Supreme Court Preview: Constitutionality of the Preclearance and Coverage Provisions of the Voting Rights Act Reauthorization of 2006
On Wednesday, February 27, 2013, the Court will hear argument in one of the most significant cases of the current term, Shelby County v. Holder (No. 12-96), a constitutional challenge to key provisions of Congress’s 2006 reauthorization of the Voting Rights Act of 1965. In this case, Shelby County challenges the provisions requiring certain “covered jurisdictions,” primarily the southern states of the old Confederacy, to secure advance approval (“preclearance”) from the Department of Justice or a federal court in Washington, D.C. before implementing any changes in voting or election procedures.
These provisions were enacted after a century of fierce resistance in those southern states, through violence, intimidation, and obstructive and evasive procedures, rendered illusory the Fifteenth Amendment’s guarantee that the right to vote cannot be “denied or abridged…on the basis of race, color or previous condition of servitude.” The preclearance provisions are viewed as the heart of the Voting Rights Act and are credited with the enormous gains in the enfranchisement of black and other minority citizens.
This case addresses constitutional questions raised, but not answered, in the Supreme Court’s 2009 decision in Northwest Austin Municipal Utility District No. 1 vs. Holder. Petitioner Shelby County Alabama maintains that the circumstances that once justified the original preclearance and coverage provisions and subsequent reauthorizations no longer exist to support the 2006 reauthorization. It argues that current evidence of racially discriminatory voting practices in the covered jurisdictions is inadequate to support this invasion of state sovereignty and to justify the disparate treatment between the covered states and other states.
Respondents maintain that while the preclearance provisions have been successful in greatly expanding black and minority enfranchisement, Congress had sufficient evidence of continuing racially discriminatory voting practices concentrated in the covered jurisdictions to justify the 2006 extension of those provisions. Respondents and numerous amici warn that invalidation of those provisions jeopardizes the voting rights gains achieved over the last half century.
In 1868, to provide stronger and sounder authority for its efforts to protect the voting rights of black citizens, Congress passed the Fifteenth Amendment, providing that the right to vote “shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.” To give meaning to that provision the Amendment delegated to Congress the authority to enforce it through “appropriate legislation.” The Amendment was ratified in 1870 and immediately thereafter Congress enacted sweeping enforcement legislation.
Limiting constructions of that legislation by the Supreme Court, the ending of Reconstruction, and the rise of Jim Crow swept away most of this legislation and reversed earlier gains in black enfranchisement. The states of the old Confederacy implemented a series of devices to effectively disenfranchise their black citizens. The Supreme Court struck down some of those practices, but judicial remedies proved largely ineffectual against new and evasive practices of those states and the violence and intimidation that prevented black citizens from exercising the right to vote.
The dramatic violent resistance in those states to renewed efforts to enfranchise black citizens in the early 1960s, including the murders of civil rights workers and the violent suppression of a voting-rights march in Selma, Alabama, finally led to the enactment of the Voting Rights Act of 1965.
Among other things, Section 2 of the Act created a nationwide cause of action to enjoin voting practices or procedures that had the purpose or effect of denying or abridging the right to vote on account of race. Recognizing the limits of case-by-case, after-the-fact litigation, however, the Act also included prophylactic measures limited to those geographic areas with a history of such practices. Specifically, certain temporary provisions of the Act applied only to States and political subdivisions deemed “covered” under Section 4(b) of the Act. Under Section 4(b), a jurisdiction was covered if it “maintained on November 1, 1964, any test or device” prohibited under 4(b) and had less than 50 percent voter registration or participation as of the 1964 presidential election. These criteria were deliberately designed to capture the states of the old Confederacy with the worst history of racially discriminatory voting practices.
Among those provisions applying only to covered jurisdictions, Section 5 of the Act required that either the Attorney General or a three-judge federal court in Washington, D.C. approve in advance (“preclear”) any proposed change to voting or election practices or procedures in a covered jurisdiction to insure that the proposed change “does not have the purpose and will not have the effect of denying or abridging the right to vote on account of race or color.” This preclearance requirement of Section 5 was originally enacted for five years. Recognizing that Section 4(b)’s formula designating covered jurisdictions might be both over- and under-inclusive, the Act included procedures for a “covered” jurisdiction to “bailout” of coverage and for federal courts to “bail in” to coverage a non-covered jurisdiction.
