The following contribution to our Shelby County v. Holder symposium comes from Ilya Shapiro, senior fellow in constitutional studies at the Cato Institute and editor-in-chief of the Cato Supreme Court Review.  He filed an amicus brief on Cato’s behalf in Shelby County, as well as a brief in last Term’s redistricting case, Perry v. Perez, and another in a case with a pending cert. petition, Lepak v. City of Irving – all of which detail various constitutional problems in the modern Voting Rights Act.

I’ve previously detailed on SCOTUSblog and elsewhere how Section 5’s modern application conflicts with the Fourteenth and Fifteenth Amendments and with fair and orderly election administration.

To summarize:  Covered jurisdictions are constantly subject to utterly predictable litigation whose outcome often depends on judges’ views of how to satisfy both Section 5’s race-conscious mandates and the Constitution’s command to treat people equally.  Moreover, the coverage formula is a Jim Crow anachronism; the racial gap in voter registration and turnout, for example, is lower in states originally covered by Section 5 than nationwide.  These problems undermine the Voting Rights Act’s successful legacy.

Here I want to develop another theme from my Shelby County brief, that in addition to its constitutional defects, Section 5 also conflicts with Section 2 – and that Section 2 is the more appropriate remedy for claims of racial discrimination in voting.

I. The conflict between Sections 2 and 5 creates bad law

Shelby County brings the tension between Sections 2 and 5 to the fore.  While we know from Reno v. Bossier Parish School Board that each section requires a distinct inquiry, courts often face Section 2 claims while also having to draw electoral maps that comply with Section 5.  Neither the Department of Justice nor the D.C. district court is supposed to deny Section 5 preclearance on Section 2 grounds, but courts are effectively forced to wear both hats.  Their apparent inability to do so is not surprising given the lack of applicable standards.

Many courts and legislatures in covered jurisdictions have labored to satisfy the VRA in the context of a cacophony of precedent – some that invokes only Section 5, some only Section 2, and some that references both sections.  What’s more, certain elements of the two inquiries overlap, even as this and other courts have consistently maintained that – at least in some measure – they are distinct.

For example, in evaluating an election regulation under Section 5, a court conducts a “retrogression” analysis to ensure the proposed rule doesn’t reduce the ability of minorities to elect their preferred candidates.  But there is no justiciable definition of what constitutes the “ability to elect.”

Ignoring for the moment that ambiguity, if a court concludes that retrogression would result under a given proposal, the Supreme Court said in Upham v. Seamon that “court-ordered reapportionment plans are subject in some respects to stricter standards than are plans developed by a state legislature. This stricter standard applies, however, only to remedies required by the nature and scope of the violation.”  Okay, but in what respects are these standards “stricter,” what constitutes “remedies,” and which remedies are “required” under what circumstances?

If that weren’t cryptic enough, the new prohibition on electoral regulations promulgated with “any discriminatory purpose,” regardless of effect – added by the 2006 legislation that reauthorized the VRA – further muddied the waters.  Without legislative guidance as to what constitutes a “discriminatory purpose,” lower courts are left looking plaintively at the Supreme Court for guidance.

But even if the Court’s Section 5 guidance were easily applicable in a given case, that doesn’t end the dispute.  After a proposed rule has been precleared, Section 2 further complicates matters.  Its language sounds similar to Section 5’s – it invalidates laws that create inequality among races in electing their preferred representatives – but don’t be fooled.  The Supreme Court reiterated in the 2003 case of Georgia v. Ashcroft that it has “consistently understood” Section 2 to “combat different evils and, accordingly, to impose very different duties upon the States.”  Moreover, the distinction Bossier Parish draws is merely that Section 5 “by definition, requires a comparison of a jurisdiction’s new voting plan with its existing plan.”  Is that a meaningful difference?

