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Will Section 5 survive? The Shelby v. Holder argument in Plain English (with audio)

On Wednesday morning, the Court spent seventy-six minutes – well more than the one hour originally allotted – deliberating the constitutionality of Section 5 of the Voting Rights Act of 1965, which requires states and local governments with a history of discrimination to get permission from the federal government before making any changes, no matter how small, to their voting procedures.  (I previewed the issues in the case last week.)  By the time the Justices left the bench that day, it seemed almost certain that five of them would vote to put a halt to Section 5 as it currently operates.

First up on Wednesday morning was lawyer Bert Rein, representing Shelby County in its challenge to the statute.  He began by reminding the Court of its 2009 decision in Northwest Austin Municipal Utilities District No. 1 v. Holder, in which it acknowledged that “the South had changed” and “questioned whether current remedial needs justified” the costs – both financial and to the jurisdictions’ autonomy – of the preclearance requirement.  But Justice Sonia Sotomayor quickly jumped in, observing that even if the South as a whole has changed, Shelby County itself has not.  Because Shelby County’s track record of discrimination at the polls remains poor, she suggested, it “may be the wrong party bringing this” case. 

That comment was the first in a series from the Court’s four more liberal Justices, who may well have believed that their colleagues were poised to strike down all of Section 5 and were hoping to stave off such a decision on the ground that even if it may not be needed in all of the jurisdictions that must comply with it, it is still needed in Shelby County.  Therefore, the thinking goes, Shelby County has no right to challenge the law as it applies to all of those jurisdictions.  Justice Elena Kagan agreed with Sotomayor, telling Rein that, under any formula that Congress could come up with to cover jurisdictions that continued to discriminate, Alabama would still be covered.  But this line of reasoning did not necessarily find much support among the other Justices:  although Justice Anthony Kennedy, who is often regarded as the Court’s “swing vote” in high-profile cases, asked one question that some have interpreted as showing some sympathy for this position, the Chief Justice later emphasized that “Shelby County is just challenging the formula as it applies to” it.

Another theme to which the Justices repeatedly returned at oral argument boiled down to whether Section 5 had done its job and was no longer needed now that the kinds of problems that Congress had originally used to identify the jurisdictions that should be covered by Section 5’s preclearance requirement – for example, poor records in voter registration and voter turn-out for African Americans when compared with whites – have largely been eliminated.  Moreover, who gets to make that decision:  Congress or the courts?

On the first question – whether Section 5 was still necessary – some of the Court’s more liberal Justices were emphatic that even if voter registration and voter turn-out rates have improved in the states covered by Section 5, there is still discrimination at the polls in those states.  Justice Sotomayor asserted that “Section 5 was created . . . because states were moving faster than” litigation could catch up with new kinds of discrimination; “[a]s the courts struck down one form, the states would find another.”  Justice Kagan echoed this sentiment, telling Rein that, when Congress decided to renew Section 5 in 2006, it compiled a very substantial record and concluded that “although the problem had changed, the problem was still evident enough that the Act should continue.”  Justice Ginsburg made the same point:   “Congress said up front:  We know that the registration is fine.  That is no longer the problem.  But the discrimination continues in other forms.”

The Court’s more conservative Justices saw things through a very different lens.  They focused on voting problems in states and local governments that are not required to comply with Section 5’s preclearance requirement, and the perception of injustice that results when jurisdictions with arguably better records are still required to comply.  So when Solicitor General Don Verrilli began his oral argument by emphasizing that when Congress extended Section 5 in 2006, it had before it “a very substantial record . . . of continuing need” for the preclearance provision, the Chief Justice peppered him with a series of questions about voter registration and voter turn-out statistics indicating that Mississippi – which must comply with the preclearance requirement – has a better record than Massachusetts, which is not required to do so.  And Justice Alito asked skeptically whether changes in polling places – which the United States cited as an example of a modern, potentially discriminatory practice for which Section 5 preapproval should be required – were actually “a bigger problem in Virginia [which is covered by the law] than in Tennessee [which is not], or it’s a bigger problem in Arizona [covered] than Nevada [not covered], or in the Bronx [covered] as opposed to Brooklyn [not covered].”

