The following contribution to our Shelby County v. Holder symposium comes from Michael J. Pitts, Professor of Law and Dean’s Fellow at Indiana University Robert H. McKinney School of Law.

With the Shelby County case, the Supreme Court has provided itself with a “clean” litigation vehicle to strike down Section 5 of the Voting Rights Act.  In academic circles, the conventional wisdom seems to be that the seminal preclearance provision of the Act is a goner.  Indeed, academics are already conducting online forums speculating about what comes next after the Court dismantles Section 5.

But are there any reasons to think that Section 5 might survive?  Although Section 5’s position seems precarious, let’s consider three reasons why Shelby County might turn out differently than the conventional, academic wisdom holds.

Why the wait?

A little less than four years ago, the Supreme Court had Section 5 teed up to be declared unconstitutional.  In Northwest Austin Municipal Utility District No. 1 v. Holder (NAMUDNO), a majority of the Court easily could have sunk the preclearance provision if they so desired.  Instead, the Court opted to engage in a less than credible interpretation of the statute that allowed the Court to duck the constitutional question.  If the Court now is hellbent on using Shelby County to declare Section 5 unconstitutional, why the wait?

Some have suggested that NAMUDNO was a vehicle to provide a warning to Congress that Section 5 would not survive unless it once again revisited the statute and amended it to make it more palatable to the Court.  But this theory has gaps.  The Court had been sending signals – in, for example, Miller v. Johnson (1995), Reno v. Bossier Parish School Board (2000), and Georgia v. Ashcroft (2003) – about its problems with Section 5’s constitutionality for many, many years prior to Congress’s extension of Section 5 in 2006.  .  What was yet another “warning” going to do?  The Court had to know that the votes to amend Section 5 weren’t any more likely to exist in Congress in 2009 than in 2006.

Another theory might be that the NAMUDNO opinion striking down Section 5 would have been a broad constitutional holding.  In contrast, Shelby County provides for a “narrower” constitutional disavowal because the Court “only” will have to strike down as unconstitutional the formula for determining which jurisdictions are covered by Section 5.  In other words, the Court can write an opinion extolling the virtues of Section 5 overall but striking it down for just the “minor” problem of the coverage formula.  Of course, this is a canard, as the likelihood of Congress changing the coverage formula in response to Shelby County is somewhere between zero and none.  Nevertheless, Shelby County may facially provide a more judicially minimalist approach to declaring Section 5 a dead letter.

Honestly, though, what likely has kept Section 5 alive for so long is the discomfort some Justices must have about burying a seminal civil rights law and what sort of big-picture message that would send to the public.  The fact is that whether the Court uses some sort of faux constitutional minimalism to strike down Section 5, the headlines the next day will likely read: “Supreme Court Declares Voting Rights Act Unconstitutional.”  When it comes to public opinion, the details won’t matter.

So maybe the votes just were not there to strike down Section 5 in NAMUDNO.  Maybe a majority of the Justices were worried about what striking down Section 5 would do to the institution’s prestige.  Or maybe Justice Kennedy (or even perhaps Chief Justice Roberts) did not want to have as part of his legacy the fact that he provided the crucial, swing vote to strike down one of the most successful civil rights statutes of all time.  And maybe this has not changed.  Maybe, just maybe, there still aren’t five votes to strike down Section 5.

A more judicious Department of Justice (even under Obama)

The Section 5 process provides two avenues for covered jurisdictions to obtain preclearance:  a federal court in Washington, D.C., or the Department of Justice (DOJ).  The latter institution has done the vast majority of preclearance work and, historically, one of the Supreme Court’s concerns about Section 5 has been the manner in which DOJ has enforced the statute.  For instance, a whole line of constitutional doctrine – the racial gerrymandering doctrine – seemed to be created to deal with what the Court viewed as DOJ’s overly aggressive enforcement of Section 5.  Moreover, Supreme Court decisions involving statutory interpretation in 2000 (Reno v. Bossier Parish School Board) and 2003 (Georgia v. Ashcroft) that made it easier for covered jurisdictions to obtain preclearance also seemed aimed at curbing the power of DOJ.

