Shelby County v. HolderThe ineffective scattershot defense of Section 5

The following contribution to our Shelby County v. Holder symposium comes from Hashim Mooppan, an associate at Jones Day and one of the lead authors of an amicus brief filed in support of Shelby County on behalf of John Nix, Anthony Cuomo, and Dr. Abigail Thernstrom.  (The opinions stated herein are his own.)

The similarities and differences among the contributions to this Shelby County symposium are quite interesting.  The contributors who challenge the constitutionality of the 2006 version of Section 5 all focus on the same general defects with the statute, although they of course elaborate on them in slightly varied ways.  By contrast, the contributors who defend the constitutionality of the 2006 version of Section 5 advance myriad different reasons why the statute should survive.  I will address all these contributions in turn, with the goal of demonstrating why the united attack should overcome the scattershot defense.

General agreement among Section 5’s challengers:  Section 5 can no longer be justified in light of Section 2

Christian Adams, Joshua Thompson, Ilya Shapiro, and Hans von Spakovsky all emphasize the same fundamental points that I did in my original contribution – namely, (1) Section 5’s extraordinary preclearance regime has been justified in the past, and can be justified now, only insofar as it targets unconstitutional practices that are somehow beyond the effective reach of Section 2’s ordinary antidiscrimination litigation; and (2) Section 5’s old coverage formula can no longer be so justified given the absolute and relative efficacy of Section 2 in the covered jurisdictions, especially given the excessive burdens and race-consciousness now required by Section 5’s new substantive standard.

I also agree with most of their complementary elaborations on these key issues.  To be sure, there are a few minor sub-issues where I disagree – e.g., Ilya’s suggestion that the relationship between the substantive standards of Section 5 and Section 2 is ambiguous, and Joshua’s suggestion that the new “discriminatory purpose” standard does not pose the same types of problems as the new “ability to elect” “effects” standard – but the basis for my disagreement should be obvious from my original contribution and amicus brief.

Only one disagreement warrants a brief response.  Christian states that only Section 5’s coverage formula, not its substantive standard, is at issue in Shelby County.  To the contrary, though, Shelby County’s brief argues (at pages 8-10 and 25-27) that the amended substantive standard exacerbates the burdens of preclearance on covered jurisdictions, and the government previously conceded in its cert.-stage brief in opposition in Nix v. Holder (at page 28) that the Court in Shelby County could “consider [these] arguments based on the 2006 substantive amendments when assessing the constitutionality of Section 5’s reauthorization.”  Indeed, as Judge Williams’s dissent in Shelby County cogently observed, “it is impossible to assess” whether the coverage formula is “sufficiently related to the problem it targets” without considering the “consequences” and “burdens” of Section 5 coverage under the substantive standard.  (Yet notably, none of the symposium contributors who defend Section 5 here even acknowledge the expanded substantive standard, let alone try to justify it.)

In stark contrast to this general uniformity among Section 5’s challengers, Section 5’s defenders advance conceptually divergent theories.

Defense #1:  The covered jurisdictions are historically bad actors who still discriminate today

Nina Perales vividly illustrates the despicable voting discrimination that historically occurred in the covered jurisdictions and further identifies some recent examples of lingering discrimination there.  But her premise that this sufficiently justifies Section 5 is fundamentally mistaken.

The relevant question is not whether discrimination still exists in the jurisdictions with the worst historical records of discrimination.  Rather, given that Congress itself has implicitly found that Section 2 is adequate to redress the discrimination that exists in the non-covered jurisdictions, the relevant question is whether the discrimination that exists in the covered jurisdictions is sufficiently different that it somehow would defy effective redress under Section 2.  Nina’s contribution does not even attempt to argue that Section 5 satisfies that standard – to the contrary, it perfectly exemplifies why Section 5 cannot satisfy that standard.

