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
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
As I did last year, I'm publishing an early draft of the discussion notes I've prepared for teaching some of the major cases of the Supreme Court Term. A version of these discussion notes will appear in the 2013 Supplement to Brest,
Levinson, Balkin, Amar and Siegel, Processes of Constitutional
Decisionmaking (5th edition).
We are planning to publish the 6th edition in 2014. Much of the material in the supplement will
probably not make it into the next edition, and so I'm publishing it
here for future use by law professors and students. Today I'm publishing the discussion notes for Shelby County. I'll follow up with notes for three or four other cases over the course of the week.
A new doctrine?Shelby County promised to resolve the question whether the
"congruence and proportionality" standard of Boerne would also apply to the Voting Rights Act, or whether the
Court would retain the test of reasonableness in McCulloch used in the civil rights era cases of South Carolina v. Katzenbach, Katzenbach v. Morgan, and Oregon v. Mitchell.
ducks that question completely. Instead, it creates a new doctrine of equal
sovereignty: “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.”Because “the Act imposes current burdens” it “must
be justified by current needs.”
As Justice Ginsburg points out, the
equal sovereignty doctrine was mostly concerned with questions of state admission,
and even in this context it was honored in the breach as much as the
observance. It had never been applied to 14th Amendment section 5 or
15th Amendment section 2 legislation in the past; and South Carolina v. Katzenbach said the
principle was not germane.The idea of
“equal sovereignty” was offered as dicta in Northwest
Austin, joined by eight Justices. In the hands of Chief Justice Roberts,
however, it has now been elevated into a powerful new doctrine by five justices
in Shelby County.
Equal sovereignty versus the
Reconstruction paradigm. One reason why the doctrine of equal sovereignty
seems puzzling in this context concerns the history of Reconstruction itself. Congress,
then acting under the authority of the Guarantee Clause, divided southern
states into military districts, supervised them as wards of the Union, and restored
them to full status only after they had given blacks the right to vote and
ratified the Fourteenth Amendment.The
paradigm case that led to the Reconstruction Amendments involved treating
states differently based on the history of how they had treated blacks. See
Akhil Reed Amar, the Lawfulness of Section 5—and Thus of Section 5, 126 Harv.
L. Rev. Forum 109, 110 (2013) (“In short, any serious constitutional analysis
of the special preclearance system of the Voting Rights Act must come to grips
with the special preclearance system that generated the Fourteenth Amendment
itself in the 1860s.”).Are the two
situations distinguishable? Could Congress have passed the VRA under the Guarantee
Clause today?If so, do you believe the
Supreme Court would have used the equal sovereignty principle to limit Congress’s
powers under that clause as well?
Equal sovereignty as heightened scrutiny?
What level of scrutiny is implicit in the new "equal sovereignty"
doctrine? It seems to be clearly more than McCulloch
and Katzenbach, which used tests
either of reasonableness or rationality.
In fact, the new test seems to be even
more stringent than the congruence and proportionality test of Boerne itself. Boerne itself went out of its way not to disturb the civil rights
era cases. Later cases like Hibbs and
Tennessee v. Lane suggested that Congress
is on strongest ground when it attempts to support constitutional guarantees
against suspect classifications or violations of fundamental rights that the
Court has already recognized. This is especially so when Congress makes
detailed findings of fact of previous violations of constitutional rights.
The VRA concerned both suspect classifications (race, ethnicity, and nationality) and
fundamental rights (the right to vote). It also featured an ample record of
voting rights violations and factual findings. All this, however, turned out to
be insufficient under the new doctrine of “equal sovereignty.”
The Court’s treatment of congressional
findings of fact. Justice Ginsburg spends considerable time walking us
through Congress’s findings of bad behavior by covered jurisdictions and she emphasizes
Congress’s thoroughness and conscientiousness in compiling the record.Chief Justice Roberts, by contrast, says far
less about the record other than emphasizing the fact that black registrations
in covered jurisdictions are now at parity with non-covered jurisdictions.Justice Ginsburg notes that Congress believed
that it needed to address second-generation denials of voting rights; Chief
Justice Roberts regards these as an inadequate justification for maintaining
the current coverage formula.How
respectful is the majority of Congressional judgments?How respectful should it be?
Is the problem the size of the
congressional record or simply the length of years the coverage formula has
been in effect without substantial change? Assuming that Congress was determined
to maintain the current coverage formula, is there any record that the majority
would have accepted?
The reach of the equal sovereignty
doctrine. How far does the new "equal sovereignty" doctrine
extend?Justice Ginsburg's dissent
points out a number of federal programs that treat states differently.Also consider the interaction of the
"equal sovereignty" principle with the General Welfare Clause: many
social welfare programs, including, for example, Medicaid reimbursements, vary
by state.Different states get very
different amounts of funding in various federal programs, largely as a result
of logrolling and the political strength of small-state Senators.Does the new doctrine reach these programs?
