A divided federal appeals court panel on Friday upheld Congress’s 2006 extension of a key provision of the Voting Rights Act (VRA) of 1965, setting the stage for an expected showdown over the civil rights law at the US Supreme Court.
Section 5 of the VRA requires states, counties, and other jurisdictions with a history of discrimination in elections to obtain pre-approval from Washington before enacting any changes to election procedures that might undercut minority voting.
The US Court of Appeals for the District of Columbia voted 2 to 1 to throw out a lawsuit filed by Shelby County, Alabama that challenged the reauthorization of Section 5. Lawyers for the county argued that Congress was not justified in automatically reimposing the Section 5 requirements on the same states and jurisdictions identified as egregious discriminators nearly 50 years ago. They say the state is being punished for past problems that no longer exist.
At issue is whether Congress’s decision to extend Section 5 of the VRA for 25 years meets a Supreme Court requirement that the remedy be “congruent and proportional” to the level of discrimination that currently exists in nine states and parts of seven other states covered by the provision.
A federal judge rejected the county’s argument and upheld the statute. On Friday, the appeals court affirmed that result, eliciting praise from civil rights organizations.
“Our job is to ensure that Congress’s judgment is reasonable and rests on substantial probative evidence,” Judge David Tatel wrote in the 63-page majority opinion. “After thoroughly scrutinizing the record and given that overt racial discrimination persists in covered jurisdictions … we are satisfied that Congress’s judgment deserves judicial deference.”
Tatel added: “Does the severe remedy of [Section 5] preclearance remain ‘congruent and proportional’? The legislative record is by no means unambiguous. But Congress drew reasonable conclusions from the extensive evidence it gathered.”
In a dissent, Judge Stephen Williams said the criteria Congress used to decide which states are covered by Section 5 were outdated and did not satisfy a Supreme Court requirement that the measure be “congruent and proportional” to Congress’s remedial goal of fighting discrimination.
Judge Williams said criteria used under the law are based on statistics from 1972. “If the formula were to be updated to use more recent election data, it would cover only Hawaii,” he said.
Judge Tatel said the question isn’t whether the law relies on old data, but whether the criteria continue to identify jurisdictions with the worst problems. “If it does, then even though the formula rests on decades-old factors, the statute is rational,” Tatel wrote.
In 2011, both states adopted voter ID laws patterned on an Indiana voter ID statute that was upheld by the Supreme Court in 2008.
Normally, that existing precedent would be enough to insulate the statutes from legal challenge. But because both Texas and South Carolina are among “covered” jurisdictions with past histories of discrimination under the VRA, both states had to submit the laws to the Justice Department for pre-approval. Despite the Supreme Court precedent in Indiana, the Justice Department blocked both laws.
“Why should voter ID laws from South Carolina and Texas be judged by different criteria from those governing Indiana,” Williams asked.
“Despite a congressional record of over 15,000 pages and 22 hearings, there is little to suggest that [the VRA’s] coverage formula continues to capture jurisdictions with especially high levels of voter discrimination,” Williams said.
The case is expected to be appealed to the Supreme Court. In a 2009 decision, Chief Justice John Roberts raised significant questions about the constitutionality of Section 5 of the VRA. In particular, he questioned the law’s reliance on old criteria that may no longer be relevant.
Some legal analysts read the comments as an invitation for states and other covered jurisdictions to file their own lawsuits seeking to overturn the provision.
“Things have changed in the South,” Chief Justice Roberts wrote. “Voter turnout and registration rates now approach parity. Blatantly discriminatory evasions of federal decrees are rare. And minority candidates hold office at unprecedented levels.”
The chief justice added: “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.”
Election law expert, Richard Hasen, said on his Election Law Blog that he expects Shelby County to file an appeal and for the Supreme Court to hear the case next term.
Mr. Hasen said pending appeals over the Texas and South Carolina voter ID laws might also reach the high court, testing the same issue.
“As to what the court will do,” he wrote, “my money is on the court holding – one way or the other – that Section 5 can no longer be enforced against the covered states.”
Civil rights advocates praised the appeals court decision.
“Today’s ruling is the latest in an unbroken line of cases upholding the constitutionality of the Voting Rights Act’s most effective protection,” Debo Adegbile of the NAACP Legal Defense and Educational Fund said in a statement.
“Some have questioned whether the protection is still needed. The recent efforts to suppress minority voters make it crystal clear that we will need this core voter protection,” he said.
“This is an important victory in the defense of Section 5,” said Barbara Arnwine of the Lawyers Committee for Civil Rights Under Law. “The court properly found that this key provision of the Voting Rights Act is still needed to ensure that minorities can fully exercise their constitutional right to vote free from discrimination.”