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Why the Predictions Could be Wrong in Shelby County

Court watchers are largely predicting the Supreme Court will strike down the formula used to determine which jurisdictions are covered by Section 5 of the Voting Rights Act. These predictions were wrong in a similar case in 2009. They might be wrong now as well.

March 1, 2013

If you listen to the court watch­ers react­ing to Wednes­day’s oral argu­ments in Shelby County v. Holder, you might be bracing your­self for a roll back of voting rights. They are largely predict­ing the formula used to determ­ine which states and local­it­ies are subject to or “covered” by the preclear­ance provi­sion of the Voting Rights Act (VRA) will be struck down by the Supreme Court. This isn’t the first time we’ve heard these prognost­ic­a­tions. In 2009, similar predic­tions aboun­ded in a similar case, North­w­est Austin Muni­cipal Util­ity District No. 1 v. Holder (NAMUDNO), involving this key provi­sion, called Section 5, of the VRA. They were wrong in NAMUDNO, and while only time will tell, I think they will be wrong in Shelby County.

Shelby County is in Alabama, a state whose record makes clear that voting discrim­in­a­tion persists. During the last reau­thor­iz­a­tion period, Alabama had 240 discrim­in­at­ory voting laws blocked by Section 5 or remedied by Section 2, another portion of the VRA that prohib­its discrim­in­at­ory tests or devices and applies nation­wide. Today, even though African-Amer­ic­ans consti­tute more than one-quarter of the popu­la­tion, Alabama has no African-Amer­ican statewide elec­ted offi­cials. For years, Shelby County relied on at-large districts to minim­ize black influ­ence. Only after settling a lawsuit brought under the Voting Rights Act did the county agree to insti­tute single-member districts. In 2008, Calera, one of the county’s six muni­cip­al­it­ies, submit­ted a redis­trict­ing plan that elim­in­ated the town’s sole major­ity-black district, again in viol­a­tion of the Voting Rights Act. 

As Justices Elena Kagan and Sonia Soto­mayor noted Wednes­day, given its record on voting rights, Shelby County is not the most compel­ling (self-described) victim of what is widely held to be the most effect­ive piece of civil rights legis­la­tion in our coun­try’s history.  Although Shelby County claims the cover­age formula denies it the “equal dignity” it deserves, it is highly doubt­ful any reas­on­able or effect­ive formula could be devised that would not cover Alabama or Shelby County. 

The argu­ments them­selves do not provide much predict­ive value. Although it is true several of the Justices expressed skep­ti­cism that the cover­age formula targeted all of the worst offend­ers of the VRA, similar concerns cropped up during the oral argu­ment four years ago in NAMUDNO. Justice Anthony Kennedy, whose vote might be determ­in­at­ive, asked approx­im­ately the same number of ques­tions to support­ers of the Voting Rights Act in NAMUDNO as he did on Wednes­day. And the tone of the ques­tion­ing in NAMUDNO was simil­arly, if not more, hostile to the VRA. Justice Samuel Alito asked almost the same number of ques­tions — cover­ing compar­able topics — in both oral argu­ments. Justice John Roberts asked if south­ern­ers were more discrim­in­at­ory than north­ern­ers, which was effect­ively the same as a ques­tion he asked in NAMUDNO. And Justice Scalia, too, repeated topics raised in the NAMUDNO argu­ments, express­ing again his skep­ti­cism that legis­la­tion that passed by such an over­whelm­ing vote (98–0 in Senate; 390–33 in House) by Congress was given due consid­er­a­tion. 

The Court noted Wednes­day that the cover­age formula reau­thor­ized in 2006 was untouched from the previ­ous version. But there was very little discus­sion over what exactly Congress needed to do differ­ently to have appro­pri­ately fulfilled its duties. Shelby County obliquely sugges­ted that Congress should have examined counties and other smal­ler juris­dic­tions indi­vidu­ally, rather than at a statewide level, but no one sugges­ted that Congress was on the beach during the 2006 reau­thor­iz­a­tion process instead of giving seri­ous thought and consid­er­a­tion to the task before it. No one really could given the 20+ hear­ings, 15,000 pages of docu­ments, and scores of witnesses in the record. The sheer volume of evid­ence compel­ling the continu­ing need for the preclear­ance process in the covered juris­dic­tions is, in my mind, a far more likely explan­a­tion for the over­whelm­ing congres­sional support for the VRA in 2006 than Justice Scali­a’s theory that it consti­tutes entrenched “racial enti­tle­ments.”

Ulti­mately, the ques­tion comes down to one of defer­ence to Congress. The 15th Amend­ment of the Consti­tu­tion makes clear that it is Congress’ job to determ­ine where racial discrim­in­a­tion deeply infects our elect­oral processes, not Shelby County’s or the Court’s. It is certainly the Court’s job to eval­u­ate whether Congress did its job appro­pri­ately, but the Consti­tu­tion does not require that Congress have been perfect in its determ­in­a­tion, and import­antly, Congress devised work­able mech­an­isms through the VRA’s bail-out and bail-in provi­sions to account for instances in which Congress’ determ­in­a­tion was off base, or no longer applic­able. The compel­ling evid­en­tiary record of modern-day need, made even more pronounced by the recent wave of restrict­ive voting laws that appeared heav­ily in covered states, and the broad author­ity given to Congress by the Consti­tu­tion to prevent racial discrim­in­a­tion in voting, make uphold­ing the cover­age formula an easy case for the Court.

Photo by Wonder­lane.