still problems with racial discrimination and black disenfranchisement in different parts of the country.  You could have argued that Sec. 5 was no longer necessary then, but based on Congress’s findings, there was still enough happening that it was at least a debatable point.

In 2006, when Congress last renewed Sec. 5, it held hours of hearing and generated a record of more than 17,000 pages.  The committee reports that came out admitted that so-called “first-generation barriers” to voting—literacy tests, poll taxes, and all those sorts of things that represent an affirmative denial of the vote—were gone.  Instead, Congress expressed concerned with “secondary” barriers, which Sec.5 supporters claim are things like uneven early voting hours, voter ID requirements, etc.  Of course, the Court has previously approved these kinds of electoral reforms, and it is not as if they have been adopted disproportionately in Sec. 5 jurisdictions.

Ultimately, I think Congress did not update the coverage formula, or even seriously consider eliminating sec. 5, because race is such a sensitive and tricky issue.

Can you expound on the race issue and why it makes meaningful reform difficult?

It is difficult for any politician to take a position against any part of the VRA because the negative headlines themselves, as they will if the Supreme Court strikes down Sec.5.  Imagine: Congressman so-and-so “Votes Against Voting Rights,” or “Votes Against Black Voting.”  Because of the sensitivity of the race issue, it is not easy to get to the heart of the technicalities of what was supposed to be an emergency, temporary provision.

What ends up being debated is something other than the important legal issues?

Yes, the debate becomes too simplified.  Everything ends up boiling down to whether there are still problems with race and our election system.  If the answer is “yes,” then the presumption is that we need to retain all parts of the VRA.  It is frustrating for those of us who care about constitutional structure and the proper relationship between the judiciary, the legislature, and state governments.

You previously mentioned voter ID reforms.  There was a lot of the controversy leading up to the last presidential election over voter ID laws, and other related reforms.  Most legal challenges have been based on charges of racial discrimination.  And there seems to be a general uptick in election law litigation.  Has the VRA been the basis for this litigation?  Has there been “revival” in areas not contemplated by the authors of VRA in 1965?

The kinds of suits being filed now are different, but the litigation is not happening in covered jurisdictions any more than it is elsewhere.  So we are not necessarily dealing with an increase in VRA-based litigation.  For example, in 2008, the Court approved Indiana’s voter ID law in an opinion by Justice Stevens.  Other states—both those that are covered by Sec. 5 and those that are not—have passed similar sorts of reforms.

Under President Obama, the Department of Justice has been objecting to these laws generally, but also to the pre-clearance of such reforms in covered jurisdictions.  South Carolina and Texas are two examples.  The administration lost a big case in South Carolina.  Texas tweaked its proposed reforms just a bit to pass clearance.  The DOJ has lost lawsuits in Pennsylvania, Ohio, and other non-covered jurisdictions where it actually had to sue the state rather than just deny pre-clearance.

The bottom line is, when a state wants to pass voter ID reform, there is an easy formula to follow.  You do not make it burdensome to get an ID—you make it free and easy to get to the relevant office.  There are ways to legitimately address concerns about voter fraud.  There is a right way to get the reform passed.  Ultimately, whether it is voter ID or changes to early voting regimes, we need to distinguish between issues of general election administrability and whether there is a conscious effort to deny or abridge the right to vote on the basis of race, or an attempt to dilute the political power of a minority group.

Edward Blum, director of the Project on Fair Representation, one of the legal foundations behind the Shelby challenge, has said that the VRA is “stuck in a Jim Crow-era time warp.”  You have already discussed the sensitivity of the race issue.  The Court, in Northwest Austin Municipal Utility District No. One v. Holder (“NAMUDNO”) (2009), seemed to agree that we have really moved past the “Jim Crow-era.”  I take it you concur, but are we also in a “post-racial” society, as someone like Justice Thomas might like us to believe?

Well, those are two different questions.  I do not think that anyone would deny that we still have racial discrimination in this country.  But the question of racial discrimination is distinct from whether Jim Crow is over and the conditions on the ground still justify the equal protection and federalism violations of Sec. 5.

