Well, SCOTUS Claus left us a stocking full of coal this morning in Shelby County v. Holder. I’m not going to do a full analysis of the case, since other people have already done a much better job of that than I ever could. (I’m talking about you, SCOTUSblog, and your already-posted five articles and forthcoming Shelby reaction symposium.) But here’s the short-short summary, followed by some specific questions/thoughts:
First, Some Background on the VRA
The Voting Rights Act has a few sections that are relevant to this case. Very generally, section 2 prohibits all states/subdivisions from doing certain discriminatory things. Individuals can sue if they think a jurisdiction has violated section 2. Section 5 is a special “preclearance” requirement. Under section 5, certain states/subdivisions must get prior approval from the federal government before changing laws having to do with voting. The feds review the laws before they go into effect to make sure they are not discriminatory. Section 4 provides a formula to determine which jurisdictions are subject to section 5’s preclearance requirement — the so-called “covered” jurisdictions. The covered jurisdictions are basically the former Confederacy and a smattering of counties in the north and west.
When Congress first passed the VRA, the section 4 formula was based on which states had Jim Crow-era discriminatory voting laws and the voting patterns from the 1964 election. The formula was updated most recently to include voting patterns from the 1972 election. Congress has subsequently reauthorized the VRA and the section 5 preclearance requirement, but they have not updated the section 4 formula.
So what did the Court do today? Well, Chief Justice Roberts expressed a lot of skepticism with section 5 and the preclearance regime. He thinks the supporters of section 5 want to have it both ways: There’s discrimination? That means we need section 5! There’s no discrimination? That just means section 5 is working! According to the Chief, at some point this “extraordinary” preclearance requirement has to end.
But the Court didn’t strike down the preclearance requirement. Instead, the Court struck down section 4 — the part of the statute that subjects certain states (but not others) to the preclearance requirement. As a practical matter, that means that no states are subject to the preclearance requirement until Congress resets the formula.
What’s the problem? Well, the Court thinks that the section 5 preclearance requirement is an extraordinary exercise of congressional power. That’s fine (at least in theory), but the Court doesn’t want Congress exercising that power willy-nilly. Sure, the Court pays some lip service to the idea that racism and discrimination in voting are still problems. But the Court doesn’t think the problems can be of the exact same degree and in the exact same jurisdictions as it was in 1972. Accordingly, if Congress wants to apply the section 5 preclearance requirement, it needs to take a fresh look at where to apply it. So now the ball is in Congress’s court.
Note: Justice Thomas concurred in the Court’s decision, but he would have gone farther — he would have invalidated section 5 as well, on a “racism is over” theory.
My Random Thoughts and Questions in No Particular Order!
1. What’s the standard? — The Court’s opinion never really explains what sort of standard or scrutiny applies to the review of section 4. The Chief Justice says that treating different states differently requires that the treatment be “sufficiently related to the problem that it targets.” Well… okay. There must be a “sufficient” relationship! <sarcasm> That’s helpful! </sarcasm> Without a real standard, the Court’s opinion just reads like the Chief Justice has a personal disagreement with how Congress went about reauthorizing section 4 specifically and the VRA generally. There’s no sense of how close the fit needs to be. In dissent, Justice Ginsburg points out the differences between covered and uncovered jurisdictions on VRA violations. Why are those distinctions not good enough? What metric are we using to evaluate whether they are? I don’t know.
2. The states have “equal dignity”? — The idea that Congress must treat every state the same permeates the Court’s opinion. This strikes me as strange. Mike Dorf has a similar view. What’s the reason for treating all states the same? All states are not the same! Isn’t that supposed to be the point of “Our Federalism”? And it’s not as if section 4 calls out individual states by name. Rather, it lists certain facially neutral requirements that “just so happen” to apply to the southern states.
Also, the whole concept of a state’s “dignity” always struck me as strange. States don’t have dignity. They are states. The word “dignity” is used three times in the case. The Chief Justice uses it twice to refer to states. Justice Ginsburg uses it once to refer to voters.
3. Why is “uncommon” bad? — The Chief Justice repeatedly stresses the uncommon and exceptional nature of the section 5 preclearance requirement. But so what? There’s nothing wrong with being uncommon. Congress has to deal with all sorts of complex societal problems, and it’s not surprising that sometimes Congress will come up with novel attempts to solve those problems. Why should those novel attempts be subjected to heightened constitutional scrutiny?
The Court’s anti-exceptionalist rhetoric reminded me of the ACA case. There too, the Court seemed hung up on the fact that Congress had never required people to purchase an item in commerce. The individual mandate was unprecedented! The novelty of Congress’s proffered solution to our health care problem seemed like a mark against the ACA. But I’m not sure why that should be the case.
4. Process or substance? — One could read this as a process decision. The Court doesn’t have any problem with section 5 or with a formula for section 4 in theory. It’s just that Congress hasn’t updated that formula for section 4 in 40 years; the formula therefore lacks a sufficient relationship to the problem of voting discrimination. Congress could go back and re-reauthorize the VRA and either (a) tweak the section 4 formula or (b) make some specific findings that based on modern facts-on-the-ground the section 4 formula is still ship shape.
But would that be enough? I’m skeptical. I’m reminded of the Lopez and Morrison two-step on the Commerce Clause a while back. In Lopez, the Court struck down the Gun-Free School Zone Act because of an insufficient connection between commerce and guns near schools. Congress learned its lesson. When it passed the Violence Against Women Act it had all sorts of hearings and evidence establishing (as a matter of congressional investigation and factfinding) that violence against women had a profound effect on commerce. But the Morrison Court was not impressed, holding that it was for the Court to determine what was or was not commercial activity that could be considered sufficiently “substantial” to fall within the Court’s commerce power.
It wouldn’t surprise me at all if the same thing happens here: Congress goes back and provides the necessary process and consideration of section 4, evaluates the formula, etc. But then the Court decides, no, it’s the Court’s job to determine whether racism still exists at a level sufficient to justify section 4 and section 5.
5. What about Congress? — Of course, there’s the question of whether Congress will ever get around to reenacting section 4. Everyone seems to assume that Congress won’t do it. But why not? Congress almost unanimously reauthorized the VRA at its most recent expiration.
The answer, I suppose, is that it’s easy to just vote to continue something. It’s another thing altogether to go about the actual work of specifically figuring out which counties/states should be subjected to section 5 preclearance. “I voted to reauthorize the VRA!” is a far different campaign ad than “I voted that North Carolina is more racist than Ohio!”