You’ve asked me to present my thoughts on the scope and efficacy of the Justice Department’s enforcement of the Voting Rights Act since the Supreme Court’s decision in Shelby County v. Holder. This is an important topic but one I’m not fully capable of assessing because of my role as a constitutional lawyer and scholar, rather than as a social scientist, investigative journalist, or researcher of voting trends and behaviors. Nevertheless, I do want to make the point that Shelby County itself is beside the point of this Commission’s analysis in this area because that ruling was fundamentally sound as a matter of constitutional law.
The goal of preventing voter disenfranchisement is unquestionably just and constitutional, but that purpose is no longer served by Section 5 of the Voting Rights Act. The provision was a constitutional overreach that, long after the situation necessitated it, perpetuated the very race-based political decisions it was intended to stop. As Justice Clarence Thomas explained almost a decade ago, “Admitting that a prophylactic law as broad as Section 5 is no longer constitutionally justified based on current evidence of discrimination is not a sign of defeat. It is an acknowledgment of victory.”1
As described below, evidence of voting-rights violations, whether increased or decreased, is insufficient to justify an extraordinary, (supposed to be) temporary regime of federal preclearance—let alone an obviously outmoded coverage formula—unless it can be proven that other VRA provisions are inadequate for resolving the issues at hand (which it cannot).
Now, you could be forgiven for thinking that Shelby County meant that racial minorities would immediately be disenfranchised, but experience in the intervening years since the Supreme Court’s decision has shown us otherwise. All the Court did was ease out an emergency provision enacted in 1965 to provide temporary federal oversight of state elections based on that era’s racial disparities. While politicians and pundits irresponsibly likened the ruling to sanctioning Bull Connor’s dogs and the murder of Medgar Evers, the case actually illustrated the strength of our protections for voting rights.
What the Supreme Court struck down was Section 4(b), which is the “coverage formula” used to apply Section 5, a provision requiring certain jurisdictions to “preclear” with the federal government any changes in election regulations—even those as small as moving a polling station from a schoolhouse to a firehouse.2 The Court found that this formula was unconstitutional because it was based on 40-year-old data, such that the states and localities subject to preclearance no longer corresponded to incidence of racial discrimination in voting.3 Indeed, black voter registration and turnout is consistently higher in the formerly covered jurisdictions than in the rest of the country.4
In other words, just as the Court was correct in 1966 to approve the constitutional deviation that preclearance represents as an “uncommon” remedy to the “exceptional conditions” in the Jim Crow South,5 it was correct to restore the constitutional order. Today shouldn’t we be marveling that Mississippi, then “a state sweltering with the heat of oppression,”6 now has one of the best ratio of black-voter turnout to white-voter turnout?7 And that the Magnolia State is one of a number of states where voter-registration rates are higher for blacks than for whites?8
Shouldn’t we be celebrating that rather than lynching black people for trying to vote, we elected a black president and confirmed two black attorneys general, our nation’s chief law enforcement officers? And that these two were preceded by two black secretaries of state, including one who knew the schoolgirls killed in the Birmingham church bombing?9 And that Section 5 states lead the nation in government officials who are racial minorities, including those elected statewide?10 Instead, media and political elites focused on a Supreme Court ruling that, far from removing protections for racial minorities’ voting rights, declared an end to the state of emergency that existed when those rights were systematically threatened.
The way that Chief Justice John Roberts began his opinion in Shelby County shows what was really at stake in the case. Although it doesn’t explicitly state what the Court’s ultimate ruling is, this preamble provides the key to the case and gives you all you really need to know about the modern Voting Rights Act—save one bit that I’ll explain shortly after. To make this easier, I’ve divided Roberts’s introduction into the logical points that he sequentially makes and then paraphrased them.
For example, Thurbert Baker served as attorney general of Georgia from 1997 to 2011, having initially been appointed by Gov. Zell Miller and then winning three elections; Wallace Jefferson became the first black justice (2001) and chief justice (2004) of the Texas Supreme Court through appointments by Gov. Rick Perry, and was elected to a full term as chief justice in 2008. Nikki Haley, now U.N. ambassador, was elected governor of South Carolina in 2010 and reelected in 2014. In the U.S. Senate, meanwhile, Ted Cruz and Marco Rubio were elected to represent Texas and Florida, respectively, and appointed South Carolina senator Tim Scott won a special election in 2014 and election to a full term in 2016.
