an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
On the face of it, what the Court did today in Shelby County seems more modest than what it might have done. While it could have struck down Section 5 of the Voting Rights Act—and indeed Justice Thomas wrote separately to say he would have—instead the Court struck “only” Section 4, the coverage formula that determines which states are covered under the Act. Many have already pointed out that this is a distinction without a difference: since this Congress seems unlikely to enact a new Section 4 coverage formula (and there is no telling whether such a formula would be upheld by this Court anyway), the Court’s move today was at best false modesty. Section 5 is essentiallydead, whether or not the Court admits it did the deed.
I want to suggest in this post that while it’s correct that this distinction makes little immediate difference, in jurisprudential terms, striking Section 4 was in some ways more radical than striking Section 5. The Court’s approach to Section 4 represents a new departure in American federalism, one only hinted at in dicta in one previous case: a principle that the states’ “equal sovereignty” constrains Congress’ ability to treat one state differently from another. This principle is one that should not have survived Reconstruction. Its appearance in the federalism jurisprudence of 2013 does not augur anything good.
Although the Court would not put it this way, let’s be blunt. Today’s decision was a major victory for all those who have ever viewed federal civil rights laws as unfairly victimizing and singling out the white South. I say more about this in this recent essay about the principle of “equal sovereignty” that the Court endorsed today. I won’t repeat it all here. To fully understand what happened today, one needs to go back not only to the Nixon and Reagan era of backlash against civil rights laws (and the related revival of talk of “state sovereignty”), but also to a century or so before that. It was the opponents of Reconstruction and the Reconstruction Amendments who first put forward the argument that the enforcement of black civil rights against the Southern states in particular was an affront to those states’ equal sovereignty. That is why I think that in jurisprudential terms, and in the long sweep of history, the choice to strike down Section 4 in particular, in part on “equal sovereignty” grounds, was not modest at all, but radical. As Justice Ginsburg says in dissent (p.30), going this route took considerable “hubris.”
Even so, the Court’s choice to strike the coverage formula (Section 4) as opposed to the preclearance provision itself (Section 5) actually leaves a bit more room for potential responses. And here I do not simply mean the unlikely scenario of the current Congress quickly enacting a new Section 4 formula. Section 5 sits now in a kind of suspended animation. It can be reactivated in specific instances through litigation, even in the absence of any action by Congress, through the so-called “pocket trigger” system (Section 3). Congress ought to amend and strengthen this system. In the meantime, civil rights advocates should consider targeted litigation under Section 3 to trigger preclearance coverage in a state like Texas, even if Congress does nothing.
Although I am open to persuasion on this point, after reading the decision today my view of the way forward is this: Congress should not attempt to enact a revised Section 4. Instead, Congress (whether this Congress or a future Congress) should enact stronger nationwide voting rights protections, while at the same time strengthening the pocket trigger. My proposal on the latter point is this: Section 5 coverage should commence automatically in any jurisdiction that a court determines has violated Section 2. Coverage should last ten years (to cover a redistricting cycle) and should include other jurisdictions physically within the covered jurisdiction. I think this proposal would achieve many of Section 5’s aims, and furthermore, I think the Court would uphold it.
The remainder of this post discusses, first, what it means that the Court struck down Section 4 in part on “equal sovereignty” grounds, and second, what the landscape looks like going forward after today’s decision.
I. A New Jurisprudence of Equal Sovereignty
One of the great questions before today’s decision, central to the opinion of the court below, was what the standard of review would be. Would the Court cabin Congress’ powers under the Fifteenth Amendment with something like a City of Boerne “congruent and proportional” standard, as it has cabined Congress’ Fourteenth Amendment power? Or would voting rights and the Fifteenth Amendment be different—perhaps a view of Congressional power more like that of McCulloch?
Amazingly, the Court today does not answer this question at all. The majority opinion says nothing about whether it is applying a “congruent and proportional” standard. Reading between the lines of the majority opinion, it appears that the Court is doing something else entirely.
In the first paragraph of his opinion for the Court, Chief Justice Roberts identifies two problems with the Voting Rights Act of 1965: Section 5’s preclearance requirement is “a drastic departure from basic principles of federalism,” and Section 4’s coverage formula is “an equally dramatic departure from the principle that all States enjoy equal sovereignty.” (p.1) The first of these issues is straightforwardly linked with the strain in the Court’s “new federalism” jurisprudence that focuses on limiting Congressional power (often, the power to enact civil rights laws). Think of United States v. Morrison, the case striking down the Violence Against Women Act on the grounds that it exceeded Congress’ power under either the Commerce Clause or the Fourteenth Amendment. But that’s not the way the Court (except for Justice Thomas) went today.
