Online VRA symposium: The Voting Rights Act, judicial review, and congressional deference

The following contribution to our VRA symposium comes from Guy-Uriel Charles, the founding director of the Duke Law Center on Law, Race and Politics and the Charles S. Rhyne Professor of Law at Duke Law.

Voting rights law, policy, and jurisprudence are currently at a crossroads.  Without a doubt, the types of voting discrimination that gave rise to the Civil Rights Act of 1964 and the Voting Rights Act of 1965 have diminished significantly. We have long banished white primaries, literacy tests, and poll taxes.  We no longer have state-sponsored violence against black voters who had the temerity to challenge their second-class existence by daring to register to vote. At the twilight of the nineteenth century and the dawn of the twentieth many states convened political conventions for the express purpose of disenfranchising African Americans.  As this century rose toward its dawn, we elected a black man to the highest office in the land.  The Fifteenth Amendment, which protects the franchise against racial discrimination, is no longer a dead letter, and we can count on its enforcement by federal district court judges – yet another important distinction between the early part of this century and the early part of the last.  The plantocracies and oligarchies south of the Mason-Dixon Line have been supplanted by representative democracies.  In many jurisdictions that are required to preclear their voting changes under Section 5 of the Act, voters of color, especially black voters, register and turn out at rates comparable to whites.  We have come a long way and we should not hesitate to acknowledge and celebrate this progress.

The marked diminution of racial discrimination in voting has been achieved in large part as a consequence of the Voting Rights Act, a direct result of the civil rights movement that broke the legislative gridlock.   Section 4(b) of the VRA targeted the worst offenders, almost all of them in the South.  Surveying the landscape and the progress since the passage of the VRA nearly fifty years ago, one can understand why Chief Justice John Roberts would satisfactorily and portentously proclaim: “Things have changed in the South.” Indeed, they have in many respects.

But in some respects they have not. Stephen Ansolabehere, Nathaniel Persily, and Charles Stewart concluded in their study of the 2008 presidential election that, compared to 2004, white Democratic voters in the states covered by Section 4(b) were less likely to vote for Barack Obama in 2008 than white Democrats in noncovered states.  These results held even after controlling for ideology.  In a thoughtful opinion Judge David Tatel, who authored the majority opinion for the D.C. Circuit panel in Shelby County v. Holder, credited congressional findings on intentional discrimination and Section 5 activity in the covered jurisdiction.   Congress also found that in some covered states, black candidates had had a hard time winning statewide office.  Louisiana, South Carolina, and Mississippi have yet to elect a black candidate to statewide office.  Congress also found that plaintiffs filed more Section 2 lawsuits and were more successful in covered jurisdictions than in non-covered jurisdictions.  The majority in Shelby County concluded that even though we have come a long way, there is still credible evidence that racial discrimination remains a sufficiently active player in the political process.

The question is not whether we have made progress:  we have.  The question is not whether we have eradicated racial discrimination in voting:  we have not.  We are in a moment of transition.  There clearly remain a not insignificant number of white voters who will not vote for a black candidate.  How large this group is, we are not completely sure.  We do not know whether covered jurisdictions will revert to using election laws to depress participation by voters of color if Section 5 is vanquished.  Currently, Section 5 is a barrier – not an insuperable one, but a barrier nevertheless – to electoral changes that may be motivated by partisan politics but have a disparate impact on voters of color in covered jurisdictions.  What types of partisan shenanigans should we expect in a world without Section 5? These are the type of questions for which we do not have ready answers.  We are operating in a world of uncertainty and transition.  Fundamentally, the question is which institution ought to guide voting rights policy at this moment of transition:  should it be Congress or the Supreme Court?  Consider once more the views of Judge Tatel:

The point at which section 5’s strong medicine becomes unnecessary and therefore no longer congruent and proportional turns on several critical considerations, including the pervasiveness of serious racial discrimination in voting in covered jurisdictions; the continued need for section 5’s deterrent and blocking effect; and the adequacy of section 2 litigation.  These are quintessentially legislative judgments, and Congress, after assembling and analyzing an extensive record made its decision: section 5’s work is not yet done. . . .  After thoroughly scrutinizing the record and given that overt racial discrimination persists in covered jurisdictions notwithstanding decades of section 5 preclearance, we . . . are satisfied that Congress’s judgment deserves judicial deference.

This judicial deference is warranted for a number of reasons.  First, Judge Tatel is right that these types of judgments, in moments of uncertainty, are best made by legislatures than by courts.  Second, and perhaps most importantly, the Constitution provides Congress an important role to play in safeguarding both racial equality and voting.  Reconstruction Amendments, the Thirteenth, Fourteenth, and Fifteenth Amendments explicitly designate Congress as the primary guarantor of racial equality.  As between the states and Congress, the Constitution, by text and history, clearly sides with Congress.  Section 2 of the Thirteenth Amendment specifically authorizes congressional enforcement, as does Section 5 of the Fourteenth Amendment and Section 2 of the Fifteenth.  The Twenty-fourth Amendment, which prohibits the denial of the right to vote in federal elections for failing to pay a poll tax, does the same.  Moreover, Article 1, Section 4 explicitly permits Congress to displace any state laws regarding the time, place, or manner of holding elections for Senators and Representatives.  There is no doubt that when it comes to federal elections, Congress is the big dog.  But even with respect to state elections, the Constitution imposes important limits on the states and designates Congress as the institution for guaranteeing those constitutional rights.

The assumption that states are the definite actors on racial equality and voting rights is odd.  Additionally, the assertion that the VRA imposes federalism costs is puzzling.  What explicitly are those costs?  Are the states not subject to Congressional oversight when it comes to voting, certainly in the context of federal elections but also in the context of racial equality, by constitutional design?

Candor compels me to admit that Congress has recently failed to do its job when in 2006 it renewed Section 5 for another twenty-five years.  First, a twenty-five-year extension in the midst of change and uncertainty is irresponsible.  Second, Congress failed to take the opportunity to modernize the VRA and to update the coverage formula.  Many of the issues that challenge the VRA were on the horizon in 2006.  For example, the current kerfuffle over voter identification laws did not spring ex nihilo.  Yet Congress failed to address this and other questions of voting rights policy.  Moreover, the civil rights community has been too fearful of holding on to past gains to plot out a voting rights policy that makes sense for the twenty-first century.   This conservative approach to voting rights policy risks sacrificing substantive achievements on the altar of symbolic gains.  And if the Court strikes down the VRA, those risks will have been for naught.

Though I understand the Chief Justice’s frustration with current voting rights policy, he is focused on the wrong question. The constitutional question is not whether Congress has done an effective job; the question is whether it has the power to promulgate the current VRA.  As Judge Tatel said in Shelby County, there is no evident justification for the courts to substitute their judgment for that of the people’s elected representatives.  The Court would be wrong to revisit NAMUDNO; it should allow the political process to take its course.