In 1966, the Supreme Court upheld Sections 4(b) and 5 of the Act against a challenge by South Carolina, holding the provisions to be a legitimate exercise of Congress’s powers under the Fifteenth Amendment. In 1970, Congress reauthorized the expiring provisions of the Act for an additional five years and expanded the coverage provisions of Section 4(b) to include jurisdictions that maintained a prohibited “test or device” or had voter registration or turnout under 50% as of the most recent presidential election. The Supreme Court upheld the reauthorization for “the reasons stated at length in South Carolina v. Katzenbach.” In 1975, Congress reauthorized the expiring provisions for an additional seven years and again expanded the coverage provisions of Section 4(b) to include jurisdictions that maintained a prohibited “test or device” or had voter registration or turnout under 50% as of the most recent presidential election. The Supreme Court upheld the 1975 reauthorization, stressing that the “7-year extension of the Act was necessary to preserve the ‘limited and fragile’ achievements of the Act and to promote further amelioration of voting discrimination.” In 1982, Congress reauthorized the Act for an additional 25 years. Congress did not update Section 4(b)’s coverage provision in the 1982 reauthorization. Again in 2006, Congress reauthorized the Act for an additional 25 years (the “2006 Amendments”), without updating 4(b)’s coverage provisions.
Following 21 days of testimony at hearings and thousands of pages of documentary evidence, Congress passed the 2006 Amendments by a vote of 98-0 in the Senate and 390-33 in the House. It did so based on statutory findings that “without the continuation of [the Act’s] protections, racial and language minority citizens will be deprived of the opportunity to exercise their right to vote, or will have their votes diluted, undermining the significant gains made by minorities in the last 40 years.” Among other findings, Congress relied on the existence of so-called “second generation” discriminatory practices in covered jurisdictions, including at-large elections and racial gerrymandering, which have the effect of diluting minority voting power.
The 2006 Amendments also overruled two recent Supreme Court decisions interpreting the Act, Reno v. Bossier Parish School Board and Georgia v. Ashcroft. In Bossier Parish, the Court held that a even if a voting practice change was motivated by discrimination it could not be denied preclearance unless the change was “retrogressive.” And in Georgia v. Ashcroft, the Court held that a proposed redistricting plan was not retrogressive even though it reduced minority voters’ ability to elect minority candidates because it created other so-called “influence” districts in which minority voters would be well-represented. In response to those decisions, the 2006 Amendments clarified that (1) an election change motivated by a racially discriminatory purpose may not be precleared even if it is not retrogressive; and (2) that preclearance should be denied if an electoral change diminishes, on account of race, citizens’ ability to elect their candidate of choice.
Following the 2006 reauthorization, a small Texas utility district, Northwest Austin Municipal Utility District No. One, filed suit seeking to “bail out” of coverage under Sections 4(b) and 5 and, in the alternative, challenging the constitutionality of the 2006 reauthorization. A three-judge federal district court held that the Act’s bailout provisions were not available to political subdivisions like the utility district and rejected the constitutional challenge.
The Supreme Court, in an opinion by Chief Justice Roberts, reversed the bailout holding and declined to reach the constitutional issue. Before reaching its decision, however, the Court indicated that serious constitutional questions concerning Sections 4(b) and 5 might be involved. Chief Justice Roberts acknowledged the substantial improvements in the voting conditions that had justified Section 5’s preclearance provisions. He observed that “[i]t may be that these improvements are insufficient and the conditions continue to warrant preclearance under the Act. But the Act imposes current burdens and must be justified by current needs.”
The Chief Justice further emphasized that the “Act also differentiates between the States, despite our historic tradition that all the States enjoy ‘equal sovereignty.’” Noting that the “evil that Section 5 is meant to address may no longer be concentrated in the jurisdictions singled out for preclearance,” he stressed that “a departure from the fundamental principle of equal sovereignty requires a showing that a statute’s disparate geographic coverage is sufficiently related to the problem that it targets.”  But while noting the Court’s duty to act as a “‘bulwark of a limited constitution against legislative encroachments,’” the Chief Justice invoked the principle of constitutional avoidance and found that the Act’s bailout provision could be interpreted to afford full relief to the utility district and therefore made it unnecessary to address the “difficult constitutional question” “[w]hether conditions continue to justify [sections 4(b) and 5].”