In particular, while Nina emphasizes the recent history of voting litigation in Texas, that history actually underscores the effectiveness – indeed, superiority – of Section 2.   First, LULAC v. Perry was itself a Section 2 case, not a Section 5 case.  Second, Section 5 has hindered, not hastened, the quick and efficient resolution of the Section 2 litigation concerning the most recent round of Texas redistricting, as demonstrated by the Supreme Court’s intervention in Perry v. Perez.  And finally, the recent denial of preclearance for Texas’s redistricting plans contains several stark examples of the constitutional defects with Section 5’s amended substantive standard, which I discuss in my amicus brief (at pages 31 and 36-37) and which the government desperately seeks to minimize by confessing error on statutory grounds in its motion to affirm in part (at pages 19-20 and 26-31).

Defense #2:  There is more discrimination in the covered jurisdictions than in the non-covered jurisdictions

Ellen Katz and Spencer Overton both emphasize evidence based on which Congress could conclude that discrimination is concentrated in the covered jurisdictions – most notably, that there are more reported successful Section 2 lawsuits in covered jurisdictions than in non-covered jurisdictions, notwithstanding the fact that Section 5 presumably blocks and deters some discriminatory voting practices from being implemented in the first place.  Again, however, their premise that this sufficiently justifies Section 5 is fundamentally mistaken.

The relevant question is not whether there is more discrimination in the covered jurisdictions than in the non-covered jurisdictions.  Rather, the relevant question is whether any difference in discrimination somehow renders Section 2 uniquely ineffective in the covered jurisdictions – and ironically, the negative answer to that question is conclusively provided by the very study of successful Section 2 suits in the covered jurisdictions that Ellen and Spencer invoke.

Importantly, when South Carolina v. Katzenbach first reviewed the coverage formula, it likewise eschewed simplistic comparisons of the mere amount of discrimination in various jurisdictions.  In particular, it deemed “irrelevant that the coverage formula excludes certain localities which do not employ voting tests and devices but for which there is evidence of voting discrimination by other means,” because those other types of discrimination were not “the evil for which the [VRA’s] new remedies were specifically designed.”  So too now, the relevant question remains whether the coverage formula properly targets any jurisdictions which still exhibit “the evil for which [preclearance was] specifically designed” – namely, to quote Katzenbach again, whether the formula properly targets the jurisdictions where “case-by-case litigation [is] inadequate to combat widespread and persistent discrimination in voting” because of “the inordinate amount of time and energy required to overcome the obstructionist tactics invariably encountered in [such] lawsuits.”

Defense #3:  “Bail-out” saves the coverage formula

Ryan Emenaker responds to attacks on the coverage formula’s current lack of tailoring by emphasizing the “bail-out” mechanism that mitigates the statute’s over-inclusiveness.  But “bail-out” cannot save an otherwise irrational coverage formula.

If Congress had arbitrarily imposed Section 5 only on jurisdictions east of the Mississippi River, no one could possibly argue that such an irrational coverage formula was constitutional so long as it was paired with a “bail-out” mechanism.  Yet imposing Section 5 coverage on jurisdictions that were the worst discriminators more than three decades ago is nearly as irrational.  It is akin to the 1965 Congress specially targeting the jurisdictions who were the worst discriminators in the 1920s and 1930s.  Thus, as Professor Nathanial Persily observed in a law review article quoted by the Supreme Court in Northwest Austin v. Holder, “[t]he most one can say in defense of the [coverage] formula is that it is the best of the politically feasible alternatives or that changing the formula would … disrupt settled expectations.”

Moreover, “bail-out” cannot possibly solve the coverage formula’s under-inclusiveness – i.e., the fact that numerous non-covered jurisdictions are indisputably worse than many of the covered jurisdictions.  To be sure, other defenders of Section 5 often respond to this objection by pointing to the separate mechanism that allows federal courts to “bail-in” a jurisdiction as a remedy for adjudicated constitutional violations.  But it is patently irrational to try to capture non-covered jurisdictions where case-by-case litigation is inadequate by requiring that a successful lawsuit be brought.

