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Wednesday, June 26, 2013

A Good Day for Equal Justice Under Law

Chief Justice John G. Roberts delivers the opinion of the Court in Shelby County v. Holder. (Art Lien)
Yesterday, the Supreme Court rendered an important, long-overdue and unfortunately necessary decision that galled a lot of Americans who want to continue living in the past. In Shelby County v. Holder, a five-justice majority held that Section 4 of the Voting Rights Act of 1965 is unconstitutional. Here’s a brief background on the case:

            § 5 of the Voting Rights Act requires some States and localities to obtain federal permission before enacting any law related to voting. § 4 of the Act sets forth the formula for determining which jurisdictions are subject to that preclearance process. (Currently, that meant Virginia, South Carolina, Georgia, Alabama, Mississippi, Louisiana, Texas, Arizona and Alaska and portions of New York, North Carolina, Florida, Michigan, South Dakota and California.) In 2010, Shelby County, Alabama sued the Attorney General, seeking a declaratory judg­ment that §§ 4(b) and 5 of the Voting Rights Act are facially unconstitutional, as well as a permanent injunc­tion against their enforcement. The District Court rejected the county’s argument and upheld the Act. The Court of Appeals for the D. C. Circuit affirmed the District Court’s judgment.

The Court’s ruling today means that Section 4’s formula can no longer be used as a basis for subjecting jurisdictions to pre­clearance under the Voting Rights Act. SCOTUSblog Editor Amy Howe broke down the Court's ruling and its immediate implications thusly:
The Chief Justice delivered the opinion of the Court, which was joined by Justices Scalia, Kennedy, Thomas, and Alito. The Court began by acknowledging that when the Voting Rights Act was enacted, it “employed extraordinary measures” – in the form of restrictions on the independence of the covered states – to combat the “extraordinary problem” of widespread voter discrimination. In 1966, the Court explained, these restrictions, which were intended to be temporary, were justified, and the formula used to determine who should be covered “made sense” then.
But today, fifty years later? Not so much. In the Court’s eyes, “things have changed dramatically.” When judged by a variety of measures – such as voter registration, voter turnout, and the number of African Americans elected to office — conditions have improved significantly in the states that are covered by the preclearance requirements. The Court agrees that these changes “are in large part because of the Voting Rights Act”; despite those improvements, the Court complains, the formula that determines who must comply with the preclearance requirement is “based on decades-old data” and practices – such as literacy tests – that were long ago abandoned. Because it isn’t fair for Congress to “rely simply on the past” to single out a few state and local governments for unequal treatment “based on 40-year-old facts having no logical relationship to the present day,” the coverage formula cannot stand.
The last section of the Court’s opinion is the judicial version of throwing the Voting Rights Act ball back across First Street N.E. to Congress. Emphasizing that invalidating a federal law is one of its most serious responsibilities, and that it “do[es] not do so lightly,” the Court makes clear that in its view, only Congress is to blame here. Four years ago, it warned Congress that the constitutionality of the law was in doubt; “Congress could have updated the coverage formula” then, but it failed to do so. “Its failure to act,” the Court explains, “leaves us today with no choice but to declare [the coverage formula] unconstitutional.”
What Howe is referring to in the last two sentences of that excerpt is the court's 2009 decision in Northwest Austin Municipal Utility District No. 1 (NAMUDNO) v. Holder, in which a Texas utility district challenged the constitutionality of the preclearance provisions of the Voting Rights Act. In that case, the Court bypassed the constitutional question and ruled that the statute allowed the utility district to seek bailout from the Act’s coverage. But the Court did something else, too: in an opinion delivered by Chief Justice Roberts and joined by all the associate justices except Justice Thomas, the Court acknowledged that it had already upheld the Act’s constitutionality in prior decisions but noted, “Some of the conditions that we relied upon in upholding this statutory scheme ... have unquestionably improved.” And, while conceding that these “improvements are no doubt due in significant part to the Voting Rights Act itself,” the Court admonished that “[p]ast success alone, however, is not adequate justification to retain the preclearance requirements,” adding, “It may be that these improvements are insufficient and that conditions continue to warrant preclearance under the Act. But the Act imposes current burdens and must be justified by current needs.”

