Blog No. 6 The Supreme Court, Republicans and Race. PART II, The Voting Rights Act and the Challenge Before Congress

The acquittal of George Zimmerman occurred at a point when issues of race were already very much alive in the public consciousness. The Fisher case, discussed in Part I, had sparked differing appraisals from liberals and conservatives concerning the issue of considering race in college admissions. Following on the heels of Fisher, the responses provoked by Shelby County v. Holder with respect to the Voting Rights Act reflected even sharper conflicts. Liberals expressed dismay and outrage at the decision, while conservatives tended to celebrate it, sometimes almost exuberantly. Thoughtful RINOs (and friends of RINOs) may find both sets of reactions to be overstated, but will want to consider what comes next.

In Shelby, by a 5-4 vote that divided the Supreme  Court along conservative and liberal lines, the majority held that Section 4 of the Voting Rights Act (VRA) was unconstitutional. The Voting Rights Act had been passed in 1965 pursuant to the 15^th Amendment to the Constitution, which guarantees that the right to vote cannot be abridged by reason of race and authorizes Congress to adopt implementing legislation. The Act had been extended several times by Congress, most recently in 2006. What many consider the heart of the Act is found in Sections 4 and 5.  Section 4  identifies several southern states, which at one time had required a literacy or other test in order to vote, or in which less than 50% of the population had been registered to vote or had voted in the Presidential election of 1964 (later updated to 1972). Section 5 of the Act then provides that within  jurisdictions covered by Section 4, a “pre-clearance” is required  before any change in  election procedures or practices, large or small, may be implemented. Specifically, pre-clearance means  that approval of a proposed change must be obtained from the Attorney General or a federal court.

Chief Justice Roberts’s opinion for the Court in Shelby held that Section 4 was based on conditions in the covered jurisdictions that no longer prevailed. Accordingly, he held, that  section now constituted an unacceptable interference with state sovereignty. A dissent by Justice Ginsburg argued that a) the Court had given insufficient deference to the authority of Congress under the 15^th Amendment, and b) that, while great progress had been made in the covered jurisdictions, abundant evidence of discrimination remained and that conditions might well deteriorate in the absence of Section 4. Despite some reciprocal disdain expressed in the Roberts and Ginsburg opinions (not untypical in Supreme Court writing), there were substantial legal arguments on each side. Those arguments, however,will be left for exploration in another forum, and the questions addressed here will be primarily practical and political.

Was the effect of the ruling as drastic as liberals fear?  The answer, of course, remains to be seen, but there is some reason to believe that liberal fears may be exaggerated. To begin with, the Court did not strike down the entire VRA, but focused only on Section 4, leaving untouched the remainder of the Act, including Sections 2, 3 and 5.

Section 2 of the Act prohibits voting discrimination and is enforceable by suits in federal court. As amended, proof of a discriminatory intent is not required if a practice or procedure is shown to have a discriminatory result. In the aftermath of the Shelby decision, litigation has already been commenced under Section 2 to challenge a Texas Voter Identification Law that had previously been blocked by the denial of pre-clearance by a federal court. Critics of Shelby point out that Section 2 is no substitute for Sections 4 and 5: under section 5, the burden of proof is on the jurisdiction seeking clearance, but in a suit under Section 2 the burden of proof—and the expense of initiating  litigation—is on the challenger. Nevertheless, it is likely that, in the absence of Section 4, there will be more suits filed under Section 2 and that it will be an important weapon in discouraging and redressing voter discrimination.

Section 3, sometimes referred to as a “bail-in” provision, authorizes courts to impose a pre-clearance requirement after a finding that the voting guarantees of the 14th or 15th Amendments have been intentionally violated. The pre-clearance authorized by Section 3 is more flexible than that under Section 5 in that it may be limited in time and its application may be limited to the specific type of activity found to be in violation (e.g. redistricting). Section 3 has been used in the case of two states (Arkansas and New Mexico) and counties or municipalities in seven others.

Are conservatives justified in celebrating Shelby?  Here the answer is probably yes and no. Conservatives and many others will agree with David Brooks, a moderate conservative (who is sometimes dubbed a RINO). As Brooks put it:

“First, the idea of cordoning off certain parts of the country and essentially treating them as moral wards of the federal government strikes me as ridiculous. I do not believe any part of the country has the right to condescend toward another on these matters.* * * * Second, there should be some historic recognition of the fact that circumstances have changed since the law was passed. As our colleagues on the news side pointed out in a useful infographic, in 1965, 70 percent of whites in Mississippi were registered to vote compared with 7 percent of blacks. Today, 90 percent of blacks are registered compared with 81 percent of whites. The law should reflect that sea change.”