Indeed, even if it were clear that the analysis under the two sections is different, how those analyses differ remains ambiguous.  The Court continued in Ashcroft: “In contrast to Section 5’s retrogression standard, the ‘essence’ of a Section 2 vote dilution claim is that ‘a certain electoral law, practice, or structure . . . cause[s] an inequality in the opportunities enjoyed by black and white voters to elect their preferred representatives.’”  This process seems hardly different, however, from the very “retrogression” standard it distinguishes – Section 5’s requirement that an election law “neither has the purpose nor will have the effect of denying or abridging the right to vote on account of race or color.”

The result is untenable:  Some states and counties are subject to Section 5’s prolonged preclearance process while there has not yet been any meaningful articulation of any substantive difference between that selectively applied analysis and the Section 2 review all states must satisfy.  Section 5’s selective applicability precludes the establishment of nationwide districting standards, confounding lower courts and producing different, often contradictory, treatment of voting rights in different states – in large part because Sections 2 and 5 themselves conflict with each other.

This confusing precedent leaves little hope for the evenhanded administration of justice across the nation – and the turmoil is needless.  Indeed, Sections 2 and 5 stem from the same constitutional provision, the Fifteenth Amendment.  Section 2 meant to ensure that the Amendment was enforced nationwide, while Section 5 kept a closer eye on states that were most apt to violate it in the 1960s.  But the contradictory jurisprudence that has emerged creates a near-impossible task for courts.  The lack of clarity regarding the interplay of Sections 2 and 5 also means that constitutionally permitted districting is prohibited in some states by a statute intended to enforce the same constitutional guarantees.  Section 5’s dubious constitutionality militates for declaring victory and moving on, with Section 2 as the proper remedy for the problems Congress identified.

II. Section 2 is the proper remedy for racial discrimination in voting

Given Section 5’s burdens, its conflict with Section 2 should be resolved in favor of the latter.  In giving aggrieved litigants a private right of action, Section 2 provides the appropriate means for enforcing the Fifteenth Amendment and remedying state practices that “result[] in a denial or abridgment of voting rights.”  That private right is a targeted remedy, empowering citizens to litigate specific discrimination – in contrast to Section 5’s broad sweep, which ensnares every voting change, no matter how miniscule or banal.

Originally, case-by-case enforcement was to be the principal remedial mechanism for VRA enforcement.  In the 1966 case of South Carolina v. Katzenbach, however, the Supreme Court ruled that Section 5’s extraordinary federalism burdens were justified, at least as an emergency measure, to effectively fight that era’s “widespread and persistent discrimination in voting.”  Yet in the absence of “exceptional conditions” and “unique circumstances” – that is, “intentional discrimination so pervasive that case-by-case enforcement of the VRA would be impossible” – Section 5 wouldn’t have been constitutional.  As Justice Thomas noted in his partial dissent in Northwest Austin Municipal District No. 1 v. Holder (“NAMUDNO”), “the extensive pattern of discrimination that led the Court to previously uphold Section 5 . . . no longer exists.”  In NAMUDNO, the Court fired unmistakable warnings at Congress:  although it recognized the VRA’s historic achievements, “past success alone” was no longer “adequate justification to retain the preclearance requirements.”

Despite the VRA’s advancement of racial equality in America, apparently the D.C. Circuit majority in Shelby County felt that the Jim Crow-era “exceptional conditions” and “unique circumstances” are still so pervasive that individualized enforcement under Section 2 is impossible – and that Section 2 cannot duplicate Section 5’s purported “deterrent effect.”  It found that Congress, in renewing Section 5, produced sufficient evidence to conclude that discrimination remains so pervasive today that Section 2 is inadequate.  Yet the renewal’s House Committee Report conceded that “many of the first generation barriers to minority voter registration and voter turnout that were in place prior to the VRA have been eliminated.” Congress thus had to offer a new justification.