Defense #4:  The coverage formula need not treat states equally

Zachary Price responds to attacks on the coverage formula’s current lack of tailoring by arguing that the Constitution does not actually require Congress to treat the states equally at all, notwithstanding Northwest Austin’s strong suggestion to the contrary.  To be sure, Zachary makes a powerful case that the Constitution contains no generally applicable mandate for equal congressional treatment of the states.  But he overlooks that the Reconstruction Amendments do not themselves authorize legislation that unjustifiably discriminates among the states.

In particular, the Reconstruction Amendments grant Congress the power to “enforce” their substantive provisions only through “appropriate” legislation.  And City of Boerne v. Flores held that this requires “a congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end.”  As Boerne further recognized, relying in part on Katzenbach itself, geographic tailoring may be necessary to ensure a sufficient fit.  And that is particularly true in the context of Section 5’s outdated coverage formula, which, like in Boerne itself, now appears “to attempt a substantive change in constitutional protections” – here, by rewarding minority voters in jurisdictions with past histories of discrimination with an affirmative-action-like scheme of racial preferences for current voting practices.

Defense #5:  The Elections Clause independently supports some applications of Section 5

Daniel Tokaji seeks to avoid the constraints of the Reconstruction Amendments by arguing that Section 5’s application to local voting practices concerning federal elections is independently authorized by the Elections Clause.  But the government has not even attempted this alternative defense in Shelby County, no doubt aware that the Elections Clause is incapable of pulling a victory from the jaws of defeat under the Reconstruction Amendments.

Most obviously, as Daniel himself recognizes, the Elections Clause plainly does not authorize application of Section 5 to non-federal elections.  But Daniel overlooks that, under Ayotte v. Planned Parenthood, therefore, Shelby County at a minimum would be entitled in this very case to a pre-enforcement as-applied injunction with respect to all non-federal elections, as that narrower relief remains available even though the case was brought as a facial challenge.

Moreover, Section 5’s coverage formula renders the preclearance regime facially invalid even under the Elections Clause.  To be sure, as Daniel (like Zachary) correctly observes, the Elections Clause does not require uniform treatment of the states; indeed, it may not even require the same degree of geographic fit that is necessary under the Reconstruction Amendments as construed in Boerne.  But surely Daniel does not dispute that even legislation under the Elections Clause cannot irrationally discriminate among states – e.g., arbitrarily imposing preclearance only on jurisdictions that are east of the Mississippi or that were the worst discriminators more than three decades ago.  And, for the reasons discussed above, the Supreme Court seems likely to find that the coverage formula flunks even a minimum standard of rationality, especially given Congress’s failure to justify that formula in the three years since the Court emphasized its concerns in Northwest Austin.

Defense #6:  The Supreme Court is too afraid to invalidate Section 5

Michael Pitts finally resorts to realpolitik considerations rather than legal analysis, hoping against hope that the Supreme Court lacks the backbone to weather the inevitable, hysterical claims that it has invalidated the crown jewel of the VRA.  This in fact probably is Section 5’s best shot for survival, but the Court likely will, and certainly should, be unfazed.

The Court has already inoculated itself from any legitimate charge of judicial activism through its opinions in Northwest Austin, which unanimously and unambiguously warned Congress that the 2006 version of Section 5 raises “serious constitutional questions.”  Michael doubts that this warning still has teeth, simply because the Court previously issued similar warnings in Georgia v. Ashcroft and Reno v. Bossier Parish (“Bossier II”).  But that just underscores why the Court’s patience will reasonably have run out by Shelby County:  the 2006 Congress had the gall to abrogate Ashcroft and Bossier II’s warnings about the substantive standard, and Congress now has flouted Northwest Austin’s warning about the coverage formula as well. 

Accordingly, because Congress has ignored the Court’s clear guidance that any preclearance regime must be appropriately tailored to target unconstitutional voting practices that somehow uniquely escape redress under normal case-by-case litigation, the Court is now perfectly positioned to reassert the power of judicial review and to reaffirm that the true heart of the VRA is not Section 5, but rather Section 2.