The Court meant what it said in Northwest Austin

The déjà vu is palpable.  Four years ago, in Northwest Austin Municipal Utility District No. One v. Holder, the Court held that Section 5 of the Voting Rights Act raises “serious constitutional questions.”  The Act’s preclearance remedy – in which covered jurisdictions must affirmatively justify their duly enacted legislation before federal officials – imposed “substantial federalism costs” and was justified at the time of enactment only by the “exceptional conditions” then prevailing in covered jurisdictions.  The Act’s coverage formula was “based on data that is now more than 35 years old,” and there was “considerable evidence that it fails to account for current political conditions.”  Although the Court ultimately decided the case on narrower statutory grounds, it did not mince words in stating that Section 5 was in peril unless it was updated to reflect the fact that “we are now a very different Nation” than we were in 1965.

It is now clear that the Court meant what it said.  In today’s decision in Shelby County, the Court cited Northwest Austin more than thirty times, and Sections I, II, and III.A of the Court’s decision are strikingly similar to Sections I and II of Northwest Austin.  Indeed, there are only about five pages of “new” material in the majority opinion, which respond to specific arguments raised by the government and the dissent.  So today’s decision was not in any way a surprise.

Nor was it inevitable.   Congress and the President had four years to address the constitutional defects of the statute by, for example, amending the coverage formula to better identify the jurisdictions that are currently most likely to engage in discriminatory practices.  But instead, Congress doubled down and reauthorized the statute for another twenty-five years under the same coverage formula that had been in effect since the 1970s.  Worse yet, Congress amended both the “purpose” and “effect” prongs of Section 5 in order to make it more difficult for covered jurisdictions to obtain preclearance.  In doing so, Congress needlessly put a thumb in the Court’s eye by abrogating Georgia v. Ashcroft and Reno v. Bossier Parish, both of which had construed Section 5 narrowly to avoid constitutional concerns.  The Department of Justice also exacerbated the inherent burdens of the statute by invoking Section 5 to block redistricting plans, voter-identification legislation, and changes to various other voting procedures in Florida, Texas, North Carolina, and South Carolina.

The majority in Shelby County only addressed the constitutionality of the coverage formula for identifying covered jurisdictions.  (Justice Thomas would have gone further and held that the entire preclearance remedy – i.e., the extraordinary requirement that covered states seek advance approval from federal officials before implementing any changes to voting procedures – is unconstitutional.)  So, for the time being, the preclearance remedy still exists but is effectively a dead letter unless and until Congress enacts a new coverage formula that is better tailored to identifying where discrimination is most likely to occur today.

The likelihood of that happening seems slim.  Needless to say, there will be strenuous resistance to any attempts by Congress to amend the coverage formula to capture new States.  For example, in recent years, there has been extensive litigation over voter-identification laws and early-voting rules in Wisconsin, Pennsylvania, and Ohio.  But the challenged practices in those states are orders of magnitude different from the types of conduct that Congress originally identified to bring states within the Section 5 regime (i.e., the use of literacy tests and very low rates of minority voting).  And the broader partisan dynamic makes passage of a new coverage formula very unlikely.

The end result is that, for the foreseeable future, all states accused of discrimination will be subject to the same standards and procedures under the Equal Protection Clause and Section 2 of the Voting Rights Act.  This is how it should be.  In all other areas – such as employment, education, and housing – the party alleging discrimination bears the burden of proof, and a state law is presumed constitutional until the plaintiff proves otherwise.  And preliminary injunctions are always available if the plaintiff needs immediate relief while litigation is pending.  The Court’s decision in Shelby County places the onus on Congress to show that these traditional litigation tools are insufficient to remedy discriminatory practices in certain jurisdictions.  In light of current circumstances, that will be an exceedingly difficult showing to make.

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In many ways, the Court’s decision yesterday in Fisher v. University of Texas closely resembles its decision four years ago in Northwest Austin.  In Fisher, the Court expressed serious doubts about the constitutionality of race-based affirmative-action programs and established a stringent standard for evaluating the validity of such programs.  But the Court ultimately stayed its hand on the broader constitutional issues.  University officials would be well-advised to heed the Court’s advice.  As the Shelby County decision shows, when the Court gives the political branches one last chance to remedy a program’s constitutional defects, it is probably not bluffing.

Jeffrey Harris is an attorney at Bancroft PLLC.  He filed an amicus brief in Shelby County on behalf of a group of former DOJ officials, and has represented several other clients in Section 5 proceedings.  All views expressed herein are his own.