On the question of who should decide whether Section 5 has done its work and run its course, there were different views here too.  In response to a question from Justice Kagan, Bert Rein suggested that although “Congress can examine it [and] . . .  make[] a record,” “it is up to the Court to determine whether the problem indeed has been solved.”  This led Justice Kagan to express surprise:  “Well, that’s a big, new power that you are giving us . . . we have the power now to decide whether racial discrimination has been solved?  I did not think that that fell within our bailiwick.”  Solicitor General Verrilli, by contrast, told the Court that it should defer to Congress’s determination that Section 5 is still necessary because Congress is better at making these kinds of judgments, which “are judgments about social conditions and human behavior about something that the people in Congress know the most about, which is voting and the political process.”  And Debo Adegbile of the NAACP Legal Defense Fund, who argued on behalf of a group of individuals who joined the lawsuit to defend Section 5, added that “[i]t is reasonable for Congress to make the decision that we need to stay the course so that we can turn the corner” on voting discrimination.

In what was certainly the most memorable part of the argument, Justice Scalia strongly suggested that perhaps the Court needed to step in and make this determination because Congress was incapable of doing so objectively.  He recounted how the initial enactment and re-authorization of Section 5 had faced “double-digit” opposition, which slowly faded away until the 2006 vote to reauthorize the provision was unanimous in the Senate and nearly unanimous in the House of Representatives.  He posited that this lack of opposition wasn’t “attributable to the fact that it is so much clearer now that we needed this” but instead was “very likely attributable . . . to a phenomenon that is called perpetuation of racial entitlement.  . . .  [W]henever a society adopts racial entitlements, it is very difficult to get out of them through the normal political processes. . . .  And I am fairly confident it will be reenacted in perpetuity unless . . . a court can say it does not comport with the Constitution. . . .  [I]t’s a concern that this is not the kind of a question you can leave to Congress.”

The Court’s more conservative Justices also explored the possibility that any lingering problems in voting could be addressed through Section 2 of the Act, which allows the government and individuals to bring lawsuits challenging allegedly discriminatory laws or practices – a solution that in some Justices’ eyes would have the added benefit of treating all states equally.  Justice Kennedy led the charge on this point, observing that the government “can very easily bring a Section 2 suit and as part of that ask” to have a jurisdiction “bailed in” – that is, required by court order to follow Section 5’s preclearance requirements.  Rein agreed that lawsuits under Section 2 would be effective and would treat all states equally:  “at this point, given the record, given the history, the right thing to do is go forward under Section 2 and remove the stigma of prior restraint and preclearance from the states and the unequal application [of Section 5] based on data” from 1972.

When it was his turn at the lectern, however, Solicitor General Verrilli disagreed.  Section 2 is not a good substitute for Section 5, he explained, because Section 5 puts the burden on the state or local government to show that the proposed change won’t be discriminatory, and the change can’t go into effect until it is approved.  By contrast, under Section 2, the federal government or individuals have to sue to stop the change, which may take a while, and they have to show that it has a discriminatory purpose.  He offered the example of changes in a polling place, which he noted are “the most frequent type of” change submitted for preapproval and “can be a source of great mischief.”

Although Justice Thomas did not ask any questions at Wednesday’s oral argument, he made clear four years ago in the Northwest Austin case that he would have voted to strike down Section 5.  And the questions and comments from the Chief Justice, Justice Scalia, and Justice Alito strongly hinted that they too would join Justice Thomas on this go-round.  On the other end of the ideological spectrum, the comments by the Court’s four more liberal Justices all pointed toward a vote to keep Section 5 intact.  That leaves, as it so often does, the vote of Justice Kennedy.  And although at least one of his questions has been interpreted as signaling support for the law, for the most part his comments and questions left the overwhelming impression that he too would be inclined to rule in favor of Shelby County.

Will the Court ultimately do so?  And if so, what will the contours of its decision be?  The Justices have already voted on those questions, but the rest of us won’t know until the Court releases its opinion – which probably won’t happen until late June.  When it does, we’ll be here to cover it in Plain English.

Recommended Citation: Amy Howe, Will Section 5 survive? The Shelby v. Holder argument in Plain English (with audio), SCOTUSblog (Mar. 6, 2013, 8:54 PM),