To say that Jim Crow is not over is to insult the heroes of the Civil Rights era.  Clearly, we no longer have politicians like Orval Faubus, who actively fought the extension of civil rights to blacks.  We no longer have the massive white resistance to desegregation.  We just do not have the sort of things that you and I were lucky not to have to live through.  There was scary stuff going on fifty years ago in this country.  Clearly, and thankfully, this is no longer the case, in significant part because of the VRA.  It really has been one of the most successful pieces of federal legislation in American history.

As Justice Thomas said in 2009, recognizing that things have changed is not an admission of defeat, but a celebration of victory.  We recognize that problems remain, but those which originally justified the implementation of Sec. 5 are no longer there.  Sec. 2 will still be with us anyway, and it is more than adequate to remedy remaining instances of racial discrimination.  We deny the march of history, and insult the heroes of the Civil rights era, when we say that things have not changed.

It seems to me that one of the stronger arguments for the petitioner, which the Cato Institute has made in its amicus brief, is that there is a tension between the continued co-existence of Secs. 2 and 5.  This tension creates “bad law.”  You have explained that sec. 5 was meant to be “temporary.”  Could you discuss why its continued existence is undesirable, notwithstanding constitutional objections?

Sec. 2 is meant to prevent any changes in election law that deny or abridge the right to vote based on race, and certain other categories like linguistic minorities.  Sec. 5 is meant to prevent retrogression, that is, a lessening of a minority group’s political power resulting from government action.  Sec. 2 has been interpreted as requiring that minorities continue to be able to elect candidates of their choice.  Unfortunately, this often means a candidate of the same race.  Sec. 5, on the other hand, has been used to require the drawing of districts in certain ways that maintain majority/minority race districts.

The standards that courts are supposed to apply under these different sections have been muddled.  They are confusing.  And this is particularly the case when a disparate impact standard is adopted.  There is an unavoidable conflict with the 14th and 15th Amendments’ requirements that government treat everyone equally, without regard to race.  It has simply become too difficulty for states, particularly those covered by Sec. 5, to change their voting laws. This, in turn, makes the general administration of elections burdensome.  It really impedes reform.

The petitioners are also making 10th Amendment and Article IV claims.  We do not hear serious arguments based on these provisions too frequently.  And the Court does not often pay them much attention.  The 10th Amendment, like the 9th Amendment, has been dismissed as a “mere truism.”  What do you make of these arguments grounded in the theory of delegated powers and the assurance of a “republican form of government”?

The 10th Amendment is effectively redundant of the general structure of the Constitution.  Whatever powers Congress has not been explicitly granted are reserved to the States.  Consider the Obamacare case.  There, the 10th Amendment claim was that if Congress had exceeded its enumerated powers, then it had not just violated, say, the Commerce Clause, but had also independently exceeded its constitutional authority.

In Shelby, we are dealing with the 15th Amendment, which authorizes Congress to take action to remedy racial discrimination in voting.  The question is whether Congress has exceeded its express authority, granted under the 15th Amendment, by renewing the VRA and continuing to implement Sec. 5.  If the Court finds Congress to have exceeded that delegated power, that is, if the facts on the ground no longer justify the continued application of Sec. 5, then there is a 10th Amendment violation.  If not, then there is not a violation.  The 10th Amendment claim is a different articulation of the other arguments being made.  It helps people to understand the importance of constitutional structure, but really is not a unique argument.

What, then, is the petitioner’s strongest argument?

In short, keeping in mind the Court’s treatment of the VRA in Katzenbach, the exceptional conditions that originally justified Sec. 5 no longer exist.  Thus, sec. 5’s extraordinary intrusion on federalism and violation of equal protection is no longer constitutionally permissible.

There are many different minorities in this country.  Many people believe the Constitution gives the federal government the authority, or perhaps even imposes an obligation, to protect all minorities.  While admitting the great success we have had in eliminating discrimination against blacks, and remedying widespread disenfranchisement, could we not use Sec. 5 with non-black minorities?

Absolutely.  But sec. 5 is only justified if sec. 2 is not enough to protect those other minorities.  If private parties, or the federal government, have the power, as they do, to file lawsuits and seek injunctions or temporary restraining orders against discriminatory election reforms, then further extraordinary remedies are not necessary.  I think that Sec. 2 is sufficient to address whatever problems relating to voting that any minorities face.

