The following contribution to our VRA symposium comes from Richard L. Hasen, professor of law and political science at the University of California, Irvine, and the author of The Voting Wars: From Florida 2000 to the Next Election Meltdown.

The Supreme Court’s 2009 decision in NAMUDNO v. Holder was an invitation to Congress to go back and make changes to Section 5 of the Voting Rights Act to keep the Court from striking down the provision as an unconstitutional exercise of Congressional power. At oral argument, both Chief Justice Roberts and Justice Kennedy – believed to be the key votes in this case – expressed considerable skepticism about requiring only some jurisdictions (mostly in the South) but not the rest of the country to get permission from the federal government for all changes in their voting rules, from redistricting to voter id to moving a polling place. NAMUDNO was in effect a remand, perhaps an act of statesmanship by Roberts, Kennedy, or both, to give Congress more time to rework the Act.  Yet Congress did not respond, and now the Court seems almost certain to take either the Shelby County v. Holder case or another case soon, and likely to strike down the Act. In this post I ask, why did Congress fail to act to fix the Act after NAMUDNO?

The 2006 Amendments to the Voting Rights Act passed the United States Senate by a vote of 98-0 and passed the House 390-33, but there was more intrigue than the lopsided numbers suggest. The story of the 2006 Amendments’ passage is fascinating and well told by Nate Persily and Rick Pildes. Here I focus on just a few key details.

The chair of the House Judiciary Committee, Republican Jim Sensenbrenner, cut a deal on VRA renewal language with the civil rights community and pushed the bill through as a package, fighting all amendments.  There were no serious hearings on the constitutional questions created by the continued use of voter coverage formulas for preclearance that were pegged to voter turnout data in 1964, 1968, and 1972, or by the lack of direct evidence that the covered jurisdictions were more likely than other jurisdictions to engage in overt discrimination on the basis of race in voting. (Of course, if Section 5 was doing its job as a deterrent, there would be no way to find such evidence, a theory that the Chief Justice referred to at oral argument as the theory of the “elephant whistle.”)  A couple of conservative Republican House members from covered jurisdictions offered amendments to change the coverage formula or bailout, but those were beaten back.

Things went somewhat differently in the Senate. Senate Republicans on the Judiciary Committee called a number of liberal law professors (including me) to testify about Section 5’s constitutional vulnerability and ways to fix the Act. The Committee released a report over Democratic objection which all but called Section 5 unconstitutional.  But all the Republican Senators, even those at the hearings who expressed deep reservations about the Act’s constitutionality, voted for its passage, and President Bush signed the Act, keeping preclearance in place until 2032.

After NAMUDNO, something significant changed.  In covered state after covered state, Republican state elected officials started arguing that the Act was unconstitutional and calling for the Court to strike it down as unconstitutional. Texas governor Rick Perry even mentioned preclearance during a presidential debate, saying that the state of Texas was “under assault” from the federal government.  Seven states filed amicus briefs supporting the Shelby County cert. petition.

Part of the reason for the sea change in Republican attitudes is that a Democratic president is in place and controls the Department of Justice, which makes preclearance decisions.  DOJ has blocked controversial voter identification laws in Texas and South Carolina.  It has been fighting restrictive voting laws in Florida. It has threatened to use a different part of the Voting Rights Act in Pennsylvania (not a covered jurisdiction) to block that state’s voter id law.  A Republican can more safely speak out against the Voting Rights Act now, because the argument against the Act can be cast in partisan, not racial, terms.

The upshot of all of this is that state Republican opposition to Section 5 of the Voting Rights Act removes any incentive for Congressional Republicans to seek compromise in Congress to fix the Act.  It may have been true in the past that there were certain Republican Party advantages to supporting the Voting Rights Act. For example, the creation of majority-minority districts could pack reliable Democratic voters into a smaller number of districts, thereby helping Republicans gain legislative majorities. But the political calculus, at least about Section 5 as administered by a Democratic DOJ, seems to have shifted.

For their part, Democrats and the civil rights community have always seemed to be prepared to roll the dice rather than rewrite the Act: Either the Chief Justice will again decline to pull the trigger or Democrats will condemn the Court as a partisan institution if the Court strikes down the Act.  In addition, if Democrats were going to sit down and rewrite Section 5, it is hard to know exactly what it would look like.  What Democrats would actually want – perhaps preclearance covering Ohio and (all of) Florida or preclearance covering the entire nation – would never be accepted by Republicans in Congress.

More broadly, as I show in a forthcoming paper, polarization in Congress has made it harder for Congress to react to Supreme Court rulings with which Congress disagrees.  Although my paper focuses on Congressional overrides of Supreme Court statutory decisions, the same principle applies: it is much harder for Congress to come together in a bipartisan fashion to craft legislation because with moderates of both parties disappearing there is less room for bipartisan compromise.

Crafting legislation which could directly affect who wins and loses elections seems an especially difficult hurdle for Congress. The Supreme Court seems likely to have the last word on whether any form of preclearance will survive.

 

 

Posted in Featured, The Court and the Voting Rights Act

Recommended Citation: Rick Hasen, Online VRA symposium: The Voting Rights Act, Congressional silence, and the political polarization, SCOTUSblog (Sep. 10, 2012, 11:45 AM), http://www.scotusblog.com/2012/09/online-vra-symposium-the-voting-rights-act-congressional-silence-and-the-political-polarization/