Rather than rely on the evidentiary standard articulated in Katzenbach, however, Congress reauthorized Section 5 by contriving a new rationale for this “uncommon exercise of congressional power” – the existence of “second generation barriers constructed to prevent minority voters from fully participating in the electoral process.”  The evidence that Congress produced thus didn’t (and couldn’t) establish the types of purposeful discrimination that originally compelled Section 5.  In Justice Thomas’s words in NAMUDNO, “evidence of ‘second generation barriers’ cannot compare to the prevalent and pervasive voting discrimination of the 1960’s.”

Section 5 was a generalized remedial mechanism once necessary for turning the tide against “systematic resistance to the Fifteenth Amendment” and defeating “obstructionist tactics,” but modern instances of discrimination are discrete rather than systemic.  Facetious tests and sinister devices that eluded private rights of action are now permanently banned – while even Section 2 violations are exceedingly rare and not disproportionate to Section 5 jurisdictions.

The D.C. Circuit scoured the congressional record, citing several examples of discriminatory voting practices as evidence that Section 5’s comprehensive remedy is still necessary.  Apart from the objections that some congressional findings are more speculative than fact-based, the reality, again quoting Thomas, is that

Perfect compliance with the Fifteenth Amendment’s substantive command is not now—nor has it ever been—the yardstick for determining whether Congress has the power to employ broad prophylactic legislation to enforce that Amendment. The burden remains with Congress to prove that the extreme circumstances warranting § 5‘s enactment persist today. A record of scattered infringement of the right to vote is not a constitutionally acceptable substitute.

All of the evidence of voter discrimination relied on by Congress and the lower court to conclude that Section 2 is inadequate is discrete and limited, not systemic and widespread.  Congress failed to produce any evidence that discriminatory voting is so endemic in nationwide voting practices that it warrants the extraordinary remedy that Katzenbach warily approved as a temporary emergency measure nearly fifty years ago.

The D.C. Circuit misleadingly concluded that that evaluating Section 2’s adequacy is Congress’s job, not the Court’s.  In upholding Section 5, the Katzenbach Court refused to simply defer to Congress’s assertion that such a radical measure was required to enforce the Fifteenth Amendment.  Why should Congress deserve more deference now, half a century later?  This is a constitutional question, not a political one, so deference to Congress would only reinforce the chaotic state of VRA jurisprudence and maintain the same battles in state legislatures and federal courts.

Another objection raised by the D.C. Circuit involves the cost and expediency of VRA enforcement under Section 2.  The lower court was concerned that plaintiffs with limited resources would be unable to litigate fact-intensive cases.  The Justice Department can essentially assume plaintiffs’ costs for Section 2 suits, however, by either initiating the action itself or intervening in support of the plaintiff.  Moreover, prevailing parties in a Section 2 suit are reimbursed attorney and expert fees.

Ironically, Section 2 was no constraint to a series of challenges in the 1980s to at-large voting districts in variousAlabamacounties.  The plaintiffs there ultimately succeeded in obtaining consent decrees against most of the defendants, includingShelbyCounty.

As for the issue of expediency, when discriminatory practices threaten imminent and irreparable injury, courts have full authority to issue preliminary injunctions.  Nothing in the legislative record from the 2006 VRA renewal suggests that Section 2 private rights of action would be an inadequate remedy.

In sum, Section 5’s extraordinary measures are no longer constitutionally warranted because other legislation exists to fully enforce the Fifteenth Amendment’s guarantees: Section 2.

Posted in Featured, The Court and the Voting Rights Act

Recommended Citation: Ilya Shapiro, Shelby County v. Holder: Section 5 of the Voting Rights Act conflicts with Section 2, which provides the proper remedy for racial discrimination in voting, SCOTUSblog (Feb. 14, 2013, 12:20 PM), http://www.scotusblog.com/2013/02/shelby-county-v-holder-section-5-of-the-voting-rights-act-conflicts-with-section-2-which-provides-the-proper-remedy-for-racial-discrimination-in-voting/