Rather than heed the Court’s warnings and prod Congress to revise the formula in § 4 (as he’s so fond of doing when it comes to other policy issues), President Obama was content to leave the Act as is and let his Justice Department defend a constitutional challenge to a law the Supreme Court had as much as told us was unconstitutional. Unsurprisingly, the Respondent in Shelby County had a difficult time explaining how the Act’s ridiculously outdated formula and inequitable treatment of different states and localities was “justified by current needs,” and today, the Supreme Court officially recognized what Congress and the President should have recognized years ago: § 4 of the Voting Rights Act exceeds Congress’s constitutional authority.
Section 1 of the Fifteenth Amendment to the U.S. Constitution provides, "The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude," and Section 2 grants Congress "the power to enforce this article by appropriate legislation." The central question underlying this and previous constitutional challenges to the Voting Rights Act was whether Sections 4 and 5 were still "appropriate" legislation, in light of their selective treatment of certain parts of the country based on data that no longer accurately reflects the current state of the union. To the extent that the members of Congress who voted to reauthorize the Act--and President Bush, who signed the reauthorization into law--back in 2006 considered the issue, their answer was "Yes, it is."

Thank God for judicial review. (Well, thank the Marshall Court, but their decision in Marbury v. Madison was probably guided by divine providence anyway.) As the Court ruled yesterday, “The Fifteenth Amendment . . . is not designed to punish for the past; its purpose is to ensure a better future.” The majority stopped short of drawing a bright line or laying out a clear standard for determining what constitutes "appropriate legislation" under Amendment XV, but they rejected the notion that Congress is entitled to absolute deference on that subject (and for good reason).

During oral arguments before the Court in February, U.S. Solicitor General Donald Verrilli insisted that the court shouldn't second-guess Congress's determination that certain areas require special oversight to prevent violations of the 15th Amendment's guarantee of voting rights. But why, if the basis of that determination is patently irrational? The formula for selecting jurisdictions covered by Section 5 was last updated based on the 1972 election resultsCongress had more than forty years to revise this formula based on more current data. Its failure to do so meant that certain states were left stigmatized as backwards regions of the country that couldn't be trusted to regulate their own elections without federal oversight, that stigma written into federal law and used as a pretext for subjecting these jurisdictions to onerous burdens and an indignity that most of the country doesn't have to suffer. Furthermore, why shouldn't the state and local governments who enacted changes to their voting laws be afforded the same deference as Congress? No one defending Section 4 could provide a satisfactory answer to that question, either.

If you think like me, then you had two specific inquiries about the Court's decision in Shelby County: (1) How did Justices Ginsburg and Breyer, who dissented from the Court's decision yesterday, square their dissent with the Opinion of the Court in Northwest Austin that laid forth serious constitutional infirmities of the Voting Rights Act, in which they both joined? And, (2) What, if anything, did Justice Clarence Thomas, the only member of the Court to experience life as an African-American in the segregated South, have to say about all this?
I'll answer the second question first. As previously mentioned, Justice Thomas did not join the Opinion of the Court in Northwest Austin; he filed an opinion concurring in the judgment in part and dissenting in part. Basically, he wanted to decide the constitutional issue that the Court had avoided and strike down § 5 as unconstitutional. In explaining why § 5 exceeds Congress' power to enforce the Fifteenth Amendment, the Georgia native wrote, "The extensive pattern of discrimination that led the Court to previously uphold § 5 as enforcing the Fifteenth Amendment no longer exists."

Justice Thomas reiterated that statement in a  opinion yesterday, in which he explained how the Court's own opinion "compellingly demonstrates that Congress has failed to justify ‘current burdens’ with a record demonstrating ‘current needs.’"
As to my other query, Justice Ruth Bader Ginsburg filed an acrid dissent joined by Justices Breyer, Sotomayor and Kagan, in which she said that
 "the Court’s opinion can hardly be described as an exemplar of restrained and moderate decisionmaking. Quite the opposite. Hubris is a fit word for today’s demolition of the VRA."
Respectfully, Madame Justice, striking down a blatantly unconstitutional law is not "hubris." "Hubris" is exhibited by those who believe that certain parts of the country should be treated differently than their co-equal sovereigns because of transgressions perpetrated years ago by people who are long dead. "Hubris" is thinking that the attorney general of the United States, whoever that happens to be at the time, is so enlightened that he/she should be given an effective veto power over laws that were duly enacted by state and local governments, even if that AG happens to be a corrupt hack and perjurer with an obvious chip on his shoulder. Hubris is a fit word for the insolence of those who reauthorized the Voting Rights Act, outdated criteria and all, for another 25 years back in 2006 without amending it to reflect recent changes and trends. "Hubris" is dismissing the serious issues with the Act's constitutionality explicitly raised in an opinion you joined as mere "dictum", which you did in your dissenting opinion yesterday.

