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January 01, 2012

What is Next for Section 5 of the Voting Rights Act?

by Robert A. Kengle and Marcia Johnson-Blanco

The Amici States urge this Court to uphold the constitutionality of the 2006 reauthorization of the Voting Rights Act. Any assertion that Section 5 constitutes an undue intrusion on state sovereignty does not withstand scrutiny. Section 5 does not place an onerous burden on States. States have been able to comply with Section 5 without undue costs or expense. More importantly, Section 5 has produced substantial benefits within the Amici States and our Nation as a whole.

Brief for the State of Arizona and five other states as amici curiae, March 2009

There is no justifiable reason for infringing on Arizona’s sovereignty and imposing the extreme burden of preclearance procedures on Arizona when Arizona does not engage in discriminatory practices against Hispanic voters.

First Amended Complaint for Declaratory and Injunctive Relief, State of Arizona v. Eric Holder, September 2011

As the Supreme Court’s new term takes shape, several pending cases will provide the Court with an opportunity to rule on the constitutionality of Congress’s 2006 reauthorization of section 5 of the Voting Rights Act (VRA) of 1965, 42 U.S.C. 1973c. If and when the Court reaches that constitutional question, the decision will write a new chapter in the history of our nation’s effort to overcome racial voting discrimination and to enforce the constitutional protections for which many risked and gave their lives.

Section 5 frequently is called one of the most effective civil rights laws ever passed by Congress, and it has been crucial to the historic political empowerment of minority voters in the South and Southwest. Since it was enacted in 1965, section 5 has led to thousands of racially discriminatory voting changes being blocked before they could be put into practice. The opening quotations, from dueling federal court pleadings filed by the State of Arizona, are examples of how section 5 has been cast as hero and villain in the unprecedented number of constitutional challenges that have been launched against section 5 since its 2006 reauthorization. Why now? What is at stake?

The answer begins with the fact that section 5 operates differently than traditional anti-discrimination litigation under the Fourteenth or Fifteenth Amendment, or under section 2 of the VRA, in which the plaintiff bears the burden of proof and the jurisdiction is free to use the challenged procedure unless and until it is halted by court order. In such cases, it may take years of complex and expensive litigation before the plaintiff obtains relief.

Section 5 requires that all changes in practices and procedures affecting voting in certain “covered” jurisdictions undergo federal review prior to their implementation. The federal review occurs before a three-judge panel in the U.S. District Court for the District of Columbia or, alternatively, via an administrative submission to the U.S. attorney general. The district court or the DOJ must deny “preclearance” if the covered jurisdiction fails to show that change in the existing practice lacks a discriminatory purpose and effect. A jurisdiction is always free to seek preclearance from the district court regardless of whether the DOJ has denied preclearance or even reviewed the change at all. However, the jurisdiction is subject to what amounts to an automatic injunction if it attempts to use a voting change without preclearance. Thus, the latitude generally given to states to establish their own voting practices unless a violation of federal law has been proven is diminished where section 5 coverage is in place, leading to what the Supreme Court has called the “substantial federalism costs” of section 5.

The covered jurisdictions include all of Alabama, Alaska, Arizona, Georgia, Louisiana, Mississippi, South Carolina, Texas, and Virginia; California, Florida, North Carolina, and New York have substantial populations covered in multiple counties; and Michigan, New Hampshire, and South Dakota each has relatively small populations covered. Noncovered jurisdictions found by federal courts to have engaged in unconstitutional racial discrimination may be “bailed in” under section 3(c) of the VRA; covered jurisdictions that satisfy the standards in section 4(a) of the VRA may be “bailed out” by federal court order.

Thousands of voting changes are submitted for preclearance each year and the vast majority of changes have always been precleared. Although there were hundreds of objections after 1982, in recent years the number of objections has been low by historical standards—viewed by some as evidence that jurisdictions are effectively deterred from adopting discriminatory voting changes, and by others as proof of our arrival at a “post-racial society.”

Why Section 5?

In March 1965, the nearly hundred-year effort by Southern states to evade and undermine the post–Civil War enfranchisement of racial minorities was being challenged as never before, and the nation watched in horror as African-American protesters were set upon by state troopers and brutally beaten as they attempted to begin a march from Selma to Montgomery, Alabama, to protest the denial of their voting rights. President Lyndon Johnson went before the nation and, after noting that “[e]very device of which human ingenuity is capable has been used to deny” the right to vote for African Americans, declared that he would send a law to Congress with the goal of eliminating barriers to the vote. In August of that year, after a vigorous debate in Congress, he signed into law the Voting Rights Act of 1965.