Shelby County Challenges the Constitutionality of the Act
Petitioner Shelby County is a political subdivision of Alabama and has been a covered jurisdiction under Section 4(b) since 1965. In April 2010, it filed suit seeking a declaratory judgment that Sections 4(b) and 5 of the Act are facially unconstitutional and seeking an injunction barring their enforcement. The district court granted summary judgment dismissing this challenge, based on a detailed review of the “extensive 15,000-page legislative record” supporting the 2006 Amendments.
On appeal, a divided panel of the D.C. Circuit Court affirmed. Applying Northwest Austin, the majority, in an opinion by Judge Tatel, held that (1) the record demonstrated current needs justifying the current burdens imposed by Sections 4(b) and 5, and (2) that the record supported a finding that the Act’s “disparate geographic coverage” was “substantially related to the problem that it targets.” In particular, the majority explained that “the record contains numerous examples of modern instances of racial discrimination in voting” in the covered jurisdictions, including numerous DOJ objections to proposed discriminatory voting changes in the covered jurisdictions and successful Section 2 enforcement actions in the covered jurisdictions. The majority considered it a close question whether the record contained sufficient evidence to demonstrate that the formula continues to target jurisdictions with the most serious voting discrimination problems. It concluded, however, that “the legislative Record shows that it, together with the statute’s bail-in and bailout provisions … continues to single out the jurisdictions in which discrimination is concentrated.”
Judge Williams dissented, explaining that even if Congress might be justified in requiring preclearance in some jurisdictions, he would find Section 4(b)’s coverage provision unconstitutional. Judge Williams concluded that there was no meaningful correlation demonstrated between status as a covered jurisdiction and discriminatory voting practices and that the bail-in and bail out provisions did not remedy this deficiency. Accordingly, in his view, Section 4(b)’s coverage formula did not meet the requirements of Northwest Austin.
The Supreme Court granted certiorari to review the judgment of the DC Circuit. 
Shelby County’s Position Before the Supreme Court
In the Supreme Court, Shelby County argues first that Congress was unable to develop a record sufficient to show “‘the widespread and persisting’ pattern of constitutional violations and continuing alteration of discriminatory voting laws to circumvent minority legislation victories that supported preclearance in the first place [and as a result] Section 5’s federalism cost is too great.” It maintains that at most the legislative record shows scattered and limited interference insufficient to sustain Section 5 preclearance. It also argues that Congress’s reliance on “second generation” barriers to voting such as vote dilution was improper because vote dilution does not violate the Fifteenth Amendment and the Court has never upheld Section 5 under the Fourteenth Amendment. Shelby County argues further that preclearance only is directed to interference with ballot access and is not an appropriate remedy for practices that affect the weight of votes cast and that it claims can be effectively addressed by litigation under Section 2 of the Voting Rights Act.
Shelby County then argues that even if preclearance were still appropriate for some of the covered jurisdictions, “section 4(b)’s coverage formula is a wholly inappropriate mechanism for identifying them.” It maintains that coverage under Section 4(b) “continues to depend only on registration and turnout data from 1964, 1968, and 1973, which point to decades-old ballot-access interference.” It maintains that if the statutory benchmarks of the coverage formula – registration and the use of “tests and devices”…. “had been applied to the last three presidential elections Hawaii (which is not covered) would be the only States subject to preclearance.” It further argues that even if “second generation” barriers to voting were considered, those barriers “are not concentrated in the jurisdictions singled out for coverage.” Finally, it argues that the bailout provisions cannot save the coverage formula because satisfying its procedures are so difficult that it is “no more than a mirage.”
Respondents emphasize that “the right to vote is essential to securing the fundamental rights embodied in our Constitution” and that “racial discrimination is the most pernicious form of governmental discrimination prohibited by the Constitution.” Accordingly, they argue, Congress’s authority is “at is zenith” when it enforces provisions of the Fourteenth and Fifteenth Amendments to protect citizens from racial discrimination in voting. It maintains that the legislative record fully justifies Congress’s reauthorization of Section 5’s preclearance provision and its conclusion that it should maintain the existing scope of Section 5’s geographic coverage, and that Congress’s findings in these respects are entitled to great deference.