Instead, the majority went for the “equal sovereignty” issue. The Chief Justice applied what I would describe as rational basis with bite. There is language in the opinion suggesting that the coverage formula is simply irrational (see the example of traffic stops for redheads, p.22). But there is no question that a statute enacted by Congress and supported by a 15,000 page record, described at length in the dissent, would ordinarily pass rational basis review. Moreover, in general, under rational basis review, it would be fine for Congress to attack part but not all of a given problem. Not so here. What gives the review all of its “bite”—that is, what drives demand for a tighter fit between the coverage formula and the locations of voting rights violations—is this “principle that all States enjoy equal sovereignty.”
As a matter of precedent, that principle appears to come essentially from nowhere (although it is a cousin of principles of state sovereignty that figured in the sovereign immunity cases of the Rehnquist revolution). The Chief Justice makes a big show of criticizing the dissent today for refusing to recognize that an "equal sovereignty" principle was mentioned in the Court’s 2009 decision in the NAMUDNO case, a case the Chief Justice cites more than two dozen times in his opinion today. (That case was the last challenge to Section 5 of the VRA, in which the Court essentially punted.) The one brief paragraph in NAMUDNO mentioning “equal sovereignty” was dicta, a point the dissent makes today that the Chief does not dispute. But the Chief argues that NAMUDNO “placed emphasis on [the] significance” of this “principle of equal sovereignty,” so we ought to take that on board. The irony is rich: NAMUDNO itself pulled that principle out of a hat only by entirely inverting (in part through the device of a strategically placed ellipsis) the directly-on-point holding of South Carolina v. Katzenbach, the case upholding the VRA in 1966. In Katzenbach, the Court considered and rejected the argument against the VRA from the “equal sovereignty” of the states, holding that this principle “applies only to the terms upon which States are admitted to the Union” (see Ginsburg’s dissent at p.30-31 or this essay by Zachary Price). It is not altogether clear whether we are supposed to view this holding as having been silently overturned, but my guess is yes.
I have no idea how far this new jurisprudence of equal sovereignty will go in the future. Moreover I’m not sure which way we ought to hope things go. On the one hand, there is an obvious danger that many federal laws could now be in jeopardy. All kinds of statutes that specify that particular programs, benefits, and burdens go only to some states and not to others might now be in trouble (the dissent lists a few at 31-32). Some of these distinctions would likely survive rational basis with bite, but many are the product of messy political compromise and horse-trading, especially in their details. Justice Ginsburg cites one statute under which most of the money is required to go to states with “a population density of fifty-two or fewer persons per square mile or a State in which the largest county has fewer than one hundred and fifty thousand people.” It’s a rural drug assistance program, so sending the money to less dense states seems rational enough. But I would hate to have to defend in court the exact choice to draw the line at 52 persons, or the separate provision for county size, or generally the idea that people from upstate New York deserve less help under this program because they happen to be yoked to New York City… the potential mischief that this doctrine could cause, if it really means what it says, is nearly limitless.
On the other hand, what if the doctrine does nothing to all of those programs that treat one state differently from another? What if the doctrine is only about civil rights laws that single out states in the South for heightened scrutiny? In a way, that is even worse. It suggests that of all the potentially salient differences among the states, the only one that Congress must now, under federal constitutional law, ignore, is the fact that some states have a long history of disenfranchising some of their citizens—a history that unfortunately appears to function as something of a rough, imperfect guide to their continued propensity to discriminate against those same citizens in voting today.
II. What Now?
After reading today’s decision I do not believe this Court will accept any plausible coverage formula, even one based on “current” data. The problem is this. Any such formula will single out the South. That is the lesson of the Katz study and most other efforts to quantify the geographic distribution of voting rights violations today. Any formula that singles out the South, even if it also covers some northern swing state trouble spots like Ohio, risks appearing “reverse-engineered . . . to capture the jurisdictions Congress wanted to single out.” (majority, p.18). That’s not what this Court wants to see. And yet it is somewhat inevitable. Every formula legislators write into in any statute, while aiming for fairness and rationality, also takes account of whose ox(en) will be gored. The original coverage formula of Section 5, upheld by the Court, may well have been written to exclude Texas, as part of a political compromise to get the Voting Rights Act passed at all. (Texas was brought into coverage by a later amendment.)
Any formula that singles out the South triggers a special kind of scrutiny. The Chief Justice was more circumspect in his opinion today, but at the oral argument in this case, he put it bluntly, asking the Solicitor General, “General, is it—is it the government’s submission that the citizens in the South are more racist than citizens in the North?” The question encapsulates the problem. It seems to be an indignity or an affront, to some, to suggest that there is any continuing difference between the South and the North when it comes to matters of race and discrimination. It is as though we are supposed to read the news every day and simply believe, as a matter of national piety, that it is purely coincidental that Paula Dean happens to hail from a place that was, until this morning, a covered jurisdiction. I have more to say about this issue here. Apparently part of believing that we now live in a post-racial America is believing, as well, that it is uniformly post-racial, despite all evidence to the contrary.