The new section 5 preclearance procedure received less attention in 1965 than the suspension of “tests and devices” (such as literacy tests) within the covered jurisdictions, and the provisions for federal examiners to directly conduct voter registration and bypass recalcitrant local officials. Nonetheless, section 5 was not well-received by the newly covered jurisdictions. Section 5 faced an immediate facial challenge in South Carolina v. Katzenbach (383 U.S. 301 (1966)), a landmark case invoking the Supreme Court’s original jurisdiction, in which the Supreme Court rejected a federalism-based constitutional challenge to several portions of the recently enacted law, including section 5. The Court found that the preclearance remedy was not an undue intrusion on federalism principles, inasmuch as the Fifteenth Amendment explicitly gave Congress enforcement powers against the states to prevent racial voting discrimination. The Katzenbach Court upheld this “uncommon exercise of congressional power” as rational and appropriate, noting that some states “had resorted to the extraordinary stratagem of contriving new rules of various kinds for the sole purpose of perpetuating voting discrimination in the face of adverse federal court decrees.” The Court also upheld the section 4(b) coverage formula, finding that it rationally targeted states with histories of voting discrimination, and that its provisions to add and remove covered jurisdictions, along with its sunset requirement, addressed concerns about overbreadth and/or underbreadth.

Section 5 originally was set to expire in five years. However, because of persistent discrimination in voting, including the adoption of at-large elections, gerrymandered election districts, and other tactics designed to submerge and waste newly enfranchised minority votes, Congress decided that it was necessary to reauthorize section 5 in 1970 for five years, and again in 1975 for seven years. The 1975 reauthorization added provisions prohibiting language-based discrimination against citizens of three racial and ethnic groups who had suffered a history of official voting discrimination (Hispanics, Asian Americans, and Native Americans). The Supreme Court reaffirmed the constitutionality of Congress’s 1975 reauthorization of section 5 in City of Rome v. United States (446 U.S. 156 (1980)). Congress reauthorized section 5 in 1982 for twenty-five years; most attention and debate in 1982 actually concerned the addition of a “results” standard to section 2 of the VRA, which is nationwide in scope and does not expire. The Supreme Court reaffirmed the constitutionality of Congress’s 1982 reauthorization with only a brief discussion in Lopez v. Monterey County (519 U.S. 9 (1996)).

Why Did Congress Need to Reauthorize Section 5 in 2006?

As the expiration of section 5 approached, the civil rights community was concerned that any reauthorization would be confronted by constitutional challenges, making it critical for Congress to act on the basis of a thoroughly documented record. In previous reauthorizations, the DOJ and the U.S. Commission on Civil Rights had assisted in building the record, but this appeared to be unlikely to happen again. Stepping into the breach, the Lawyers’ Committee for Civil Rights Under Law and other members of the civil rights community organized the National Commission on the Voting Rights Act (NCVRA). The eight-member bipartisan Commission, which consisted of government and policy officials, academics, and civil right practitioners, documented voting discrimination following the 1982 reauthorization.

Over seven months of ten hearings conducted across the country, the NCVRA heard from over 100 witnesses consisting of voting rights practitioners, community activists, academics, and politicians and developed a record showing widespread and persistent voting discrimination in the covered jurisdictions. In February 2006, the NCVRA issued a report authored by Commission member and prominent social scientist Dr. Chandler Davidson, concluding that “the evidence presented at the hearings strongly suggests that the two major problems which have been the focus of the Act—restricted ballot access and minority vote dilution—continue in twenty-first century America.”

In October 2005, at the time the NCVRA was concluding its hearings, the then-chair of the Committee on the Judiciary of the House of Representatives, F. James Sensenbrenner of Wisconsin, began congressional hearings to examine the impact of the temporary provisions of the VRA and to consider whether they were still needed. Sensenbrenner had worked on the reauthorization of section 5 in 1982 and wanted to continue that legacy by leading the effort in 2006. In February 2006, Sensenbrenner formally requested the NCVRA report and its supporting documents, and the Commission’s work became part of the official record. The civil rights community submitted extensive additional state-specific reports on the record of compliance of most of the covered jurisdictions, including all of the fully covered states. Overall, the House conducted ten hearings to consider what would eventually be called the Fannie Lou Hamer, Rosa Parks and Coretta Scott King Voting Rights Reauthorization and Amendments Act of 2006.

