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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.