After 50 Years, the Voting Rights Act's Biggest Threat: The Supreme Court

'I Don't Want to Draw "Nigger" Districts'

The Voting Rights Act has been so successful over the decades in part because its main provisions interact so sensibly with one another. Section 2 prohibits racially discriminatory voting practices and procedures -- and gives private citizens the right to sue to enforce the law. Section 4 sets out the criteria for when a jurisdiction has to seek federal approval for new voting rights laws -- and when a "covered" jurisdiction can "bailout" of its obligations under Section 5.

Under Section 5, officials in a "covered" jurisdiction must prove to the satisfaction of federal officials that a "proposed voting change does not deny or abridge the right to vote on account of race, color, or membership in a language minority group." Nine states -- including Alabama, the home of Shelby County -- are completely "covered" by the section. Five other states have only certain counties which are covered. Two states have only certain townships which are covered. Despite systemic voter suppression efforts over the past few election cycles, neither Ohio nor Pennsylvania are "covered" jurisdictions.

Opponents of the act say it's no longer necessary because there is less racial discrimination in voting laws than there once was. This is undoubtedly true. But there is still an astonishing level of racial discrimination in voting laws. Since 1982, the feds told the justices in their Shelby County brief, "... approximately 2,400 discriminatory voting changes had been blocked by more than 750 Section 5 objections, approximately 400 of which involved cases with specific evidence of intentional discrimination." Without Section 5, the feds argue, minority voters would have had to sue individually, at great cost of time and money, in some cases after having lost their right to vote. Like it was before the passage of the statute.

When he reviewed the record in this case, in writing the ruling that is now before the Supreme Court, D.C. Circuit Court of Appeals Judge David S. Tatel described some of the facts that confronted members of Congress in 2006 when they were debating Section 5's renewal. "The legislative record also contains examples of overt hostility to black voting power by those who control the electoral process," Judge Tatel wrote:

On Mississippi, for instance, state legislators opposed an early 1990s redistricting plan that would have increased the number of black majority districts, referring to the plan publicly as the "black plan" and privately as the "nigger plan." (Modern Enforcement of the Voting Rights Act: Hearing Before the S. Comm. on the Judiciary, 109th Cong. 22 (2006) ("Modern Enforcement") (internal quotation marks omitted); see also S.Rep. No. 109-295, at 14.

In Georgia, the state House Reapportionment Committee Chairman "told his colleagues on numerous occasions, 'I don't want to draw nigger districts,'" H.R.Rep. No. 109-478, at 67 (quoting Busbee v. Smith, 549 F.Supp. 494, 501 (D.D.C.1982)). The district court pointed to numerous additional examples of intentional discrimination in the legislative record. See Shelby Cnty., 811 F.Supp.2d at 472-76, 477-79, 480-81, 481-85, 485-87; see also Nw. Austin, 573 F.Supp.2d at 258-62, 289-301

Judge Tatel is an appointee of President Bill Clinton, but Section 5 of the Act has been consistently upheld by lower court appointees of Republican presidents. For example, at the trial level in the Shelby County case, U.S. District Judge John Bates, an appointee of President George W. Bush, rejected the county's arguments against Section 5. So did D.C. Circuit Judge Thomas B. Griffith, another appointee of President Bush, when he joined Judge Tatel's ruling. It is therefore mostly the language of Chief Justice Roberts's majority opinion in Northwest Austin, and Justice Thomas' concurrence, which explains why many voting rights experts believe today that Section 5 is in trouble in Shelby County.

It is "undeniable," the Chief Justice wrote in the 2009 decision, that the law has been successful. But it "imposes substantial federalism costs" and challenges the "historic tradition that all States enjoy equal sovereignty." Because Section 5 "imposes current burdens" it "must be justified by current needs," the Chief Justice wrote, adding:

The evil that Section 5 is meant to address may no longer be concentrated in jurisdictions singled out for preclearance. The statute's coverage formula is based on data that is now more than 35 years old, and there is considerable evidence that it fails to account for current political conditions.

Congress, the Chief Justice wrote, "heard warnings from supporters of extending Section 5 that the evidence in the record did not address 'systematic differences between the covered and non-covered areas of the United States[,]... and, in fact, the evidence that is in the record suggests that there is more similarity than difference."

