Richard L. Hasen publishes Election Law Blog and is Chancellor’s Professor of Law and Political Science at UC Irvine.

A funny thing happened between the Supreme Court’s 2009 opinion in NAMUDNO v. Holder, sidestepping the question of the constitutionality of Section 5 of the Voting Rights Act, and the Court’s new Shelby County decision effectively striking it down on a five-to-four basis: the Court majority failed to expressly resolve an open question of how to scrutinize Congress’s power to enforce the Fifteenth amendment in voting rights cases. It is not clear what that means for challenges to other voting and civil rights provisions going forward, but the Court for now seems to have foreclosed greater deference for voting decisions under Congress’s Fifteenth amendment powers. That could spell trouble for Section 2 of the Voting Rights Act, Section 203 of the Act (the language provisions), and other laws aimed at preventing race discrimination in voting.

In South Carolina v. Katzenbach, a case from the 1960s initially upholding the Voting Rights Act Section 5, the Court endorsed a “rational basis” standard of review which gave Congress broad Fifteenth Amendment powers to pass anti-discrimination voting laws. That’s no surprise: the whole point of the Fifteenth Amendment was to stop racial discrimination in voting and it was going to take the federal government to bring the former Confederacy into line.

But in NAMUDNO, the Court raised the possibility that a line of Fourteenth Amendment power cases beginning with City of Boerne v. Flores could apply now to review of voting rights. The Boerne test is much tougher on Congress, requiring that it pass laws burdening states only when Congress demonstrates with admissible evidence (to the satisfaction of the Court, not itself) that there is evidence of significant unconstitutional conduct being undertaken by the states and that the means Congress chooses to address it are “congruent and proportional” to the constitutional violations.

Here’s how the Court sidestepped the issue in NAMUDNO:

 The parties do not agree on the standard to apply in deciding whether, in light of the foregoing concerns, Congress exceeded its Fifteenth Amendment enforcement power in extending the preclearance requirements. The district argues that “ ‘[t]here must be a congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end,’ ” Brief for Appellant 31, quoting City of Boerne v. Flores, 521 U. S. 507, 520 (1997) ; the Federal Government asserts that it is enough that the legislation be a “ ‘rational means to effectuate the constitutional prohibition,’ ” Brief for Federal Appellee 6, quoting Katzenbach, supra, at 324. That question has been extensively briefed in this case, but we need not resolve it. The Act’s preclearance requirements and its coverage formula raise serious constitutional questions under either test.

Perhaps the biggest surprise of Shelby County is that the majority purported to ignore this Boerne issue. The majority does not even cite to Boerne even though this has been a key issue involving the constitutionality of Section 5 for years.  (I first wrote about the issue in 2005, even before the 2006 renewal.)  Here’s all that the Court has to say in Shelby County on the standard of review, in its first footnote: “Both the Fourteenth and Fifteenth Amendments were at issue in Northwest Austin . . . and accordingly Northwest Austin guides our review under both Amendments in this case.”

The failure to set the standard of review is no mere oversight by Chief Justice Roberts. The footnote appears deliberately inscrutable: the Court sidesteps an issue about the standard of review in Case 1, and in Case 2 the Court endorses Case 1’s analysis of the standard of review. And the rest of the opinion is not helpful either: the equal federal sovereignty analysis which the Court uses to kill Section 5 of the VRA is a Bush v. Gore-like one-day-only ticket.  Few other voting laws fit this pattern (though one could imagine the language provisions of the Voting Rights Act in Section 203 falling under this analysis).

I presume the Chief Justice obfuscated the standard of review in this case as a time bomb: in a future case he could cite to NAMUDNO and Shelby County fn. 1 for the proposition that the Court has held that the Fourteenth and Fifteenth amendment standards are the same, and then bootstrapping the Boerne standard into a Fifteenth Amendment case. Saying so directly would have made today’s controversial decision even more provocative than it is; obfuscation better serves the Chief Justice’s attempt to portray his decision as an act of judicial modesty rather than a radical restricting on Congress’s power against the states (more on that in my op-ed for The New York Times). A future opinion can still look back on the obscure footnote as having resolved a key issue. The time bomb explodes.

If that prediction’s right, then I expect to see new challenges to Section 2 of the Voting Rights Act (which applies nationwide) and other voting laws on grounds they exceed Congress’s Fourteenth and Fifteenth Amendment voting powers. (Watch as conservatives move the goalposts here: a key argument against Section 5 was that it was not needed thanks to Section 2.  But now that Section 5 has fallen, I expect lawsuits to next challenge the constitutionality of Section 2.)

How successful these new attacks on voting rights are likely to be depends upon the future of the Court.  Liberals have to hope that the slow moving train of conservative jurisprudence will move slowly enough to await the departure of Justice Kennedy or Justice Scalia during the administration of a Democratic president, at which point the liberal Justices can turn the train around and rightly proclaim that Shelby County never expressly endorsed the tough Boerne standard for voting cases.

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

Recommended Citation: Rick Hasen, The curious disappearance of Boerne and the future jurisprudence of voting rights and race, SCOTUSblog (Jun. 25, 2013, 7:10 PM), http://www.scotusblog.com/2013/06/the-curious-disappearance-of-boerne-and-the-future-jurisprudence-of-voting-rights-and-race/