John Neiman is the Alabama Solicitor General.
Like many of you, I spent most of my Tuesday working on cases that were not at the Supreme Court. But from time to time, I found a spare moment to glance through my office window, to look out over the Montgomery church where Dr. King once was pastor, and to think about Shelby County v. Holder.
For all the talk about how momentous the decision will be, the Court’s actual holding was quite narrow. The Court didn’t say that the civil rights struggle is so far behind us that the preclearance mechanism no longer makes sense. Nor did the Court say that Congress can’t distinguish between states when it decides who is subject to preclearance. The Court simply held that the particular way Congress is currently distinguishing between states, based on numbers that are now almost fifty years old, is irrational.
That conclusion strikes me as pretty much unassailable. I have yet to see a persuasive argument defending the current formula. Indeed, some of Section 5’s staunchest advocates have been criticizing the formula for years, saying that it leaves too many states out. I suppose the best argument against the Court’s decision focuses on judicial restraint, urging that the Justices should have deferred to our democratically elected representatives rather than decide for themselves whether the formula made sense. But I seriously doubt that anyone who is making that argument against Shelby County actually believes it. After all, most of these same people were very much hoping that the Court showed no deference to democratically elected representatives when it came to the decision in the DOMA case released Wednesday.
Most of the criticism of the Shelby County decision seems to be aimed not so much at its legal analysis as the practical result to which that analysis may lead. If it were clear that Congress was going to fix the formula, far fewer people would be saying the Court did something profoundly wrong here. But what people really seem to be concerned about is the prevailing wisdom that Congress will not take this step. Whether or not the prevailing wisdom is true, this concern strikes me as an exceptionally weak ground for criticizing the Court. The formula was either irrational and thus unconstitutional, or rational and thus legally valid. Whether Congress has the political will to fix the problem was not a question that was before the Justices.
It certainly appears that some members of Congress want to fix Section 4(b), and it will be interesting to see what they propose. Any rational formula is not going to cover the same states as the old one. In fact, a new formula keyed to updated versions of the stats on which the original formula turned – minority voter registration and turnout – might cause a turnabout of considerable magnitude. These numbers are substantially better for minorities in many of the states originally covered by Section 5, and substantially worse in many states that have never had to preclear their laws. So a revised formula that focused on these numbers might require preclearance in states like Massachusetts, Washington, and Colorado. Perhaps this is why so many people say that a revision is not going to happen.
Regardless, those of us who work in state government have to operate on the assumption that Section 5 no longer requires preclearance. We will know more about what this means in coming weeks and months, but I do want to say, at the outset, that I am not at all persuaded that Section 5’s demise will usher in a new era of Section 2 litigation. Some have suggested that Section 5’s burdens will just be replaced by new burdens the states will assume as they defend lawsuits, brought by DOJ or private parties under Section 2, to challenge voting changes DOJ previously would not have precleared under Section 5. I’d be more convinced that this would happen if DOJ had regularly been blocking Alabama’s laws. But DOJ has not objected to a state-wide submission from the Alabama state government in sixteen years. Even including submissions from county and municipal governments, DOJ appears to have objected to only 0.06% of submissions by Alabama governments in the decade leading up to Section 5’s reenactment. So it is difficult to see how the Court’s decision will have any effect on the number of Section 2 lawsuits Alabama has to defend.
At the end of the day, the fundamental problem with the coverage formula, focused as it was on conditions that were present in 1964, was its failure to account for contemporary conditions such as these — the paucity of DOJ objections in places like Alabama, the superiority of registration and turn-out rates in covered jurisdictions, and the fact that so many of the covered states’ leaders were not even born in 1964. I for one earnestly hope that we are at a point in our history where we don’t need a coverage formula. There shouldn’t be uncovered states and covered states; there should be the United States. But if Congress believes it is still necessary to divide the country in this way, the Court was at the very least right to say that the division must happen under a formula that accurately reflects the different realities under which Americans are living today.