Appeals Court Upholds Key Section of Voting Rights Act

A three judge panel of the D.C. Circuit Court of Appeals has upheld the constitutionality of Section 5 of the Voting Rights Act, which has been under increasing legal challenge over the last few years. That section requires jurisdictions with a history of minority voter suppression — mostly Southern states and localities that used a variety of laws to suppress the black vote for a century after the Civil War — to get approval from the DOJ or a federal court before enacting any changes to their voting rules that could affect minority voters disproportionately.

More and more states have been challenging Section 5, claiming that it is an overreach of federal power and that it is no longer necessary (of course, those states have also been making the argument that it was never necessary since it was passed almost 50 years ago). And the Supreme Court has pretty clearly signaled that they question the constitutionality of that section, though they haven’t ruled directly on the question.

In Northwest Austin Municipal Utility District No. 1 v. Holder in 2009, the Supreme Court declined to explicitly address the constitutionality of Section 5 because the Texas district was able to be exempted from its requirements by a federal court. 8 of the 9 justices agreed not to make a broad ruling on the constitutionality of Section 5, while — unsurprisingly — Clarence Thomas wanted the court to strike it down entirely. But the court also signaled that they might well overturn Section 5 entirely if a case came along that required it.

The historic accomplishments of the Voting Rights Act are undeniable. When it was first passed, unconstitutional discrimination was rampant and the “registration of voting-age whites ran roughly 50 percentage points or more ahead” of black registration in many covered States. Today, the registration gap between white and black voters is in single digits in the covered States; in some of those States, blacks now register and vote at higher rates than whites. Similar dramatic improvements have occurred for other racial minorities. “[M]any of the first generation barriers to minority voter registration and voter turnout that were in place prior to the [Voting Rights Act] have been eliminated.”

At the same time, §5, “which authorizes federal intrusion into sensitive areas of state and local policymaking, imposes substantial ‘federalism costs.’ ”. These federalism costs have caused Members of this Court to express serious misgivings about the constitutionality of §5.

Section 5 goes beyond the prohibition of the Fifteenth Amendment by suspending all changes to state election law—however innocuous—until they have been precleared by federal authorities in Washington, D. C. The preclearance requirement applies broadly, and in particular to every political subdivision in a covered State, no matter how small.

Some of the conditions that we relied upon in upholding this statutory scheme in Katzenbach and City of Rome have unquestionably improved. Things have changed in the South. Voter turnout and registration rates now approach parity. Blatantly discriminatory evasions of federal decrees are rare. And minority candidates hold office at unprecedented levels.

These improvements are no doubt due in significant part to the Voting Rights Act itself, and stand as a monument to its success. Past success alone, however, is not adequate justification to retain the preclearance requirements. It may be that these improvements are insufficient and that conditions continue to warrant preclearance under the Act. But the Act imposes current burdens and must be justified by current needs.

The Act also differentiates between the States, despite our historic tradition that all the States enjoy “equal sovereignty.” Distinctions can be justified in some cases. “The doctrine of the equality of States … does not bar … remedies for local evils which have subsequently appeared.” But a departure from the fundamental principle of equal sovereignty requires a showing that a statute’s disparate geographic coverage is sufficiently related to the problem that it targets.

These federalism concerns are underscored by the argument that the preclearance requirements in one State would be unconstitutional in another. Yet considerations of race that would doom a redistricting plan under the Fourteenth Amendment or §2 seem to be what save it under §5”. Additional constitutional concerns are raised in saying that this tension between §§2 and 5 must persist in covered jurisdictions and not elsewhere.

Page 1 of 3 | Next page