The Voting Rights Act of 1965 employed extraordinary measures to address an extraordinary problem. Section 5 of the Act required States to obtain federal permission before enacting any law related to voting—a drastic departure from basic principles of federalism. And § 4 of the Act applied that requirement only to some States—an equally dramatic departure from the principle that all States enjoy equal sovereignty.11
Translation: The Voting Rights Act provisions at issue here are really, really unusual, outside the normal constitutional framework, and require some sort of extraordinary factual basis to support their constitutionality.
This was strong medicine, but Congress determined it was needed to address entrenched racial discrimination in voting, “an insidious and pervasive evil which had been perpetuated in certain parts of our country through unremitting and ingenious defiance of the Constitution.” South Carolina v. Katzenbach, 383 U. S. 301, 309 (1966). As we explained in upholding the law, “exceptional conditions can justify legislative measures not otherwise appropriate.” Id., at 334.12
Translation: The really bad things going on in the Jim Crow South justified the Sections 4-5 constitutional deviation.
Reflecting the unprecedented nature of these measures, they were scheduled to expire after five years. See Voting Rights Act of 1965, § 4(a), 79 Stat. 438.
Nearly 50 years later, they are still in effect; indeed, they have been made more stringent, and are now scheduled to last until 2031.13
Translation: These were supposed to be temporary measures, so it’s notable that they’re still in effect nearly 50 years later and are due to continue for nearly 30 more years; Jim Crow must still be roaming the land.
There is no denying, however, that the conditions that originally justified these measures no longer characterize voting in the covered jurisdictions. By 2009, “the racial gap in voter registration and turnout [was] lower in the States originally covered by § 5 than it [was] nationwide.” Northwest Austin Municipal Util. Dist. No. One v. Holder, 557 U. S. 193, 203-204(2009). Since that time, Census Bureau data indicate that African-American voter turnout has come to exceed white voter turnout in five of the six States originally covered by § 5, with a gap in the sixth State of less than one half of one percent. See Dept. ofCommerce, Census Bureau, Reported Voting and Registration, by Sex, Race and Hispanic Origin, for States (Nov. 2012) (Table 4b).14
Translation: Actually no, and indeed there doesn’t seem to be any evidence that racial minorities, or at least blacks, are systematically disadvantaged versus whites in terms of the right to vote—certainly not in Section 5-covered jurisdictions.
At the same time, voting discrimination still exists; no one doubts that. The question is whether the Act’s extraordinary measures, including its disparate treatment of the States, continue to satisfy constitutional requirements. As we put it a short time ago, “the Act imposes current burdens and must be justified by current needs.” Northwest Austin, 557 U. S., at 203.15
Translation: Racial discrimination in voting hasn’t been fully eradicated, of course, but does it really still exist in the same widespread, systemic way such that all those extra-constitutional measures—and the burdens they put on our federal structure—are still justified? After all, we’ve said repeatedly that remedies need to match wrongs.
After reading and digesting that framing, Shelby County becomes rather easy to understand: the Court restored the constitutional order—the status quo that existed before the temporary Sections 4 and 5—because there’s no longer systemic racial disenfranchisement. At the very least there’s no correlation between the coverage formula and racial discrimination in voting.16
In other words, the following questions were completely irrelevant: Does racial discrimination still exist? Does racial discrimination in voting still exist? Is racial discrimination in voting more common in jurisdictions formerly covered by Section 5 than elsewhere?