Respondents detail the extensive record of racially discriminatory voting practices in the covered jurisdictions before Congress, that they maintain demonstrate “current needs” for the preclearance provision. This record shows, they maintain, that since 1982, approximately 2400 discriminatory voting changes had been blocked by more than 750 Section 5 objections and that without Section 5 these voting changes could have been challenged only through case-by-case litigation, a system that would have resulted in years of discriminatory treatment of minority voters pending the outcome of those litigations and would have required an enormous expenditure of resources. Among other evidence before Congress of voting discrimination in the covered jurisdictions, Respondents point to the number of successful suits under Section 2 of the Voting Rights Act filed in covered jurisdictions; continued disparities between minority voters’ registration and participation rates as compared to those of non-Hispanic white voters; the Attorney Generals’ experience in certifying and dispatching election observers; the persistence of severe racially polarized voting in covered jurisdictions that indicates the political vulnerability of racial-minority voting rights; and testimony of experts, voters, and practitioners about ongoing intimidation, harassment, voter suppression and intentionally dilutive practices.
Respondents reject Shelby County’s view that Congress was limited to considering evidence of extraordinary and ingenious strategies involving the creation of new rules to perpetuate voting discrimination to circumvent adverse federal court decrees. It noted that the Court in initially upholding Section 5 recognized that while some states covered under Section 5 engaged in such obstruction, not all covered states were so ingenious or subtle in their discriminatory practices. Instead, respondents argue, Congress and the Court initially focused on the limited effectiveness of case-by-case litigation as a remedy for all forms of racially discriminatory voting practices and that the same deficiencies of case-by-case litigation were found by Congress in its 2006 reauthorization to persist today.
Respondents also argue that evidence of vote dilution is sufficient because Section 5 was enacted pursuant to both the Fourteenth and Fifteenth Amendment. In addition, the Brennan Center filed an amicus brief demonstrating that vote dilution was a concern of the Framers of the Fifteenth Amendment and that the Amendment’s prohibition of racially discriminatory practices that “abridged” the right to vote, was aimed at all direct or indirect efforts that not only deny but diminish minority voting rights.
Respondents then reject Shelby County’s arguments concerning section 4(b)’s coverage formula and its claim that the disparity in treatment of the covered jurisdictions cannot be justified. Respondents argue that despite the fact that Section 5 halts the implementation of many discriminatory practices in the covered jurisdictions, those jurisdictions nevertheless continue to have much more than their proportional share of cases involving discriminatory voting practices. Respondents reject the argument that the objective criteria in Section 4(b) - registration and turnout data and “tests and devices” - were intended to limit the scope of Section 5’s coverage. They argue that Congress already knew which jurisdictions it wished to subject to preclearance and simply “reverse engineered” by selecting objective criteria that would cover those jurisdictions. Respondents maintain that the Supreme Court has long understood that those criteria were not selected because Congress specifically focused on the voting-related concerns the criteria reflect and that Congress sought to address all forms of voting discrimination in the jurisdictions it sought to cover. Respondents argue that the objective criteria were simply a means of describing - without expressly naming - the jurisdictions with a history of widespread and persistent discrimination in voting requiring the prophylactic procedures of Section 5. In sum, Respondents argue, the relevant question in 2006 was not what modern criteria could be substituted for those in Section 4(b), but whether Section 5 is still needed in the covered jurisdictions. On that basis, Respondents maintain, the record shows not only that there is an unacceptable degree of voting discrimination in the covered jurisdictions, but that it also shows that “the evil that Section 5 is meant to address” - racial discrimination in voting - is “concentrated in the jurisdictions singled out for preclearance.” The evidence of this, together with the bailout and bail-in provisions of the Act, respondents argue, are more than sufficient to show that Section 5’s “disparate geographic coverage [remains] sufficiently related to the problem it targets.”