When Chief Justice Roberts wrote the Obamacare decision, there was a lot of talk about “judicial statesmanship” and “real politics.”  Michael Pitts, who teaches at Indiana State University, claims that the “atmospherics” in this case militate against the Court siding with Shelby County, notwithstanding the merit of their argument.  Professor Pitts bases this claim on the fact that this case is brought by a covered county in a covered state, both of which have a notorious history of racism and systematic discrimination.  Would it not be politically disastrous for the Court’s institutional integrity to knock down Sec. 5 in this case, given the factual circumstances?  Might we expect another Roberts-type opinion?

We could.  But this sort of argument was stronger when the Court was deciding whether to take the case in the first place.  The Court really did not need to grant cert.  There is no circuit split here.  The conventional wisdom was—and still is—that political considerations would play out such that, if the Court did take the case, it was going to strike down sec. 5.  We will have to wait and see what happens.  In the NAMUDNO case, which you mentioned earlier, the Court tiptoed to the edge of striking down Sec. 5, but it backed off.

Based on how oral argument went, Chief Justice Roberts seems to be strongly against the government, as does Justice Kennedy.  It seems likely that Shelby County will win, but you are right, the atmospherics here . . . and the potential headlines from the news media . . . might not be pretty.  Hopefully, Roberts has learned his lesson in a certain sense. He actually made the Court less popular with his Obamacare decision because few people like the individual mandate.  This case, however, involves a technical argument.  The Court is only dealing with a portion of the VRA, and there are a lot of complicated moving parts.

Obviously, you expect a win for Shelby County.  If this is not the outcome, and the Court upholds Sec. 5, what is the next move for those sympathetic to Shelby County’s cause?

Well, I would not try a new legal challenge for another 5-10 years, because you would probably get the same result.  Of course, even when the time is right for another challenge, you should consider the composition of the Court.  Given the lead-up to this case, though, I am pretty confident that Shelby County will win.  In NAMUDNO, the Court expressed serious doubts about the constitutionality of Sec. 5.  The Justices asked Congress to fix it, and Congress did nothing.  The Court did not have to take this case, and it would be odd indeed if they sided with the government.

Are there any other possible outcomes besides a straight-out “win” or “loss”?

There is a slightly narrower decision that the Court could reach.  Instead of throwing out Sec. 5, the Court could just throw out Sec. 4(b), the coverage formula based on data collected in the late 60s and early 70s.  We could see an opinion where the Court admits that it cannot tell Congress whether conditions on the ground still justify applying Sec. 5, but clearly, whatever those problems might be, they are not correlated to the areas that are currently covered.

This kind of decision would allow Congress another crack at coming up with a coverage formula.  They would have to put something together that really goes after systemic discrimination.  Given the current polarization in Congress, though, it seems unlikely that they would take up this issue in the near future.

You seem especially confident that Shelby County will win, but you were also confident the government would lose the Obamacare case.  It turned out that way.

I am more confident than I was after the Obamacare argument that the challenge will succeed.  Luckily, those of us who watch the Court do not get paid based on how well we can predict the Court’s decisions.  Otherwise, we would all be out of our jobs.  The Court will do what the Court will do.  But based on the law and how oral argument went, I just cannot imagine the government prevailing.  If it does win, it will be due to non-legal factors rather than a fair reading of the law.

Thank you for your time, Mr. Shapiro.  Do you have any final thoughts that you would like to share?

This case is not about “voting rights.”  And it is not about “racial discrimination.”  Certainly, those things play a part in what the Court is considering, but the heart of the issue is much simpler.  Can this extraordinary piece of legislation, this historic provision, still be constitutionally justified?  The petitioners say “no,” and I say “no,” because, thankfully, America has changed.  The American South has changed.  We no longer have Jim Crow, with all its evils.  This is, of course, a good thing.  We need to get past this and start focusing on the problems that still exist on the ground, rather than continuing to tilt at windmills.

Ilya Shapiro is a senior fellow in constitutional studies at the Cato Institute and editor-in-chief of the Cato Supreme Court Review.  Shapiro holds an A.B. from Princeton University, an M.Sc. from the London School of Economics, and a J.D. from the University of Chicago School of Law.

Ryan P. Mulvey is a graduate student at Boston University where he is pursuing a dual-degree in Law and Philosophy (JD/MA).  He is expected to graduate in 2013, and may be contacted at rpmulvey@bu.edu.