Even if the answer to all those questions were yes—which it is to the first two but not the third—that’s not enough to uphold the Sections 4-5 preclearance regime. Instead, the only question that matters is whether the “exceptional conditions” and “unique circumstances” of the Jim Crow South still exist such that an “uncommon exercise of congressional power” is still constitutionally justified—to again quote the 1966 ruling that approved Section 5 as an emergency measure.17
The answer to that question must be no; to hold otherwise is to insult those who fought for civil rights against fire hoses, dogs, Klansmen, and segregation laws. At the very least, political conditions have changed such that the 40-year-old voting data upon which Section 4(b) relied now subjects a seemingly random collection of states and localities to onerous burdens and unusual federal oversight. As Chief Justice Roberts wrote for the Court the previous time it looked at this law, the “historic accomplishments of the Voting Rights Act are undeniable,” but the modern uses of Section 5 “raises serious constitutional concerns.”18
Yet Congress renewed Section 5 in 2006 without updating the Section 4 formula, and it ignored the Court’s warning that “the Act imposes current burdens and must be justified by current needs.”19 Accordingly, it should be no surprise that the chief justice, again writing for the Court, noted that “the conditions that originally justified these measures no longer characterize voting in the covered jurisdictions.”20
For example, on the measures originally used to determine which jurisdictions should be covered by Section 5—racial disparities in voting and voter registration—Massachusetts was the worst offender in 2013, while Mississippi was our national model.21 As Chief Justice Roberts explained in Shelby County, even if one views the thousands of pages of congressional record related to the 2006 reauthorization in their best light, “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.”22
Moreover—and this was the extra bit I alluded to earlier—it is Section 2, the nationwide ban on racial discrimination in voting, that is the core of the Voting Rights Act, and it remains untouched.23 Section 2 provides for both federal prosecution and private lawsuits, and allows prevailing parties to be reimbursed attorney and expert fees; there is no indication that Section 2 is inadequate.24
Sections 4 and 5, meanwhile, were supposed to supplement Section 2—and they succeeded brilliantly, overcoming “the conditions that originally justified these measures.”25 Of course, the Court really should’ve gone further, as Justice Thomas pointed out in his concurring opinion.26 The Court’s explanation of Section 4(b)’s anachronism applies equally to Section 5.
In practice, however, Congress will be hard-pressed to enact any new coverage formula, not simply due to current political realities, but because the “extraordinary problem”—the “insidious and pervasive evil” of “grandfather clauses, property qualifications, ‘good character’ tests,” and other “discriminatory devices”27—that justified a departure from the normal constitutional order is, thankfully, gone. Bringing us full circle, then, Chief Justice Roberts concluded his opinion on that point: “Our country has changed, and while any racial discrimination in voting is too much, Congress must ensure that the legislation it passes to remedy that problem speaks to current conditions.”28
Shelby County thus underlined, belatedly, that Jim Crow is dead, and that American election law was ready to return to normalcy.29 Yet some of our political leaders act as if the last 50 years never happened. They declared that Shelby County reverses the gains that have been made and enables “voter suppression” when actually it’s a belated recognition that times have changed and that widespread, official racial discrimination in voting has disappeared. Shortly after the decision was announced Attorney General Eric Holder vowed to use “every tool” at his disposal to continue federal control, including joining a lawsuit against Texas’s redistricting plan and filing his own against Texas’s voter-identification laws.30
Justice Department lawsuits against statutes enacted in both Texas and North Carolina in the wake of Shelby County prove the Supreme Court’s wisdom. They show that plenty of laws exist to combat racial discrimination in voting, and it’s the effectiveness of those laws that have obviated Section 5 (and its coverage formula).
For example, Section 2 of the Voting Rights Act grants both private parties and the federal government the right to go after state practices that constitute “a denial or abridgment of voting rights.”31 It empowers citizens to challenge specific instances of discrimination and allows them to recover from defendants the costs of their lawsuits. The private right of enforcement it creates is a targeted remedy, empowering citizens to litigate specific discrimination—in contrast to Section 5’s broad sweep, which ensnared every voting change, no matter how miniscule or banal. Originally, case-by-case enforcement was to be the principal remedial mechanism for Voting Rights Act enforcement, and as Section 2 remains intact, that means of enforcement is still available.
Section 3, meanwhile, gives courts the power to order federal supervision—including Section 5-style preclearance—over jurisdictions that have engaged in deliberate discrimination that violates voting rights and are likely to continue this conduct in the absence of that extreme remedy.32 The only difference from the Section 5 regime is that the federal government now actually has to prove the existence of systemic discrimination. If it can meet that standard, it will undermine claims that the Supreme Court made it impossible to enforce voting rights. If it can’t, isn’t that a good thing?33
Of course, some believe that voter-identification laws (and related ballot-integrity tweaks) are themselves evidence of discriminatory conduct. But the Supreme Court, in an opinion by Justice John Paul Stevens—not exactly a right-wing hack—approved Indiana’s voter-ID law just a decade ago.34 And there’s no evidence that such laws keep minorities from voting; indeed, a Washington Post poll from the time Shelby County was being litigated showed that 65 percent of blacks and 64 percent of Latinos support the measures.35 When more than 30 states—plus “progressive” places like Canada, Germany, Holland, Sweden, and Switzerland—have such common-sense requirements, surely racism isn’t the motivation.
