Shelby County v. Holder: Voting discrimination remains concentrated in covered states

The following contribution to our Shelby County v. Holder symposium comes from Spencer Overton, a Professor of Law at The George Washington University Law School.  He specializes in voting rights and is the author of the book Stealing Democracy: The New Politics of Voter Suppression. 

The Supreme Court is poised to decide the fate of the Voting Rights Act’s preclearance process – one of our nation’s most powerful tools in combating discrimination.  The Court should not second-guess Congress’s determination that voting discrimination remains concentrated in covered jurisdictions, and should uphold the law.

Section 5 of the Voting Rights Act requires that covered jurisdictions (nine states plus parts of seven others) “preclear” their proposed election law changes with federal officials.

Shelby County, Alabama, argues that preclearance is no longer warranted in covered jurisdictions because increases in minority voters and elected officials show discrimination has waned.  Shelby County also contends that the voting discrimination that still does exist is no longer concentrated in covered jurisdictions, and that a coverage formula based on election data from 1964, 1968, and 1972 presidential elections is obsolete.

While our nation has made great progress in the last fifty years, in 2006 Congress reauthorized Section 5.  In considering whether to reauthorize, Congress held twenty-one hearings, heard from over ninety witnesses, and assembled a fifteen-thousand-page record.  Congress did not simply rely on the existing coverage formula, but instead was guided by the extensive evidentiary record that showed contemporary discrimination in voting remains concentrated in covered jurisdictions.  As a result, Congress rationally decided not to add or subtract states from coverage.

Voting discrimination in covered states justifies Section 5

Congress found thousands of instances of voting discrimination in covered jurisdictions between 1982 – when Section 5 last was reauthorized – and 2006.  During that period, more than 750 Section 5 objections blocked approximately 2400 discriminatory voting changes.    Over half of the objections blocked intentional voting discrimination, suggesting constitutional violations.

In 2001, for example, just after black citizens had become a majority of registered voters in Kilmichael, Mississippi, the all-white incumbent town officials attempted to cancel an election.   The Justice Department objected.   As a result, the election was held, and voters elected Kilmichael’s first African-American mayor and three African-American aldermen.

Section 5 also deterred discriminatory voting changes – more than 205 voting changes were withdrawn after the Department of Justice requested more information.  Further, voting discrimination was evidenced by the 650 successful lawsuits brought under Section 2 of the Voting Rights Act in covered jurisdictions.

Congress determined the Section 5 process was needed because case-by-case litigation alone remained inadequate.  Litigation can take years and cost millions, puts the burden of proof on minority plaintiffs, and remedies voting discrimination after it occurs.  In contrast, preclearance is relatively quick and inexpensive, puts the burden of proof on jurisdictions better positioned to show their voting changes are not discriminatory, and prevents discriminatory practices before they become effective.

Voting discrimination remains concentrated in covered states

During the 2006 reauthorization Congress considered a detailed study of every published case involving Section 2 of the Voting Rights Act, which applies nationwide, since 1982.  The “Katz Study” showed that covered jurisdictions account for less than twenty-five percent of the nation’s population, but they account for fifty-six percent of successful Section 2 litigation.  A similar “McCrary Study” that included unpublished cases found that covered jurisdictions accounted for approximately eighty-one percent of successful Section 2 cases.  On a per capita basis, there were four times more published successful cases in covered jurisdictions than in uncovered jurisdictions (and twelve times more when factoring in unpublished cases).  Also, of the twelve states with the highest per capita rates of successful Section 2 litigation, eleven are covered, partially covered, or have been bailed into coverage.

The Katz Study also found higher levels of racially polarized voting in covered jurisdictions.  “Extreme white bloc voting” is defined white bloc voting of eighty percent or more in elections involving candidates of different races.  The Katz Study found extreme white bloc voting in 80.7% of documented elections in covered jurisdictions, compared to only 40.9% of documented elections in noncovered jurisdictions.

Congress also recognized that the preclearance process was properly tailored because covered jurisdictions with a clean record for ten years can bail out of coverage.  Congress heard extensive testimony that bailout is not burdensome or expensive, at a cost estimated at $5000 for most counties, and as low as $2500 for towns.  Since the revised bailout standard became effective in 1984, there have been thirty-eight successful bailouts, resulting in 236 different jurisdictions being released from coverage (including one quarter of all Virginia counties).  Indeed, every eligible jurisdiction seeking a bailout since 1984 has been successful.  The Justice Department recently approved bailout for New Hampshire.  The Voting Rights Act also allows courts to “bail-in” to the preclearance process previously uncovered jurisdictions that engage in extensive voting discrimination.

The Court should not substitute its judgment for that of Congress

Individual Justices may personally disagree with Congress, but they should respect their role as judges and defer to Congress’s rational reauthorization decision.

As the Court explained in South Carolina v. Katzenbach, Congress acts at the height of its authority when it legislates to protect voting rights.  The Framers of the Reconstruction Amendments understood abuses of state power, and intended an expansion of Congress’s powers and a “corresponding diminution of state sovereignty.”   The Fifteenth Amendment empowers Congress to use “any rational means” to prevent voting discrimination.  And the Fourteenth Amendment gives Congress the authority to enact laws that are “congruent and proportional” to prevent constitutional harms, and gives Congress greater leeway when protecting fundamental rights like voting.

During the 2006 reauthorization, Congress did not irrationally “rubber stamp” the pre-existing coverage formula.  Congress considered, voted on, and rejected several proposed coverage and bailout amendments because they would release from coverage jurisdictions where voting discrimination remains concentrated.  Congress was open to changing the special provisions of the Act where justified by evidence.  For example, Congress declined to renew a longstanding provision that authorized federal examiners to register voters in covered jurisdictions, finding it unnecessary.  While the reauthorization extended preclearance for twenty-five years, Congress decided to reconsider whether preclearance remains necessary in fifteen years (four general election cycles).

Earlier Courts have recognized the importance of deference to Congress when it comes to remedies for voting discrimination, and have done so in consistently upholding the constitutionality of Section 5.  None of the earlier reauthorizations had an extensive examination like the Katz Study comparing voting discrimination in covered and non-covered jurisdictions.   The 750 objections during the 1982-2006 reauthorization period were almost as constant as the 600 objections from 1965-1982. In 1965 coverage was imperfect, as many discriminatory jurisdictions went uncovered (Texas, Florida, Tennessee, and Kentucky), while some jurisdictions without extensive discrimination were covered.  The Court explained in Katzenbach that it is “irrelevant that the coverage formula excludes certain localities … for which there is evidence of voting discrimination.”

Judicial deference is especially appropriate in the Shelby County case.  Members of Congress represent all fifty states and have extensive expertise regarding the electoral process.   Congress is also better equipped to collect and examine vast amounts of data and make informed policy decisions.  Based on twenty-one hearings, dozens of witnesses, and a fifteen-thousand-page record showing discrimination remained concentrated in covered States, Congress renewed Section 5 by overwhelming bipartisan majorities.  The vote was 390-33 in the House and 98-0 in the U.S. Senate.  Over eighty-one percent of the representatives from covered jurisdictions voted in favor of reauthorization.  It was signed into law by Republican President George W. Bush.

The Court should defer to Congress’s rational determination that voting discrimination remains concentrated in covered jurisdictions, and uphold the coverage and preclearance provisions of the Voting Rights Act.