On the other hand, some conservatives may go too far in suggesting that Shelby should be taken as the end of the discussion. As documented in the hearings before Congress in 2006, and summarized in Justice Ginsburg’s dissent, there is clear evidence that discrimination, and instincts to discriminate, have not been eradicated. Referring to that evidence, Chief Justice’s Roberts argued that “no one can fairly say that it shows anything approaching the ‘pervasive,’ ‘flagrant,’ ‘widespread,’ and ‘rampant’ discrimination that faced Congress in 1965, and that clearly distinguished the covered jurisdictions from the rest of the Nation at that time.” Nevertheless, he recognized that “problems remain” in the covered jurisdictions and elsewhere and that “any racial discrimination in voting is too much.” Accordingly, in preserving Section 5, Roberts explicitly acknowledged the authority of Congress to remedy such discrimination by a formula that “speaks to current conditions.” The question then becomes what Congress can and should do to address current and future conditions.

The prospects for action by Congress.  The assumption of many liberals (and not a few others) is that Congress is too polarized to agree on anything and that the Republican role will be largely to obstruct or delay. While it cannot be said that either assumption is irrational, neither is necessarily correct. To begin with, Republicans overwhelmingly supported the extension of the VRA in 2006, and while the composition of the Congress has changed, the moral and political imperatives have not. Accordingly, some leading Republicans in the current Congress have suggested that Congress must respond to Shelby in a constructive way. That is a path that would be in the best interests of the country and of the Republican Party.

In the Douthat column quoted in Part I, the writer characterized the Shelby decision as a “Gift to the Democratic Party.” Douthat argued that the removal of pre-clearance requirements would give rise to a flurry of Voter ID laws (as it already has) and  that development may, in turn, stimulate a backlash that will outstrip the direct effect of such laws: “They inspire registration drives and education efforts; they help activists fund-raise and organize; they raise the specter of past injustices; they reinforce a narrative that their architects are indifferent or hostile to minorities.”

The best course for Republicans, therefore, is not  to obstruct, but to demonstrate leadership in developing sound amendments to the VRA. It is too soon to specify what the precise amendments should be, but not, perhaps, to offer some preliminary thoughts.

There may be an effort by liberals to meet the challenge of the Supreme Court by analyzing evidence of “current conditions” as reflected in recent voting rights violations. And if sufficient violations were found in the previously covered jurisdictions to justify such jurisdictions being “re-covered,” that would be all the more satisfying to some. That approach, however, is likely to result in spirited and probably bitter debate and, almost certainly, no legislation.

A more promising approach would be to look forward rather than backward and to apply standards that are national rather than regional. Under that approach, there would be no Section 4 jurisdictions subject to pre-clearance, but any jurisdiction could “earn” its way into that status under Section 3. In order to make section 3 more effective, however, its reach  would perhaps need to be broadened to include actions that have a discriminatory effect (i.e., without proof of discriminatory intention). Section 3, however, could usefully retain its more flexible form of pre-clearance requirements that would allow limitations in time and scope.

One specific issue that Congress might do well to address is that of Voter ID laws, which have been the subject of increasing attention and controversy. Critics of Shelby have pointed to the fact that, following the decision,Texas immediately began to implement a Voter ID law that had previously been blocked under the pre-clearance procedure. In addition, it has been reported that a number of other previously covered jurisdictions are now planning to adopt or implement Voter ID laws.

Although Voter ID laws, including photo ID laws, serve the purpose of preventing voter fraud, critics claim that fears of voter fraud are exaggerated, and that the primary effect of such laws is to suppress the vote of less affluent voters, including minorities. Nevertheless, the Supreme Court rejected such claims in 2008 in an opinion for the Court by Justice Stevens (who was regarded then, and until his retirement, as the leader of the liberal justices on the Court). Stevens’s opinion held that the the Indiana law at issue served a legitimate purpose, and that, under the facts there presented, it did not impose an unconstitutional burden on Indiana voters. At the present time, eleven other states have photo ID laws, while additional states laws have adopted such laws but have not implemented them as a result of litigation, and in still other states, laws have been proposed but not been adopted. It is important to understand, however, that the various laws, in effect and proposed, differ considerably in the burdens that they impose on prospective voters.

A uniform federal  standard could eliminate a good deal of uncertainty and costly litigation. The federal government already regulates voter registration significantly through the National Voter Registration Act of 1993, requiring for example, that state motor vehicle driver’s license applications to serve as voter registration applications. Thus, an amendment to the NVRA might well be an appropriate means of clarifying the acceptable level of burden that can be associated with obtaining a photo ID.

The above comments need not be taken as specific  legislative proposals. Rather they are intended more to illustrate the positive attitude that Republicans (encouraged by RINOs) should bring to sorting out the aftermath of Shelby and to addressing the concerns of minority voters.