In sum, while Justice Ruth Bader Ginsburg compared getting rid of Section 5 to “throwing away your umbrella in a rainstorm because you are not getting wet,”36 it’s actually more like stopping chemotherapy when the cancer is eradicated.37 And nothing has changed in the half-decade since Shelby County was decided that would suggest the Court arrived at the wrong conclusion. Unfortunately, we don’t live in a colorblind world, but discrete instances of discrimination on the ground do nothing to change the legal analysis.
With Shelby County,the Court properly put an end to unconstitutional overreach that had been going on for far too long. While no longer so pervasive that case-by-case enforcement is impossible, racial discrimination in voting is still unconstitutional and Section 2 and 3 remain as effective and appropriate tools for combatting the problem whenever and wherever it rears its ugly head. There’s more to be done to achieve racial harmony in America, to be sure, but the way to do that is to build on the successes of the Civil Rights Era instead of pretending that nothing’s changed and that we still live in that time.
* * *
About Ilya Shapiro
Ilya Shapiro is a senior fellow in constitutional studies at the Cato Institute and editor-in-chief of the Cato Supreme Court Review. Before joining Cato, he was a special assistant/adviser to the Multi-National Force in Iraq on rule-of-law issues and practiced at Patton Boggs and Cleary Gottlieb. Shapiro is the co-author of Religious Liberties for Corporations? Hobby Lobby, the Affordable Care Act, and the Constitution (2014). Shapiro has testified before Congress and state legislatures and has filed more than 300 “friend of the court” briefs in the Supreme Court. He lectures regularly on behalf of the Federalist Society, is a member of the Legal Studies Institute’s board of visitors at The Fund for American Studies, was an inaugural Washington Fellow at the National Review Institute and a Lincoln Fellow at the Claremont Institute, and has been an adjunct professor at the George Washington University Law School. In 2015 National Law Journal named him to its 40 under 40 list of “rising stars.” Before entering private practice, Shapiro clerked for Judge E. Grady Jolly of the U.S. Court of Appeals for the Fifth Circuit.
About the Cato Institute
The Cato Institute is a non-partisan public policy research foundation dedicated to advancing the principles of individual liberty, free markets, and limited government. Cato’s Robert A. Levy Center for Constitutional Studies was established in 1989 to help restore the principles of limited constitutional government that are the foundation of liberty. Toward those ends, Cato publishes books and studies, conducts conferences, and publishes the annual Cato Supreme Court Review.
1Nw. Austin Mun. Util. Dist. No. One v. Holder (“NAMUDNO”), 5587 U.S. 193, 226 (2009) (Thomas, J., concurring in part and dissenting in part).
2 Pub. L. No. 89-110, § 4(b), 79 Stat. at 438 (1965); Pub. L. No. 89-110, § 5, 79 Stat. at 439 (1965).
3Shelby County, 133 S. Ct. at 2631.
4Id. at 2618-19. See also Shelby County v. Holder, 679 F.3d 848, 889-91 (D.C. Cir. 2012) (Williams, J., dissenting) (analyzing racial disparities in voter registration and turnout in covered and uncovered jurisdictions in the 2004 election, the last statistics relevant to the 2006 reauthorization of § 5). For data underlying that analysis, see U.S. Census Bureau, Voting and Registration in the Election of November 2004, https://www.census.gov/prod/2006pubs/p20-556.pdf For the latest data, from the 2016 election, see U.S. Census Bureau, Table 4b. Reported Voting and Registration by Sex, Race and Hispanic Origin, for States: November 2016, inVoting and Registration in the Election of November 2016, available by clicking the designated link at https://www.census.gov/data/tables/time-series/demo/voting-and-registration/p20-580.html.
5South Carolina v. Katzenbach, 383 U.S. 301, 334 (1966).
6 Martin Luther King, Jr., I Have a Dream, Speech at the March on Washington, Aug. 28, 1963, available at http://www.archives.gov/press/exhibits/dream-speech.pdf.
7See Ilya Shapiro, Voting Rights in Massachusetts and Mississippi, Cato at Liberty (Mar. 6, 2013), http://www.cato.org/blog/voting-rights-massachusetts-mississippi.
9See, e.g., Patricia Sullivan, Condoleezza Rice’s Memoir Focuses on Her Family, Houston Chronicle, Oct. 31, 2010, at 17.