There was some opposition to section 5 reauthorization submitted by ideological opponents of race-conscious civil rights remedies, but on the whole the evidence and testimony were substantially pro-reauthorization. Much of the reauthorization debate centered upon whether the Supreme Court’s decisions in Georgia v. Ashcroft (539 U.S. 461 (2003)) and Reno v. Bossier Parrish II (528 U.S. 320 (2000)) had misinterpreted Congress’s intended reading of the section’s effect and purpose tests, respectively; the final bill restored the law in effect before those decisions. In addition to section 5 (and its coverage formula in section 4(b), the bill also extended the language minority protections in section 203 of the VRA for twenty-five years.

On April 27, 2006, the ranking member of the House Committee of the Judiciary, John Conyers, joined Sensenbrenner in the first reauthorization hearing before the Senate Judiciary Committee. At Sensenbrenner’s request, the Senate incorporated the hearing record compiled by the House into the record of the Senate, which Sensenbrenner noted was “perhaps the most voluminous unanimous consent request in the history of the Committee.” The Senate went on to have four more hearings during May 2006. The House voted on the reauthorization of section 5 on July 13, 2006, when it passed 390–33. A week later, on July 20, in a speech before the ninety-seventh Annual Convention of the NAACP, President George W. Bush thanked the House of Representatives for reauthorizing the VRA and called on the Senate to act promptly to pass the bill without amendment. That same day, the Senate reauthorized the VRA by a vote of 98–0.

Constitutional Challenges to the Section 5 Reauthorization

Eight days after the July 27, 2006, White House ceremony in which President Bush signed the bill into law, a Texas utility district filed a constitutional challenge to the 2006 reauthorization. A three-judge district court unanimously upheld its constitutionality in an extensive and detailed opinion; the appeal in Northwest Austin Municipal Utility District No. 1 v. Holder (NAMUDNO) (557 U.S. 193 (2009)) reached the Supreme Court in 2009. The constitutional arguments were fully briefed and argued, but the Court’s decision, citing the constitutional avoidance doctrine, did not reach the issue of constitutionality.

The Court instead reinterpreted section 4(a) of the VRA to permit any covered jurisdiction to seek “bailout” from coverage under section 4(a) on its own, which vastly increased the number of jurisdictions that potentially could seek bailout because many counties contain multiple towns, school districts, utility districts, and other political bodies that conduct elections. The Supreme Court set the stage for the subsequent constitutional litigation by cautioning that the burdens imposed by section 5 may no longer be justified by current needs and that its geographic coverage may no longer sufficiently relate to the problem it targets to be an appropriate exercise of Congress enforcement powers.

The legal claim against the 2006 reauthorization in the NAMUDNO case and subsequent cases was framed primarily in terms of the City of Boerne v. Flores (521 U.S. 507 (1997)) doctrine: that sections 5 and 4(b) are no longer congruent and proportional remedies to a record of unconstitutional discrimination and therefore are not “appropriate” remedial legislation for either the Fourteenth or Fifteenth Amendment. These challenges do not contend that section 5 was unconstitutional when adopted; they grant that it was a constitutional response to a widespread pattern of intentional voting discrimination when it first was enacted.

The principal arguments instead are, first, that “things have changed in the South” and that the “federalism costs” of section 5 now outweigh the prospect of intentional racial voting discrimination. The rates at which minority citizens register and vote, and the number of minority candidates elected to public office, have increased dramatically since 1965, due in part to section 5. There have been few federal court judgments finding intentional voting discrimination in the covered jurisdictions since 1982. Because things have changed, the argument goes, there is no longer a pattern of unconstitutional voting discrimination, and the permanent nationwide provisions of the VRA (such as section 2) provide adequate protections against voting discrimination where it does occur. The other main argument against the 2006 reauthorization is that section 5 coverage continues to be determined by section 4(b) of the VRA, which refers to “tests and devices” and voter participation levels in elections between 1964 and 1972, and that these no longer can rationally identify jurisdictions that require the preclearance remedy.

A decision finding section 5 unconstitutional would shock many people, especially those minority citizens who have benefitted so greatly from its protections. But the Supreme Court’s cautionary language in NAMUDNO has led many to believe that the Court may be prepared to do just that.

