How the Voting Rights Act Was Gutted and Why It Should Stay that Way

The word that liberals are assigned to use when writing about what the Supreme Court did to the Voting Rights Act of 1965 last term in Shelby County, Alabama v. Holder, 133 S. Ct. 2612 (2013), is “gut.” The Supreme Court “gutted” the Voting Rights Act, countless editorials, blogs, and articles say, while urgently pressing Congress to repair the damage. It’s not such a bad metaphor, actually, as gutting can mean removing the parts of a dead fish that are unwanted.

In the case of the Voting Rights Act, what the Court removed was Section 4(b) of the Act, an anachronistic test for the application of an extraordinarily intrusive (and theoretically temporary) provision, Section 5. Critics of Shelby County v. Holder obscure what those two sections actually say and do. If a state or political subdivision is covered by Section 5, it must obtain a declaration from the U.S. District Court for the District of Columbia or the attorney general of the United States that any change in a “voting qualification or prerequisite to voting, or standard, practice, or procedure with respect to voting” does not abridge voting rights. Without that declaration, no one “shall be denied the right to vote for failure to comply with such qualification, prerequisite, standard, practice, or procedure.” Despite its text, this provision has been interpreted to mean that any change in a covered jurisdiction’s election law has to get preclearance from the Justice Department or the U.S. District Court for the District of Columbia—including laws that draw electoral districts, which are not a “procedure with respect to voting” and do not deny anyone the right to vote for failure to comply with them. (A voter can’t comply—or not comply—with an ordinance that says councilman shall be elected at large.)

Section 5 was supposed to be a temporary, emergency provision expiring five years after the Voting Rights Act was adopted in 1965. It applied to states and political subdivisions that met two criteria set out in Section 4(b). The first was that the attorney general determined that on November 1, 1964, the jurisdiction had a “test or device” requiring a voter to prove his education, character, or morals. The second was that less than 50% of voting age citizens in the jurisdiction were registered on November 1, 1964 or less than 50% of such persons voted in the 1964 presidential election. At the time, this coverage formula was a good measure of whether blacks were being kept from voting. Southern states had been very resourceful in finding ways to do that without violating earlier civil rights laws.

Early on, these provisions were found to be within Congress’s constitutional powers. The Fifteenth Amendment says that the right of citizens to vote “shall not be abridged by the United States or by any State on account of race. . . .” Section 2 of the Fifteenth Amendment gives Congress the power to enforce the amendment “by appropriate legislation.” In 1966, the Supreme Court held that Section 5 of the Voting Rights Act, although “an uncommon exercise of congressional power,” was appropriate under the “unique circumstances” of the time, namely, pervasive defiance of voting rights that previous congressional remedies had been unable to stop. South Carolina v. Katzenbach, 383 U.S. 301, 309-10, 335 (1966). The Court found that Section 4(b)’s coverage formula “was relevant to the problem of voting discrimination” and was “rational in practice and theory.”

It did not remain rational in practice or in theory. Section 5, the eternal temporary provision, was renewed in 1970, 1975, 1982, and finally was renewed once more in 2006—until 2032! Although Congress repeatedly renewed Section 5, it never updated the coverage formula in the sense of basing it on recent conditions alone. In the first two renewals, Congress overlaid upon Section 4(b) the same tests with different years. So in 1970 jurisdictions that had a literacy test in November 1968 or less than 50% registration and turnout in the 1968 presidential election became subject to preclearance, in addition to jurisdictions already covered. In 1975, jurisdictions that had a literacy test in November 1972 and less than 50% registration or turnout in the 1972 presidential election also became subject to preclearance, in addition to jurisdictions already covered. The coverage formula was not changed when Section 5 was renewed in 1982 and 2006. All of the tests, including those based upon events long past, remained in effect.

The only way a jurisdiction entrapped by one of the tests could get out was to prove to the satisfaction of the D.C. District Court that no test or device had been used in the jurisdiction for ten years, that it had not committed any other voting rights violation, and that it had made an effort to eliminate intimidation and harassment of voters.

This “bail out” provision allowed the Supreme Court to avoid deciding whether the preclearance requirement was still appropriate in 2009. That happened after a Texas utility district filed suit in the D.C. District Court seeking a declaration that it could bail out or, in the alternative, that Section 5’s preclearance requirement was unconstitutional. On appeal, the Supreme Court held in Northwest Austin Municipal Utility District No. 1 v. Holder, 557 U.S. 193 (2009), that the utility district was eligible to bail out and, as a result, avoided deciding whether Section 5 or Section 4(b) was constitutional. But the Court had plenty to say about it nonetheless. Writing for the Court, Chief Justice Roberts cast doubt on the constitutionality of the preclearance requirement. The chief justice discussed the dramatic increases in registration and election of minorities (for which the Act deserves credit), the substantial federalism costs imposed by preclearance, and the antiquity of the coverage formula. Justice Thomas, concurring in part and dissenting in part, contended that the Court should have reached the constitutional questions and held Section 5 unconstitutional. No one wrote separately to defend Section 5. Justice Thomas wrote, “The Court quite properly alerts Congress that § 5 tests the outer boundaries of its Fifteenth Amendment enforcement authority and may not be constitutional.”

Congress ignored the warning and left Section 5’s preclearance requirement and Section 4(b)’s coverage formula unchanged. Rep. Robert Scott (Democrat of Virginia) even issued an obtuse press release boasting that the decision validated Congress’s work in establishing the continuing need for Section 5.

The issue returned to the Court four years later in a case brought by a county that was ineligible to bail out. In Shelby County v. Holder, the Court could not avoid the constitutional issues, or not all of them.