If I sound especially passionate about this, then it's because I am. It's not just because I live in Texas, one of the states required to get approval from the federal government to before making any changes to its voting laws or procedures, "even for something as seemingly innocuous as moving a polling place across the street." as Amy Howe put it. Anyone who believes in states' rights (or, for that matter, who respects the Tenth Amendment) should find a law that requires state and local governments to obtain federal approval before enacting policies to address local issues revolting. Chief Justice Roberts quite rightly called this requirement “a drastic depar­ture from basic principles of federalism” and the untenable application of it to only select jurisdictions “an equally dramatic departure from the principle that all States enjoy equal sovereignty.” 

I know that the term "states' rights" has a negative connotation in some pockets of the country (and some people's minds), but the principle that all U.S. states are equal sovereigns and that their governments should have as expansive a police power to regulate matters within their jurisdictions as the people of those states empower them to, unencumbered by an oppressive federal government that is not and cannot be as attuned to local concerns as the elected policymakers in those states are, was written into our Constitution--and recognized by the Supreme Court since the first time it addressed the issue--for a reason. If the framers of the Constitution had wanted the Department of Justice to have oversight over state and local voting regulations, then they could have included a provision stating as much, and if the drafters of the Fifteenth Amendment had intended for Congress to have unquestionable discretion to determine what legislation was an "appropriate" means of enforcing the Fifteenth Amendment, then they could have made that amendment more specific. But they didn't.

It seems discordant that self-styled "progressives" were upset with the Court's decision in Shelby County. President Barack Obama and his attorney general both said they were "deeply disappointed" by the ruling. (The president even took care to remind us that "voting discrimination has been historically prevalent" in the places affected by Section 4, which evidently means it's okay for the federal government to perpetually treat those states as bastions of racism and ignore both the progress they've made and any real, actual attempts at voter discrimination in other parts of the country in the last 41 years.) Rev. Jesse Jackson called it “the most devastating blow to civil rights since” Plessy v. Ferguson and complained that it “seeks to destroy the infrastructure of ... inclusion and expansion.” The New York Times Editorial Board wailed that the Court had "eviscerated enforcement of the Voting Rights Act, in which Congress kept the promise of a vote for every citizen."
These people should take a look at what is inscribed aboved the pillars on the front of the Supreme Court Building the next time they have occasion to visit it (or just look at a picture of it). As Jonathan Tobin wrote for Commentary

The reality of 2013 is that even the left is hard pressed to find anyplace in the country where anyone who is legally entitled to vote and wants to exercise their franchise is being prevented from doing so. Stating that is not to deny that racism still exists in some quarters of American society anymore than any other species of hatred. Nor does it imply that our electoral system is perfect or incapable of betterment. But to leave in place a legal formula that treated some states differently than others solely because of history is not only absurd, it is unconstitutional discrimination. In a country where, as it was argued before the court, Mississippi may have a more healthy voting rights environment in some respects than Massachusetts, preserving the battle lines of the fight against Jim Crow is not only meaningless, it actually hampers efforts to combat illegal practices.
But the main interest of those dedicated to preserving the status quo wasn’t in preventing states from denying a right to vote that is not in question. It was in holding onto their capacity to use federal law to prevent some states from passing voter ID laws that have been wrongly branded as a form of discrimination or voter suppression. The vast majority of Americans—including the members of those groups that civil rights advocates claim will be injured by voter ID laws—think these measures are merely a matter of common sense to ensure the integrity of the election system. But by disingenuously waving the bloody shirt of Jim Crow, the left has sought to brand race-neutral laws like voter ID a form of racism.
Instead of continuing to live in the past and basing their opinions on specters of a bygone era (kind of like the racists whose actions arguably necessitated the Voting Rights Act in the first place), those who claim to support the Voting Rights Act should celebrate its effects and acknowledge that the preclearance requirement of Section 5 is no longer necessary in many of the regions to which it has been applied. If the members of Congress who voted to reauthorize the Act in 2006 and are still serving believe the legislation is necessary and good policy, then they ought to craft a new formula based on current data and practices to determine which areas of the country, if any, need the federal oversight authorized by Section 5.

Should the Congress endeavor to take up such legislation, however, there must be a vigorous debate over whether any law that is selectively applied only to some states and localities, based on constantly changing statistics that will require frequent re-examination, is wise policy. The anachronistic character of these provisions in the Voting Rights Act and the problem of leaving the Act as is was summed up splendidly in the following paragraph of the Court's opinion yesterday:   

In 1965, the States could be divided into two groups: those with a recent history of voting tests and low voter registration and turnout, and those without those charac­teristics. Congress based its coverage formula on that distinction. Today the Nation is no longer divided along those lines, yet the Voting Rights Act continues to treat it as if it were.
It is a disturbing display of dissonance that those who wanted the Court to let Section 4 stand express concern for making sure that all Americans are treated equally under the law, when Section 4 itself stood in affront to that concept. 

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