It worries supporters of the Voting Rights Act that the Chief Justice (and, at least, Justice Thomas, too) believe there is "considerable evidence" that Congress failed to properly do its job in addressing the "systematic differences" between Section 5's "covered" and non-covered jurisdictions. One subtext to next week's argument will be the question of how much judicial deference is warranted when reviewing a federal statute backed up by page upon page of facts like this: It's a matter of record now that the vast majority of Section 2 voter discrimination cases -- 81 percent -- were brought in jurisdictions "covered" by Section 5.

Alabama "still grapples with race-relations issues," the state lawyers told the justices, "but they are the same kinds of issues every State currently is endeavoring to solve."

The concept of "unequal state protection" from federal authority is the rationale that Shelby County and its conservative supporters have put forth in the current case. Congress was acting illogically when it renewed Section 5, these advocates argue, and the Supreme Court should intervene to save the "covered" jurisdictions from the yoke of federal tyranny. "The Constitution grants Congress power to enforce the Reconstruction Amendments, not rewrite them," Shelby County's lawyers wrote in their brief. "The Court thus must draw 'the line between measures that remedy or prevent unconstitutional actions and measures that make a substantive change in the governing law.'"

We know where Justice Thomas stands on the issue. He is almost certainly going to vote to strike down Section 5. There is only a little doubt, too, where the Chief Justice's sympathies lie. And during oral argument in Northwest Austin, Justices Samuel Alito, Antonin Scalia, and Anthony Kennedy all also expressed disdain for the Congressional findings behind the 2006 renewal -- and concern over the idea of the need for "equal sovereignty" among the states. Justice Kennedy was especially blunt:

Yet the Congress has made a finding that the sovereignty of Georgia is less than the sovereign dignity of Ohio. The sovereign dignity of Alabama, is less than the sovereign dignity of Michigan. And the governments in one are to be trusted less than the governments than [sic] the other.

'Not an Uncovered States of America and a Covered States of America'

Even though Section 5 survived Northwest Austin, it was immediately clear that the Court had issued an invitation for future challenges. It was also plainly evident following the ruling which arguments were likely to maintain traction among the Court's conservatives. This surely explains why Alabama, filing a friend of the court brief last month in the Shelby County case, began its argument by mocking President Barack Obama's famous campaign line concerning health care. "In 2013," Alabama's lawyers wrote, "there should not be the Uncovered States of America and the Covered States of America. There should be the United States of America." A federal law should cover all people, everywhere, in each state and county, Alabama argues.

The state's pitch to the Court is extraordinary given Alabama's history and the pattern and practice of official discrimination in voting which continues to exist today. "Alabama has a new generation of leaders with no connection to the tragic events of 1965," the state's lawyers told the justices. "The effects of those events on voting and political representation have now, thankfully, faded away.These on the ground realities show that the 2006 Congress abdicated its constitutional responsibilities when it simply reimposed, on Alabama and other States ready to be equal partners in the Union, burdens that previously were necessary and appropriate only because of a defiance and recalcitrance whose vestiges no longer exist."

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In support of this proposition, Alabama told the Court that "African Americans compose a percentage of Alabama's legislature that reflects the overall population numbers in the State" and that the Justice Department "has not objected to a statewide preclearance submission from Alabama in 16 years." Alabama "still grapples with race-relations issues," the state lawyers told the justices, "but they are the same kinds of issues every State currently is endeavoring to solve. The recalcitrance and defiance are now gone."

For its part, Shelby County, the actual petitioner in the case, had dug deeper into the factual bases for Congress's 2006 renewal of Section 5 and for its "coverage formula under Section 4(b). "At most," the county's lawyers told the justices, "the 2006 legislative record shows scattered and limited interference with voting rights, a level plainly insufficient to sustain Section 5 preclearance. Congress," they told the justices, "needed to find that Section 5 was justified under actual conditions uniquely present in the covered jurisdictions; it could not proceed from an unsubstantiated and unbounded assumption that the covered jurisdictions have a latent propensity to discriminate that does not exist elsewhere in the country."

"Section 2 and racially polarized voting occur nationwide," Shelby County now argues. "If Congress were serious about imposing preclearance on jurisdictions where such problems are most prominent, States like New York, Illinois and Tennessee would have been covered instead of many (if not most) of the covered jurisdictions." This also is a theme that resonates throughout many of the dozens of briefs filed in opposition to the act. "Nothing in the legislative record indicates that more traditional and less intrusive remedies... are an inadequate solution for the residuum of voting discrimination." Those "less intrusive remedies," of course, were the very ones that failed to bring justice for a hundred years after the Civil War gave a "new birth of freedom" to the exercise of the right to vote.