So if not a new coverage formula, then what? The Court has given us two hints, this term, that point the way forward if we look carefully.
First, in last week’s decision in Arizona v. Inter-Tribal Council, the Court, in an opinion by Justice Scalia, made it clear that Congress has plenary, sweeping power under the Elections Clause to set the rules for federal elections. “Times, Places, and Manner” covers a lot of ground. Redistricting is entirely a matter of the “Places” of elections. Documentation and other requirements for registering or casting a ballot are all matters of “Manner.” Congress needs to use this power to enact a nationwide set of basic voting rights protections. (Rick Pildes has made this argument.)
There is precedent for this. Aside from laws like the National Voter Registration Act, at issue in last week's case, consider the Voting Rights Act itself. Part of the VRA banned not just racially discriminatory literacy tests, but all literacy tests, nationwide. Many white voters were able to vote because of this ban, just as many white voters in Texas who lacked photo identification were able to vote in Texas last year, because Texas’ photo ID law was blocked by Section 5. It would seem that Congress is on the firmest constitutional footing, in the eyes of this Court, when its protections are universal and uniform, protecting all voters in all states. This leaves little basis for challenging the statute either under the Boerne line of cases or under today’s new “equal sovereignty” doctrine. Just use the Elections Clause.
This approach, however, will not achieve what Section 5 does: it will not identify jurisdictions with especially difficult histories of discrimination in voting and provide for greater scrutiny of their mundane, reasonable-looking election changes—moving a polling place, switching a local election system—that often conceal discrimination. For that, we need something like Section 5.
The best solution left is the pocket trigger. And that brings me to the second hint from this term. At the Shelby County oral argument, Justice Kennedy mused repeatedly about the possibility that actual judicial proceedings under Section 3 could do the work of Section 5. At the moment, Section 3 is a somewhat inadequate substitute. A judge can place a jurisdiction under preclearance coverage only under limited circumstances: in particular, there must be a finding of intentional discrimination. Congress should amend the Voting Rights Act in response to Shelby County to make this trigger more effective. Specifically, it should write into the statute that any jurisdiction that violates Section 2 is automatically placed under Section 5 coverage for a decade. (The reason it should be a decade is to make sure that a full redistricting cycle is included. It should also apply to all jurisdictions enclosed inside the covered one.)
The Court ought to uphold this remedy—and I think it would—because this approach in no way relies on a jurisdiction’s history of discrimination. It turns entirely on present circumstances, and it imposes preclearance on the basis of the judgment of a court, rather than on the basis of Congressional compromise or reverse-engineering. Even if some states in the South end up covered more often than some other states, Justice Kennedy can be assured that this is not about the discrimination of the past—only the discrimination of the present.
I have no illusions that this Congress is about to pass a Voting Rights Restoration Act that would do any of this. And so, it is time now for civil rights groups and the Department of Justice to work with what they have. In the case of the pocket trigger, conventional wisdom is that it doesn’t do much and rarely applies. But this conventional wisdom might be outdated, as of today. For instance, consider Texas. A federal court found last year that the state’s redistricting plans for both Congress and the State Senate were “enacted with discriminatory purpose.” This finding, only the latest in a decades-long string of challenges to redistricting plans in Texas that were found to dilute minority votes, could form the necessary predicate even under current, un-amended Section 3 law to trigger coverage of Texas under Section 5. Part of the reason there has been relatively little litigation under Section 3, and therefore relatively little case law, is that Section 4’s formula already covered quite a few of the places where courts have found intentional discrimination. Now it’s a new game, and it will be up to the federal courts in Texas to determine whether Texas’ recent intentional discrimination is sufficiently egregious that Section 3 coverage is appropriate.
And so, ironically, one result of striking down Section 5 will undoubtedly be more litigation—primarily under Section 2, and perhaps occasionally also under Section 3. Matters that were once easily disposed of by a filing with the DOJ will now involve discovery, formal depositions, and possible injunctions. There will be plenty of work for voting rights lawyers in the new regime. But many voting rights violations will also likely go unaddressed, especially in the small towns and other jurisdictions from which most of the Section 5 objections have tended to emerge. And so we will limp along, until some Congress—sadly, probably not this Congress—gets around to passing an amended Voting Rights Act that this Court can accept. Posted
by Joseph Fishkin [link]