DOJ enforcement, though, has changed in recent years.  Even though Congress in 2006 overturned the limitations on Section 5 imposed by the Court in Bossier Parish and Ashcroft, DOJ has not gone on a wild binge of preclearance denials – even under an Obama Administration that might be expected to push the envelope of Section 5 enforcement.  By my count, DOJ has denied Section 5 preclearance to a mere eight redistricting plans during the 2010 redistricting cycle.  This is in stark contrast to, say, the 1990s redistricting cycle that brought many, many more denials of preclearance to redistricting plans.

Moreover, DOJ, which defends against preclearances sought by covered jurisdictions in federal court, has not displayed intransigence in its litigation.  DOJ has won victories in the lower courts in cases involving Texas’s redistricting and voter identification law.  And even the supposed “loss” in the South Carolina voter ID case was not really a defeat for DOJ, as the opinions in that case recognized how South Carolina reinterpreted its statute during that litigation to conform to what Section 5 requires.  Importantly, these cases were won in front of not just Democratic judicial appointees but Republican ones as well.

Undoubtedly there are some who would assert that in a few recent instances, DOJ has over-reached –just as there are undoubtedly some who would assert that DOJ has under-enforced Section 5.  Regardless, a fair, holistic assessment would likely point toward the judiciousness of DOJ’s enforcement efforts in recent years – at least compared to the 1990s.

Perhaps, then, the NAMUDNO case from a few years ago was not a message to Congress to amend Section 5.  Perhaps it was actually a message to DOJ to be judicious in its enforcement.  Perhaps DOJ has internalized that message.  And perhaps the Supreme Court will be comfortable with allowing Section 5 to continue and merely use future litigation that comes before it to curb any Section 5 over-reaching by DOJ.

Remember Alabama!

The challenge to the constitutionality of Section 5 of the Voting Rights Act brought by Shelby County, Alabama, contains lots of fodder for technical legal arguments about such things as coverage formulas and congruence and proportionality tests.  But Supreme Court decisions in high-profile cases such as this one sometimes seem to be less about technical legal arguments and more about the atmospherics of the case.  Take, for instance, the Chief Justice’s decision upholding Obamacare or, going back a few years, the late Chief Justice Rehnquist’s opinion enshrining Miranda as a constitutional rule.

The atmospherics of Shelby County are intensely interesting in that the burning question seems to be whether a majority of the conservative justices of the Supreme Court now have the stomach to do what they wouldn’t do in NAMUDNO – strike down Section 5 as unconstitutional.

But in one sense the atmospherics of Shelby County are much worse than NAMUDNO if one was looking to find a less distasteful vehicle to strike down Section 5.  The plaintiff-petitioner in NAMUDNO was a utility district that had no history of voting-related racial discrimination from a state, Texas, that did not even come into Section 5 coverage until the mid-1970s.  In contrast, Shelby County involves a white-flight suburb of Birmingham (remember the firehoses?) from Alabama – the state that provided the major impetus for passage of the Voting Rights Act of 1965 in the first place.  Remember, the scene on the Edmund Pettis Bridge in Selma and the recalcitrance of local registrars elsewhere in Alabama?

To the extent that Section 5 might receive the executioner’s reprieve, it might be saved by the atmospherics that would have the Supreme Court striking down the Voting Rights Act in a case from the state that most influenced passage of the Act in the first place.  While conservative Justices on the Supreme Court often tend not to think a history of discrimination matters much as a justification for civil rights remedies, they might think about how striking down Section 5 in a case from Alabama might play in the narrative of Supreme Court institutional prestige.

At the end of the day, Section 5 may very well not survive Shelby County.  But there are at least some reasons to think that it might.

Posted in Shelby County v. Holder, Featured, The Court and the Voting Rights Act

Recommended Citation: Michael Pitts, Shelby County v. Holder: Reasons to believe, SCOTUSblog (Feb. 11, 2013, 1:17 PM), http://www.scotusblog.com/2013/02/shelby-county-v-holder-reasons-to-believe/