'Purposeful Discrimination' Persists Today

The cheery view of voting discrimination in Alabama, the one offered by Alabama officials seeking to justify their own policies, is seemingly at odds with the evidence as Congress saw it back in 2006. In their brief filed on behalf of black residents of Shelby County, lawyers for the NAACP Legal Defense and Education Fund (NAACPLDF) list ten pages worth of voting rights violations committed by Alabama officials in the years leading up to Congress's 2006 renewal of the Voting Rights Act. "During the re-authorization period," from 1982 to 2006, the lawyers wrote, "nearly 240 discriminatory voting laws in Alabama were blocked by Section 5 objections (46) or remedied by Section 2 litigation (192)."

The NAACPLDF then reminded the justices that the Supreme Court has twice since 1982 "found purposeful racial discrimination in Alabama" on voting rights and that other federal courts, including the Southern-based 11th U.S. Circuit Court of Appeals, also have "found intentional discrimination in voting in Alabama. From a 2011 case, the civil rights lawyers offered this nugget:

In United States v. McGregor, 824 F. Supp. 2d 1339, 1347 (M.D. Ala. 2011), the court found "compelling evidence that political exclusion through racism remains a real and enduring problem in [Alabama]," "entrenched in the high echelons of state government." The court rejected testimony by several white Alabama state legislators as lacking credibility, finding they were motivated by "pure racial bias" as they sought to "reduc[e] African-American voter turnout." Id. at 1345. Several white legislators and their interlocutors were caught on tape comparing Black voters to "illiterate[s]" and "Aborigines." Id.

On and on the brief goes, listing examples where the Alabama of today acts very much like the Alabama of George Wallace's day. Even in instances where local Alabama jurisdictions entered into consent decrees with federal officials to adopt new election methods free from "racist effect," the NAACPLDF told the justices, "numerous jurisdictions, including Shelby County and one of its largest municipalities, attempted to circumvent these decrees." Thus the same local officials who argue that the law is no longer necessary because voting problems no longer exist are the ones who have proven its worth by trying to violate it.

If the NAACPLDF brief offers the legal view of the continuing need for Section 5 in Alabama and other covered areas, an amicus brief filed by the Alabama Legislative Black Caucus and the Alabama Association of Black County officials sends the Court a powerful message about what life is like today for black state and county elected officials in Alabama. These men and woman, write their lawyers, "are engaged in the day-to-day struggles to advance the interests of their constituents in a social, political and legal environment that is still dominated by the vestiges of official racial discrimination..."

And federalism? Here the black officials in Alabama have an answer as well. The justices should respect the judgment of those federal lawmakers from the state who voted in favor of the Voting Rights Act, including Section 5. Both of Alabama's Republican senators, Jeff Sessions and Richard Shelby, voted in favor of renewal. "The point here," the civil rights lawyers argue, "is that black Southerners and the members of Congress they elected were able to convince the vast majority of other members of Congress that the need for the exercise of power granted Congress by Section 5 of the Fourteenth Amendment and Section 2 of the Fifteenth Amendment still outweighs the sovereignty objections of the Southern states."

For its part, the Justice Department brief is light on rhetoric and heavy on the notion that the Supreme Court should stop meddling with a core Congressional function. "The decision to reauthorize Section 5 ultimately rests on empirical assessments of social conditions and predictive judgments that the Constitution entrusts to Congress," federal lawyers told the justices, "and those judgments should receive great deference." In other words, the Justice Department argues, the Voting Rights Act may not be perfect but no law is. Here's an illustrative paragraph:

Congress also gathered evidence of voting discrimination from outside the Section 5 process, including successful Section 2 suits filed against covered jurisdictions; continued disparities between minority voters' registration and participation rates as compared to those of non-Hispanic white voters; the Attorney General's experience in certifying and dispatching election observers; the persistence of severe racially polarized voting in covered jurisdictions; and the testimony of experts, voters, and practitioners about ongoing intimidation, harassment, voter suppression and intentionally dilutive practices by covered jurisdictions.
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Andrew Cohen is a contributing editor at The Atlantic. He is a legal analyst for 60 Minutes and CBS Radio News, and a fellow at the Brennan Center for Justice.

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