Another possibility is that the “equal
sovereignty” doctrine was created in order to resolve this particular case--to
strike down section 4 of the Voting Rights Act--and that it will rarely be invoked
again outside of the civil rights context.In that case, it is merely an artifact of the Court's inability to
cobble together five votes for an interpretation of the Boerne standard.
Half-measures versus the whole ball of
wax. Note that Justice Thomas argues that if the majority is really serious
about the “equal sovereignty” principle, it should strike down section 5 as
well as section 4, because there is no justification for courts requiring only
some states to pre-clear their changes in voting practices.Is Thomas right?Note that the case was primarily litigated
about the constitutionality of section 5; the final opinion, however, focuses
on section 4 and emphasizes that it leaves section 5 still standing. Why do you
think there were only five votes to strike down section 4 but not section 5?
The VRA as a “racial entitlement.” The
majority appeared to be suspicious of Congress’s decision to maintain the old
coverage formula. At oral argument, Justice Scalia was particularly suspicious
of the fact that the VRA was reauthorized for 25 years by overwhelming margins.
enactment, not a single vote in the Senate against it. And the House is pretty
much the same. Now, I don't think that's attributable to the fact that it is so
much clearer now that we need this. I think it is . . . very likely attributable,
to a . . . perpetuation of racial entitlement. . . . Whenever a society adopts racial
entitlements, it is very difficult to get out of them through the normal
I don't think
there is anything to be gained by any Senator to vote against continuation of
this act. And I am fairly confident it will be reenacted in perpetuity unless
-- unless a court can say it does not comport with the Constitution. You have
to show, when you are treating different States differently, that there's a
good reason for it.
[I]t's a concern
that this is not the kind of a question you can leave to Congress. There are
certain districts in the House that are black districts by law just about now.
And even the Virginia Senators, they have no interest in voting against this.
The State government is not their government, and they are going to lose --
they are going to lose votes if they do not reenact the Voting Rights Act. Even
the name of it is wonderful: The Voting Rights Act. Who is going to vote
against that in the future?
Shelby County v.
Oral Arg. Trans. 47-48
What does Justice Scalia mean by “racial
entitlement” in this context?
Putting aside the language of
“racial entitlement,” isn’t Justice Scalia right that it was very difficult for
most politicians to vote against the extension of the Voting Rights Act, one of
the crown jewels of the civil rights movement? Once the Court strikes down the
coverage formula, however, it changes the status quo and political
expectations. It now becomes easier for Congressmen and Senators to resist
passing a new version of the VRA on the grounds that the Court has declared parts
of the old version unconstitutional. Which way should this cut? Is the Court’s attempt to shake up political
understandings a good thing or a bad thing?
Changing the coverage formula is hard to
do. One reason why Congress has maintained basically the same coverage
formula for decades is that it was quite difficult for Congress to agree on a
new one. Many legislators did not want their states added to the covered
jurisdictions, and some were opposed to the idea of pre-clearance in general.
Most of the new jurisdictions that would be added were Republican strongholds,
which raised partisan hackles.
The Boerne test, which most legislators thought would apply to any
constitutional challenge of the 2006 re-extension, created additional problems.
Congress had to guess how the courts would apply Boerne to a law like the Voting Rights Act, which was prophylactic,
had already been in operation for years, and applied only to certain parts of
the country. How could Congress show congruence and proportionality in a law
that is already in place? What record of discrimination would be sufficient?The difficulty was that virtually any theory
one might come up with could be employed by a critic to prove the opposite
For example, one might think evidence of
voting rights violations in covered jurisdictions would be helpful in showing
why the act was congruent and proportional.On the other hand, if the act was working well, there might be relatively
few voting rights violations in the covered jurisdictions. That evidence, in
turn, could mean either that the act was necessary or that it was superfluous.
And if the voting rights violations continued, that might suggest that the law
wasn’t working very well.
Moreover, one had to take into
account the fact that the law reached only some parts of the country. Again,
Congress didn’t know what the courts would end up requiring under Boerne.Courts might require a showing that covered jurisdictions were more
likely to violate voting rights than non-covered jurisdictions. But if there
wasn’t a significant discrepancy, or non-covered jurisdictions actually had
more voting rights violations, it might mean either that the act was working
well (because it prevented violations in covered jurisdictions), or that it was
unnecessary. As a result, Professor Nathaniel Persily explains:
reauthorization decided that the safest course of action was to stick with the
coverage formula that the Supreme Court had previously upheld. Despite the recognized
need to extend coverage to the newest generation of voting rights violators,
constitutional and political constraints prevented any alteration of the statute's
geographic reach. . . . [A]ny change in the coverage formula [created] an additional
gamble on the ability of Congress to predict what types of evidence the Court
would find important. . . . [Therefore] [t]he new Act [did not try] to capture
all of the worst voting rights violators, but rather an effort to capture some
of them and to preserve historic gains where they had been made. [S]upporters
of the Act sought to develop an evidentiary record for the principal purpose of
explaining why the covered jurisdictions should remain covered, rather than
justifying the coverage of certain jurisdictions but not others.
Persily, The Promise and Pitfalls of the New Voting Rights Act, 117 Yale L.J.