Today, one covered county (Shelby County, Alabama), two fully covered states (Texas and South Carolina), and one partially covered state (Florida) have pending constitutional challenges to the 2006 reauthorization. The Shelby County case is the most immediate candidate for Supreme Court review. It was filed in 2010, stating only a constitutional challenge to the 2006 reauthorization; the complaint specifically pled that the county was ineligible for section 4(a) bailout due to section 5 objections to voting changes by municipalities within the county during the past ten years. Because there was no statutory claim, the plaintiff’s motion to empanel a three-judge court was denied and the case was heard by a single judge, District Judge John D. Bates, who decided the case as a purely facial challenge based on the legislative record before Congress.

Judge Bates conducted a painstaking review of the voluminous legislative record, including thousands of pages of testimony, reports, and data regarding racial disparities in voter registration, voter turnout, and minority electoral success; the nature and number of section 5 objections; the record of judicial preclearance suits and section 5 enforcement actions; the incidence of section 2 litigation; the use of “more information requests” and federal election observers; the evidence of racially polarized voting; and evidence of section 5’s deterrent effect.

Judge Bates’ legal analysis differed somewhat from that of the NAMUDNO three-judge court, holding that the Boerne line of cases represented an evolutionary development of the Katzenbach “rationality” review and that a “congruence and proportionality” analysis of the 2006 reauthorization was required. But, because Congress was enforcing fundamental constitutional rights—the right to vote and the equal protection right against governmental racial discrimination—its judgments as to the appropriate statutory remedies were entitled to substantial deference. Judge Bates found that Congress legitimately looked to a broad range of evidence in arriving at its conclusions and that it was not limited to considering only adjudicated constitutional violations or any other specific class of evidence. Finding that Congress acted constitutionally, Judge Bates dismissed the case on cross-motions for summary judgment by the United States and the defendant-intervenors.

The appeal in Shelby County v. Holder was heard on an expedited timetable by the D.C. Circuit, which ruled in the defendants’ favor on May 18, 2012. Judges David Tatel and Thomas Griffith affirmed the district court decision in all respects. The panel upheld Judge Bates’ conclusions that section 5 remains a congruent and proportional remedy to the twenty-first century problem of voting discrimination in covered jurisdictions and that the record evidence of contemporary discrimination in covered jurisdictions was “plainly adequate to justify section 5’s strong remedial and preventative measures,” and to support Congress’s predictive judgment that failure to reauthorize section 5 “would leave minority citizens with the inadequate remedy of a Section 2 action.”

Addressing the claim that the section 4(b) formula improperly relies upon old data, the panel held that the legislative record shows that section 4(b), which together with the provisions for bail-in and bailout forms an integral coverage mechanism, continues to single out the jurisdictions in which discrimination is concentrated, and that section 4(b) is sufficiently related to the problem that it targets. Judge Steven Williams dissented in part, on the ground that the section 4(b) coverage formula was outdated and failed to constitutionally distinguish between the covered and noncovered jurisdictions. Judge Williams also expressed concerns about race-conscious decision making, but those had not been raised by the plaintiff, or argued to the court. Many observers expect the Supreme Court to grant certiorari.

The three other cases are section 5 declaratory judgment actions being heard on expedited schedules by three-judge district courts, with appeals of right directly to the Supreme Court; however, the district courts will reach the constitutional issues in those cases only if preclearance is denied on the statutory claims. Two of these cases concern photo ID requirements enacted by Texas and South Carolina, while the third concerns Florida’s changes to third-party voter registration rules, early voting periods, and election-day updates for registration. The Supreme Court would retain the option to deny plenary review in all three cases, but it is generally considered likely that the constitutional question will be argued and decided by the Supreme Court in at least one of them if it has not already done so in the Shelby County case. The State of Arizona’s constitutional challenge quoted earlier was voluntarily dismissed but may also be refiled at a later date.

The forthcoming appeals may succeed if the Supreme Court is willing to supplant Congress’s judgments about the threat of voting discrimination. However, the gravity of the issues, the powerful decisions by the lower courts that have parsed the record, and the unique level of deference due to Congress when it acts to prevent racial voting discrimination all provide compelling reasons for the Supreme Court to approach these cases with restraint.


Robert A. Kengle and Marcia Johnson-Blanco are co-directors of the Voting Rights Project, Lawyers’ Committee for Civil Rights Under Law, in Washington, D.C.