The Court wasn’t ready to declare Section 5 preclearance unconstitutional (although Justice Thomas was), but it did declare Section 4(b)’s coverage formula for preclearance unconstitutional. Again Chief Justice Roberts wrote the majority opinion. He said that preclearance is extraordinarily intrusive into the reserved powers of the states under the Tenth Amendment. It reverses the burden of proof, requiring some of the states to come, hat in hand, before the civil rights division of the Justice Department or a distant court to prove that a new law does not violate the Act and to beg for permission to implement it. Only some states are subject to this indignity despite the equal sovereignty of the states.

The purpose of the Fifteenth Amendment (often ignored in discussions of the Voting Rights Act) is to prevent denial of suffrage based on race. “To serve that purpose,” Chief Justice Roberts wrote, “Congress—if it is to divide the States—must identify those jurisdictions to be singled out on a basis that makes sense in the light of current conditions.” Apparently that’s the standard of review the Court used. If so, the Court side-stepped a question the lower courts debated and Northwest Austin acknowledged. The Court’s precedent had suggested that the test for whether a law was within Congress’s power under section 2 of the Fifteenth Amendment was either that the law was congruent and proportional to the constitutional violation or just that it was a rational means to enforce the Fifteenth Amendment. Foregoing the choice between the two, the Court seems to have created a special test for laws that divide the states, i.e., they must “makes sense in the light of current conditions.”

Section 4(b) failed that test miserably. The House Report acknowledged progress made in minority registration, turnout, and office holding; yet Congress reauthorized the same requirements and coverage formula as if nothing had changed. Congress compiled a voluminous record full of stories about “second-generation barriers,” that is, electoral districts that allegedly dilute minority voting strength. Those so-called barriers did not bar anyone from voting and aren’t even prohibited by the terms of the Voting Rights Act. More to the point, such barriers as there are today did not inform the design of the test. The coverage formula based upon literacy tests no longer in force and turnout in the 1964-72 presidential elections was reenacted as if out of habit.

While that’s hardly sensible policy, how it adds up to a violation of some constitutional provision or other is not exactly clear. After completing his critique of the coverage formula and relating the unheeded warning in Northwest Austin, the chief justice simply announces that Congress’s “failure to act leaves us today with no choice but to declare §4(b) unconstitutional.” We’re not told if by some measure Congress exceeded its power under the Fifteenth Amendment or the Fourteenth Amendment or if Section 4(b) violated the Tenth Amendment, which Shelby County also argued. In this respect, the opinion is as bad as the one the Court rendered the next day in United States v. Windsor, 133 S. Ct. 2675 (2013), in which Justice Kennedy follows his social and sentimental objections to the Defense of Marriage Act with “legalistic argle-bargle” abruptly leading to the conclusion that the Defense of Marriage Act violated the Fifth Amendment’s due process clause, the equal protection component of the Fifth Amendment’s due process clause or of the Fourteenth Amendment, or something like that.

The declaration of the unconstitutionality of Section 4(b) is followed by dicta that have been misinterpreted as an “invitation” to Congress to come up with a better formula. Actually, the Court said, “Congress may draft another formula based on current conditions. Such a formula is a prerequisite to a determination that exceptional conditions still exist justifying such an ‘extraordinary departure from the traditional course of relations between the States and the Federal Government.’” Shelby County, 133 S. Ct. at 2631 (quoting Presley v. Etowah County Comm’n, 502 U.S. 491, 500-501 (1992)). A new coverage formula is not a goal the Court is setting for Congress; it’s a prerequisite to deciding whether Section 5’s preclearance requirement remains constitutional even with a sensible test for its application. If Congress were to establish that prerequisite by devising a new coverage formula and then the Court were to strike down the whole preclearance edifice, the howls of the Left that the Court had played whack-a-mole with the civil rights community would be entertaining indeed.

The president has shown uncharacteristic respect for the separation of powers by refraining from enacting a new coverage formula by his own fiat. And true to form, the 113th Congress, one of the best Congresses ever (using the correct metric of fewest bills passed), hasn’t enacted anything either.

There have been proposals, though, ranging from the ridiculous to the not terrible. On the ridiculous end of the spectrum, Michael Lind in Salon and Dylan Matthews in the Washington Post‘s Wonkblog imagined that the Court would have no choice but to uphold blanket coverage of all fifty states. On the contrary, the Court’s choice would be easy: imposition of the extraordinary burdens of Section 5 on each state, regardless of whether pervasive violations of the Fifteenth Amendment or none at all occurred in the state, would not survive any constitutional standard that the Court would apply.

More seriously, Sen. Patrick Leahy (Democrat of Vermont) and Rep. Jim Sensenbrenner (Republican of Wisconsin) introduced in January a bill (S. 1945 and H.R. 3899) prescribing a coverage formula based on violations of the Voting Rights Act and low turnout in the last fifteen years. Violations resulting from a requirement that voters present a photo ID would not count. That’s a welcome concession, but Republicans should insist that the bill clarify that statutory voter ID requirements are not a violation of the Voting Rights Act at all. To its discredit, the bill also imposes on the states meddlesome reporting requirements regarding polling places, changes in election laws, registration, and election results.

In March the bill was referred to the House Subcommittee on the Constitution and Civil Justice. It was referred to the Senate Judiciary Committee in January. Neither committee has held hearings. That’s just as well. It is past time to allow Section 5 to expire, but Congress has never had the courage to let that happen. Inaction on the coverage formula is the next best thing, at least until Republicans control more than the House of Representatives. What we need now is a do-nothing Congress.