Indeed, the list of Section 5 jurisdictions is bizarre: six states of the Old Confederacy (and certain counties in three others), plus Alaska, Arizona, and counties or townships in other states ranging from New Hampshire to South Dakota. Curiously, (only) three New York counties are covered, all boroughs in New York City. What’s going on in the Bronx, Brooklyn, and Manhattan that is not in Queens or Staten Island? Four members of the Supreme Court famously hail from Gotham, each from a different borough; perhaps they know something the rest of us don’t.
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. As the Court unhelpfully noted in Perry v. Perez earlier this year, lower courts “should presume neither that a State’s effort to preclear its plan will succeed nor that it will fail.”
Given Section 5’s burdens, its conflict with Section 2 should be resolved in favor of the latter. In allowing a private right of action, Section 2 provides the appropriate means for enforcing the Fifteenth Amendment and ensuring that any state practice which “results in a denial or abridgment of voting rights” can be effectively remedied. That private right of action is a more targeted remedy, empowering citizens to litigate specific discriminatory acts — in contrast to Section 5’s broad sweep, which ensnares every voting change, no matter how miniscule or banal.
When the Supreme Court originally upheld the VRA in 1966, it found that Section 5’s generalized mechanism was necessary because individualized litigation under Section 2 could not effectively fight such “widespread and persistent discrimination in voting.” Although Section 5’s broad remedial role was once appropriate and necessary in turning the tide against such “systematic resistance to the Fifteenth Amendment” and defeating “obstructionist tactics,” 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.
And Section 2 provides all the remedies now required. The Justice Department can essentially assume plaintiffs’ costs for Section 2 suits, for example, by either initiating the action itself or, as it often does, intervening in support of the plaintiff. Courts may even issue preliminary injunctions where delay would otherwise cause irreparable harm. Nothing in the legislative record of the 2006 VRA amendments suggests that Section 2 private rights of action would be an inadequate remedy.
The Court’s conclusion in 1966 that Section 5 is a necessary supplement to Section 2 is thus no longer warranted — which means that Section 5’s extraordinary measures are no longer constitutionally justifiable. Yet the provision remains in place due to the presumption that election regulations in certain places are illegal until proven otherwise.
But three generations of federal intrusion on state prerogatives have been more than enough to kill Jim Crow. In the words of President Obama, the Voting Rights Act has exceeded expectations in making this nation “a more perfect union.” While celebrating its achievements, we must recognize that this success has obviated its constitutional legitimacy.
Put simply, the VRA’s success has undermined its continuing viability; courts and legislatures struggle mightily and often fruitlessly to satisfy both Section 5’s race‐based mandate and the Fifteenth Amendment’s equal treatment guarantee. These difficulties — constitutional, statutory, and practical — disadvantage candidates and voters, and undermine the VRA’s legacy of vindicating the voting rights of all citizens.
In sum, the Voting Rights Act has served its purpose but is now outmoded and unworkable. Section 5 in particular causes tremendous federalism and equal protection problems, all while enforcing arbitrary standards that conflict with the Fourteenth and Fifteenth Amendments and with Section 2. As Justice Thomas wrote in NAMUDNO, an acknowledgment of Section 5’s unconstitutionality “represents a fulfillment of the Fifteenth Amendment’s promise of full enfranchisement and honors the success achieved by the VRA.”
While Perry v Perez may not have been the right vehicle for doing so, the Court now has before it not one but two excellent vehicles to use for a reconsideration of the modern VRA: the cert. petitions in Nix v. Holder and Shelby County v. Holder. Indeed, the law’s incongruities present the prototypical situation of legal problems that are capable of repetition yet evading review — another factor that militates in favor of the Court’s taking this Term’s Section 5 challenges.