There is no question that in enacting the 2006 reauthorization Congress had before it extensive evidence of continuing racially discriminatory voting practices in the covered jurisdictions. Chief Justice Roberts specifically acknowledged this in Northwest Austin. The interpretation and evaluation of that evidence, the drawing of inferences from it and predictions of the risks of reversal of gains in voting equality that the evidence portends should Section 5 be invalidated, are matters peculiarly within the competence of Congress. As the Chief Justice also emphasized in Northwest Austin, “The Fifteenth Amendment empowers ‘Congress’, not the Court, to determine in the first instance what legislation is needed to enforce it.” For these reasons, Congress’s finding of a continuing need for the preclearance remedy in the covered jurisdictions in entitled to special deference and should be upheld.
It is nevertheless difficult to predict the outcome of this case. The Court in Northwest Austin expressed concerns about the federalism costs of the preclearance and coverage provisions and protecting state sovereignty has been an important theme for the five conservative justices. But the Framers of the Fifteenth Amendment determined that the unique and fundamental importance of the right to vote outweighed federalism concerns and gave Congress the primary role in protecting that right from racial discrimination. As the Supreme Court noted in initially upholding Section 5, “[a]s against the reserved powers of the States, Congress may use any rational means to effectuate the constitutional prohibition of racial discrimination.” We therefore hope that the Court will defer to the overwhelming and bipartisan judgment of Congress in 2006 that reauthorization of Section 5 for the covered jurisdictions continues to be justified by current needs and targets existing evils the Act is designed to address.
 557 U.S. 193 (2009).
 The Brennan Center submitted an Amicus Brief in support of the Respondents, of which Mr. Rosdeitcher was a co-author.
 Although protecting the voting rights of the newly emancipated slaves was the principal motivator for passage of the Amendment, it is recognized that the Amendment protects the rights of all citizens against racially discriminatory voting practices.
 42 U.S.C. § 1973.
 South Carolina v. Katzenbach, 383 U.S. 301 (1966).
 Pub. L. No. 91-285, 84 Stat. 314 (1970).
 Georgia v. United States, 411 U.S. 526, 535 (1973).
 City of Rome v. United States, 446 U.S. 156, 182 (1980).
 Fannie Lou Hamer, Rosa Parks, and Coretta Scott King Voting Rights Act Reauthorization and Amendments Act of 2006 (2006 Amendment), Pub. L. No. 109-246, 120 Stat. 577.
 Id. at §2(b)(9). The Act was amended in 1975 to extend protection to certain language minorities, including Hispanic-American and Asian American language minorities.
 528 U.S. 320 (2000).
 539 U.S. 461 (2003).
 Northwest Austin Mun. Util. Dist. No. 1 v. Mukasey, 573 F. Supp. 2d 221, 230-283 (D.D.C. 2008).
 Northwest Austin Mun. Util. Dist. No. 1 v. Holder, 557 U.S. 193 (2009). Justice Clarence Thomas dissented. He would have reached the constitutional questions and held Sections 5 and 4(b) unconstitutional as no longer justified by current conditions.
 Id. at 203.
 Id at 205, 211 (internal citation omitted).
 Shelby County v. Holder, 811 F. Supp. 2d 424, 428 (D.D.C. 2011).
 Shelby County v. Holder, 679 F.3d 848 (D.C. Cir. 2012).
 Id. at 873-74.
 Id. at 882.
 Id. at 891.
 The Supreme Court granted certiorari to review the constitutional questions concerning Sections 5 and 4(b) it did not answer in Northwest Austin.
 Petitioner’s Brief at 18-19.
 Id. at 21.
 Id. at 22.
 Id. at 54, quoting Justice Thomas’ dissent in Northwest Austin.
 Federal Respondent’s Brief at 9. Respondents include the Federal Respondent represented by the Department of Justice, and three separate groups of intervenors represented respectively by the NAACP Legal Defense and Educational Fund, Inc., the American Civil Liberties Union, and the Lawyers Committee for Civil Rights Under Law. While each of the intervenor-respondents’ separate briefs have somewhat different focuses, their combined views are consistent with those reflected in the Federal Respondent’s brief and for convenience, references to Respondents’ arguments generally refer to that brief.
 Federal Respondent’s Brief at 50, quoting Northwest Austin, 557 U.S. at 203.
 Northwest Austin, 557 U.S. at 205.
 South Carolina v. Katzenbach, 383 U.S. at 324.