Shelby County v. Holder: Forget the coverage formula, what about the effects test?

The following contribution to our Shelby County v. Holder Symposium comes from Joshua Thompson. Mr. Thompson is a staff attorney at the Pacific Legal Foundation in Sacramento. He drafted PLF’s amicus briefs in this case.

The upcoming oral argument in Shelby County v. Holder is not likely to produce any surprises – we had a sneak preview four years ago in Northwest Austin Municipal Utility District Number One v. Holder.  While Northwest Austin ultimately turned on the tiny district’s eligibility to bail out from Section 5’s provisions, the oral argument centered on the broader question of Section 5’s constitutionality.

The arguments in Shelby County will likely rehash those same arguments from Northwest Austin. In defense of Section 5, the United States will argue that most of the targeted jurisdictions have a lengthy history of intentional discrimination. Shelby County will counter that “current burdens … must be justified by current needs.”  The United States will argue that but, for Section 5, covered states would revert to the blatant intentionally discriminatory practices that once justified Section 5.  Shelby County will respond that such an argument assumes the culture of the South hasn’t changed in the past fifty years. The United States will also argue that the Court should defer to Congress’s 16,000-page record. Shelby County will respond that deference is uncalled for, and that the congressional record – no matter how large – fails to contain contemporary evidence that justifies singling out the covered jurisdictions.

That response by Shelby County– highlighting the inconsistencies in Section 5’s coverage formula – will also form the basis of its attack against the statute’s constitutionality. Section 5 differentiates between states on a matter fundamental to state sovereignty, yet little contemporary evidence justifies those half-century-old distinctions.  On the contrary, minority registration rates and voter turnout are often better in covered jurisdictions.  Claims of discriminatory voting practices are just as likely to come from non-covered jurisdictions. Covered jurisdictions elect minority candidates at least as frequently as non-covered jurisdictions.    Covered jurisdictions are prohibited from making race-neutral voting changes – like voter ID laws – that are legal in non-covered jurisdictions.  And so on.

In Northwest Austin, every member of the Court signed on to an opinion questioning the lack of contemporary evidence justifying the coverage formula.  By finding the utility district eligible for bailout, however, the Court gave Congress a chance to correct the coverage formula’s constitutional problems.  Unfortunately, Congress has taken no further action to remedy those constitutional deficiencies. It would be very surprising for a Court so skeptical of the coverage formula in 2009 to permit it to go unchanged through 2031.

Despite many claims to the contrary, the sky will not fall when the Court strikes down Section 5’s coverage formula.  The constitutional problems are easily fixed.  For example, Congress can impose a preclearance requirement on the states and jurisdictions that have low minority registration rates and voter turnout, or on jurisdictions that have been the most discriminatory in the past ten years. If Congress couples a narrowly tailored preclearance trigger with a relatively short expiration date – say five to ten years – it’s hard to see how the coverage formula won’t pass constitutional muster.

To the extent that the oral argument focuses on the unconstitutional – but easily remedied – coverage formula, there will be little reason for those championing Section 5’s successes to be alarmed.    What will be interesting, however, is to see if the Court delves into Section 5’s operative provisions. Section 5 prohibits voting changes that have either the “purpose” or the “effect” of denying the right to vote on account of race.  No one disputes that the Fourteenth and Fifteenth Amendments permit Congress to enact laws that prohibit purposeful discrimination in election procedures.  Whether those amendments permit Congress to enact laws that prohibit any discriminatory “effect” is less clear.

Instead of focusing on concrete examples of bias by identifiable bureaucracies or individuals, Section 5’s “effects test” eschews intent for statistics.  A voting change is per se illegal where the statistical results of the voting change show a retrogressive effect.   For example, DOJ objected to a proposed Virginia redistricting plan where the black population in one district fell from 55.7% to 55.2%, even though it conceded that non-discriminatory population changes altered the racial makeup of the district.  In Arizona, a redistricting plan that created two majority Hispanic districts out of one super-majority Hispanic district was rejected.  And, a redistricting plan in Charleston was rejected based on hypothetical future population shifts.

In 2006, Congress expanded the effects test to include prohibitions on voting changes that make it more difficult for minorities “to elect their preferred candidates of choice.”  The effects test, along with the “preferred candidate of choice” requirement in Section 5(b), force covered jurisdictions to make voting decisions because of the resulting racial outcomes.  Jurisdictions cannot enact innocuous race-neutral voting changes without first determining what the racial “effect” will be.

Thus, the effects test may run afoul of equal protection for the reasons Justice Scalia made clear in Ricci v. DeStefano.  Not unlike the disparate impact provisions of Title VII – where employers must proactively employ race-first business practices to avoid liability – the effects test requires governments to adopt voting practices because of their racial impact to ensure preclearance.  Insofar as equal protection is concerned, there is little practical difference between a civil rights law that mandates race-conscious decisions in employment, and a civil rights law that mandates race-conscious decisions in voting.

The effects test – and its “candidate of choice” companion – may also be understood as an explicit racial classification and would therefore subject to a traditional strict scrutiny analysis.   This is the view taken by Judge Williams of the U.S. Court of Appeals for the D.C. Circuit in Shelby County.  Section 5 classifies voters along racial group lines and judges the legality of voting practices based on the ability of those groups to elect their candidate of choice. “But the implied ‘they’ of § 5 is not a polity in itself; nor is it an association freely created by free citizens.  Quite the reverse:  It is a group constructed artificially by the mandate of Congress, entirely on the lines of race.”

In their amicus brief in Shelby County, Pacific Legal Foundation – joined by the Center for Equal Opportunity and the American Civil Rights Foundation – argues that the Court should look beyond the unconstitutional coverage formula and hold the effects test to be unconstitutional.  Section 5’s effects test does not enforce Fifteenth Amendment rights; to the contrary, it significantly violates individuals’ Fifth and Fourteenth Amendment rights to equal protection.  The racial classifications, racial decision making, and racial gerrymandering that result from the effects test are the greater constitutional evil. Perhaps Justice Douglas said it best:

When racial . . . lines are drawn by the State, the multiracial . . . communities that our Constitution seeks to weld together as one become separatist; antagonisms that relate to race . . . rather than to political issues are generated; communities seek not the best representative but the best racial . . . partisan.  Since that system is at war with the democratic ideal, it should find no footing here. “Separate but equal” and “separate but better off” have no more place in voting districts than they have in schools, parks, railroad terminals, or any other facility serving the public.