Saturday, July 20, 2013

Teaching Materials for Shelby County v. Holder


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.


1. 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.
Shelby County 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

2. 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?

3. 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.”

4. 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?

5. 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.

6. 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?

7. 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.

[T]his last 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 political processes.

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. Holder, 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?

8. 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 conclusion.
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:

Supporters of 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.

Nathaniel 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.

9. 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 compromise difficult.
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?

10. 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 citizenship.
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.
In Intertribal 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?

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