10For example, Thurbert Baker served as attorney general of Georgia from 1997 to 2011, having initially been appointed by Gov. Zell Miller and then winning three elections; Wallace Jefferson became the first black justice (2001) and chief justice (2004) of the Texas Supreme Court through appointments by Gov. Rick Perry, and was elected to a full term as chief justice in 2008. Nikki Haley, now U.N. ambassador, was elected governor of South Carolina in 2010 and reelected in 2014. In the U.S. Senate, meanwhile, Ted Cruz and Marco Rubio were elected to represent Texas and Florida, respectively, and appointed South Carolina senator Tim Scott won a special election in 2014 and election to a full term in 2016.
11Shelby County, 133 S. Ct. at 2618.
14Id. at 2618-19.
15Id. at 2619.
16 Justice Ruth Bader Ginsburg’s dissent goes much more to the question of who gets to decide whether the facts on the ground justify continued application of Section 5, Congress or the courts. Shelby County, 133 S. Ct. at 2632. (Ginsburg, J., dissenting). As a proponent of judicial engagement, I see the judicial role as saying what the law is rather than avoiding such rulings—but that debate is beyond the scope of this essay. See generally Clark Neily, Terms of Engagement: How Our Courts Should Enforce the Constitution’s Promise of Limited Government (2013).
17Katzenbach, 383 U.S. at 334.
18NAMUDNO, 129 S. Ct. at 2511, 2514.
19Id. at 2512.
20Shelby County, 133 S. Ct. at 2618.
21 Oral Arg. Tr. at 32, Shelby County v. Holder, 133 S. Ct. 2612 (2013) (No. 12-96). See also Shapiro, Voting Rights in Massachusetts and Mississippi, supra note 7.
22Shelby County, 133 S. Ct. at 2629 (quoting Katzenbach, 383 U.S. at 308, 315, 331; NAMUDNO, 557 U.S. at 201).
23 Pub. L. No. 89-110, § 2, 79 Stat. 437 (1965).
24 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), 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.
25Shelby County, 133 S. Ct. at 2618.
26Id. at 2631 (Thomas, J., concurring).
27Katzenbach, 383 U.S. at 309-14 (using these phrases to describe the Jim Crow South’s evasion of laws and judicial decrees protecting voting rights).
28Id. at 2631 (majority op.).
29See generally Hans A. von Spakovsky, The Voting Rights Act after the Supreme Court’s Decision in Shelby County, Testimony before the U.S. House of Reps. Comm. on the Judiciary, Subcomm. on the Constitution, July 18, 2013, available at http://judiciary.house.gov/hearings/113th/hear_07182013/Hans%20von%20Spakovsk%207-18-13.pdf.
30See Adam Liptak & Charlie Savage, U.S. Asks Court to Limit Texas on Ballot Rules, N.Y. Times, July 26, 2013, at A1.
31 Pub. L. No. 89-110, § 2, 79 Stat. 437 (1965).
32 Pub. L. No. 89-110, § 3, 79 Stat. 437 (1965).
33 Indeed, it’s axiomatic that plaintiffs in civil rights cases have to actually prove discrimination. Former Attorney General Holder didn’t seem to have a problem with the antidiscrimination provisions in our education, employment, housing, lending, and public accommodations laws, for example, even if one could quibble with how he used them to go after disparate impact rather than mere disparate treatment. See generally Kenneth L. Marcus, The War between Disparate Impact and Equal Protection, 2008-2009 Cato Sup. Ct. Rev. 53 (2009). That’s just the way U.S. law works: having to prove liability (for racial discrimination or otherwise) in civil suits is equivalent to having to prove guilt in criminal prosecutions—and the evidentiary standard is easier to meet in the former.
34Crawford v. Marion County Election Bd., 553 U.S. 181 (2008).
35Voter Identification Laws—Washington Post Poll July 7-9, 2012, published in Fear of Voter Suppression High, Fear of Voter Fraud Higher, Wash. Post., Aug. 13, 2012, http://www.washingtonpost.com/page/2010-2019/WashingtonPost/2012/08/12/National-Politics/Polling/release_116.xml.
36Shelby County, 133 S. Ct. at 2650 (Ginsburg, J., dissenting).
37 For a longer treatment of Shelby County and what the case means for the future of the Voting Rights Act, see William S. Consovoy & Thomas R. McCarthy, Shelby County v. Holder: The Restoration of Constitutional Order, 2012-2013 Cato Sup. Ct. Rev. 31 (2013).