174, 193-95 (2007).
Political incentives also help explain
why the Voting Rights Act’s reauthorizations have been for increasingly longer
periods.A twenty-five year
reauthorization, unlike the original five-year reauthorization in 1965, allows
politicians to kick the can down the road and not have to take up very messy
questions. Twenty-five years is longer than the careers of most national politicians
and covers two to three reapportionment cycles. In addition, many politicians
have adjusted to the status quo, just as they did to the reapportionment doctrines
that began with Reynolds v. Sims. Many
politicians may conclude that it is better to live with the current coverage formula
than risk a new status quo that might undermine their interests.
Finally, the Voting Rights Act creates
cross-cutting alliances between the two major political parties. The Act gives
incentives for Republicans to pack as many Democratic leaning voters as
possible into districts virtually guaranteed to elect minority representatives.
This allows Republicans to create a relatively larger number of districts dominated
by conservative, white, and rural voters who are likely to elect Republicans to
office.The status quo thus appeals to
some conservative Republicans who would otherwise oppose elements of the act,
as well as to Democrats who want to maximize minority representation,
especially in the South.
Remedies after Shelby County.Many political observers are skeptical that
the current Congress, which is ideologically polarized, can come up with a new
coverage formula.The House of
Representatives, controlled by the Republican Party, is a considerable ideological
distance from the Democrats who control the Senate.In addition, the Senate filibuster rules,
which now require 60 votes on any seriously contested legislation, may make
If the VRA actually serves the status
quo, won’t politicians of both parties have an interest in coming up with
something that approximates it?On the
other hand, once the status quo is dissolved, the effect of doing nothing
changes, and so too does the calculus of interests. Collective action problems
may result in inertia, even if the previous system was somewhat more desirable
for many politicians.
Note, however, that lawsuits under
section 2 of the Voting Rights Act are still available to protect minority
voting rights, although they are expensive and time-consuming and lack the advantages
that made pre-clearance such an effective remedy. In addition, section 3(c) of
the Voting Rights Act allows a court in a successful voting rights lawsuit
involving a non-covered jurisdiction to impose preclearance requirements on that
jurisdiction for a specified period of time.Section 3(c) thus allows voting rights litigation to temporarily create
a new set of covered jurisdictions. Under Shelby
County’s new doctrine of equal sovereignty, is Section 3(c) constitutional
because it involves a court order premised on a previous violation of law as
opposed to congressional findings of voting rights violations under section 5?
The Elections Clause. Another
possible source of congressional power to protect voting rights is the
Elections Clause of Article I, § 4, cl. 1: “The Times, Places and Manner of
holding Elections for Senators and Representatives, shall be prescribed in each
State by the Legislature thereof; but the Congress may at any time by Law make
or alter such Regulations, except as to the places of chusing Senators.”Although the Elections Clause does not
concern election of state officers, states normally hold elections for both
state and federal offices on the same day so in practice federal regulations
will set the norm.
In Arizona v. Intertribal Council of
Arizona, 133 S. Ct. 2247 (2013), the Supreme Court held, 7-2, that Arizona's
requirement that voters seeking to register provide documentary evidence of
citizenship was preempted by the National Voter Registration Act of 1993. The
NVRA prescribes a federal registration form that requires that a registrant
aver that he or she is a citizen, but does not require documentary evidence of
Justice Scalia's majority opinion
explained that under the Elections Clause Congress had plenary power to
displace state law with respect to how federal elections would be conducted,
but it did not give Congress the power to impose different voter qualifications
than the states: “[T]he Elections Clause empowers Congress to regulate how federal elections are held, but not who may vote in them.” This statement is
inconsistent with the judgment of Oregon
v. Mitchell, which held that Congress could, by statute, give 18 year olds
the right to vote in federal elections.Justice Scalia explained, however, that although a majority of Justices
agreed that Congress could pass such a law, four relied on Congress’s powers
under section 5 of the Fourteenth Amendment, and only Justice Black relied on
the Elections Clause.
Could Congress have passed—or could
it reenact—section 4 of the Voting Rights Act under the Elections Clause?Note that under the Elections Clause,
Congress could not require preclearance of changes in voting rules affecting
only state and local government offices—and a very large number of preclearance
issues concern elections for state and local officials.In addition, Congress could not require
preclearance of changes in voter eligibility rules, only changes in the way
that states proved eligibility to register or vote, the kinds of voting
machines used, the number and location of polling places, the hours and days
available for polling, and so on.For
example, Congress could probably not require preclearance of voting rules that
disenfranchise felons, but it might be able to regulate how states purge voter
rolls of suspected felons and non-citizens.
Council of Arizona Justice Scalia stated that Congress's power over the “Times,
Places and Manner” of congressional elections “is paramount, and may be exercised
at any time, and to any extent which it deems expedient; and so far as it is
exercised, and no farther, the regulations effected supersede those of the
State which are inconsistent therewith.” (quoting Ex parte Siebold, 100 U. S.
371, 392 (1880)).How would Shelby County’s new “equal sovereignty”
principle interact with this test?