The following contribution to our Shelby County v. Holder Symposium comes from Zachary Price. Mr. Price is a fellow at Stanford Law School’s Constitutional Law Center. He has written an essay on NAMUDNO’s Non-Existent Principle of State Equality that will be published in March by the NYU Law Review Online. A draft of the essay is available here.
Last time the Supreme Court considered the constitutionality of Section 5 of the Voting Rights Act, in Northwest Austin Municipal Utility District Number One (NAMUDNO) v. Holder, it seemed to think the legislation was suspect simply because it treats different states differently. Whatever else one might say about the Act, this argument is a red herring. There is no constitutional requirement that federal legislation treat states equally.
NAMUDNO’s dicta
Section 5 of the VRA requires covered states and local jurisdictions to obtain “preclearance” from the Attorney General or a three-judge federal district court before changing certain election procedures, rules, or districts. In NAMUDNO, as in Shelby County, the petitioners argued that Congress exceeded its constitutional powers, even under the Fourteenth and Fifteenth Amendments, because evidence of voting rights abuses failed to sufficiently justify Section 5’s coverage formula. Although the Court in NAMUDNO called the questions presented by the statute “serious,” it ultimately managed to avoid them by adopting a saving construction. In Shelby County, an avoidance escape hatch seems unlikely; the Court seems poised to address the merits of the constitutional question.
So what are the serious constitutional questions presented by Section 5? The Court focused mainly on the issue of congressional power under the Reconstruction Amendments. But the Court also suggested that the statute is suspect simply because it “differentiates between the States, despite our historic tradition that all the States enjoy ‘equal sovereignty.’” Mangling a quote from a prior decision upholding Section 5, South Carolina v. Katzenbach (more on the mangling below), the Court observed: “‘The doctrine of the equality of States . . . does not bar . . . remedies for local evils which have subsequently appeared.’ But a departure from the fundamental principle of equal sovereignty requires a showing that a statute’s disparate geographic coverage is sufficiently related to the problem that it targets.”
It’s not entirely clear what this dicta from NAMUDNO means. A “historic tradition” and “fundamental principle” of state equal sovereignty might imply that legislation departing from this tradition/principle is suspect. In other words, NAMUDNO might suggest that some form of heightened scrutiny is appropriate for such legislation. But the opinion avoids reaching that conclusion explicitly. It simply states that a “sufficient showing” is required for legislation that treats states unequally – without saying what that “sufficient showing” is.
The Court, in short, kept its options open. In Shelby County, it should take this idea no farther. If the Court wants to strike down Section 5, it needs to find another way, because the suggestion that federal legislation treating states unequally deserves heightened scrutiny is quite wrong.
Why NAMUDNO is wrong
To see why NAMUDNO is wrong about state equality, consider what the Constitution actually says about states. To begin with, it guarantees each state representation (in proportion to population) in both the House of Representatives and the Electoral College. Even more importantly, it guarantees each state (regardless of population) equal representation in the Senate. States thus do not appear to be in need of the type of protection against discriminatory action that heightened scrutiny normally provides. Although it’s conceivable that a majority of states might gang up repeatedly on some minority of states, these guarantees of political representation in Congress and the Electoral College are normally sufficient to ensure that losers today may be winners tomorrow.
What’s more, the Constitution guarantees some other, quite specific forms of equality. Congress cannot adopt unequal “Duties, Imposts, and Excises,” nor can it enact any “Preference . . . given by any Regulation of Commerce or Revenue to the Ports of one State over those of another.” At least in the absence of some compelling reason to infer a broader unenumerated principle of state equality, the specificity of such guarantees suggests that no general rule otherwise guards states against unequal treatment in federal legislation.
What about tradition? Is there a historic practice of treating states equally? No, there isn’t. Congress routinely passes legislation that presumes that only some rational basis is necessary for unequal treatment of states. Earmarks are one example: Congress routinely appropriates funds for particular states or localities without necessarily doing the same for other equally deserving jurisdictions. Congress also sometimes adopts pilot projects that let one state or locality try out a program before it gets imposed nationwide. Congress’s management of federal property can also affect states unequally. Just ask Nevada about Yucca Mountain, which federal legislation designated as a repository for much of the nation’s nuclear waste. (Nevada tried to argue that this law violated a constitutional principle of state equality, but the D.C. Circuit gave that argument the back of its hand.) There are also regulatory laws that treat states unequally. The Clean Air Act permits California alone to adopt its own standards for certain emissions, while requiring other states to follow either California’s standards or federal regulations.
The Court in NAMUDNO seemed to get its notion of a tradition of state equal sovereignty from the so-called “equal footing” doctrine—the rule that new states enter the Union on an equal footing with their predecessors. The Court cited two equal footing cases (United States v. Louisiana and Lessee of Pollard v. Hagan) as support for its assertions. But the equal footing doctrine doesn’t support the idea that otherwise valid federal legislation treating states unequally is suspect for that reason. In fact, equal footing case law suggests the opposite.
The Supreme Court developed the equal footing doctrine to address a particular problem. Congress has constitutional authority to admit new states to the Union, but if it could impose any condition it liked on the admission of a new state, it might use that power to create second-class states. In other words, it might disadvantage new states by impairing their sovereignty in ways that it couldn’t have done for the old states. To prevent such discrimination against new states, the Court held that congressional conditions on a state’s admission to the Union are enforceable only if Congress could have imposed them on an existing state. So, for example, in Coyle v. Smith, the Court held that Oklahoma could move its state capital even though the move violated a condition in its admission statute. The “power to locate its own seat of government,” the Court reasoned, is a state power, not a federal power, so Congress could not prevent Oklahoma from moving its capital after it was admitted as a state.
In contrast, the Court upheld admission conditions that were based on a valid federal power. In United States v. Sandoval, the Court upheld admission conditions designating certain areas of New Mexico as Indian country because such action was “within the regulating power of Congress.” In Stearns v. Minnesota, the Court upheld admissions conditions requiring the state to preserve certain tax breaks on federal land ceded to the new state, because those conditions could just as well have been imposed in a land cession to any other state. In neither case did the Court ask whether Congress had treated similarly situated states differently; it simply asked whether Congress had exercised a valid federal power.
In contrast to NAMUDNO, the Court in Katzenbach properly interpreted the equal footing doctrine – in the very passage misquoted in NAMUDNO. Here’s the language from NAMUDNO again, with its quote of Katzenbach: “Distinctions [between states] can be justified in some cases. ‘The doctrine of the equality of States . . . does not bar . . . remedies for local evils which have subsequently appeared.’” What Katzenbach actually said with respect to ection 5 is that “[i]n acceptable legislative fashion, Congress chose to limit its attention to the geographic areas where immediate action seemed necessary. The doctrine of the equality of States, invoked by South Carolina, does not bar this approach, for that doctrine applies only to the terms upon which States are admitted to the Union, and not to the remedies for local evils which have subsequently appeared” (citations omitted, emphasis added). The Court in Katzenbach thus recognized that the tradition of equal sovereignty reflected in the equal footing doctrine applies only to improper admission conditions; it has no bearing on the constitutionality of Section 5.
In fact, it would be particularly odd to apply a principle of state equal treatment to legislation like Section 5 based on Congress’s Fourteenth and Fifteenth Amendment enforcement powers. Those Amendments, after all, were adopted principally to address concerns about discrimination against freed slaves – a problem obviously concentrated in one region of the country.
In Shelby County, the Court should correct its mistake in NAMUDNO and return to the correct view expressed in Katzenbach. There is nothing constitutionally suspect about federal legislation treating different states differently.
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