(wiki) (text)
Written by Ginsburg, joined by Breyer, Sotomayer, and Kagan.
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(1) Though the court struck down section 4(b) at issue is really section 5, and at issue is whether the court or congress is more capable of deciding which legislation is most appropriate to enforcing the amendments of the reconstruction. Congress, with overwhelming support from both houses, chose to reauthorize the Voting Rights Acts both in the hopes of adding to its impressive attainments in the defense of civil liberties and as a preventative against backsliding by the states. This was Congresses call to make.
(2) The majority doesn’t deny that discrimination still exists yet today blocks the one piece of legislation that has been most effective in combating it. Federal preclearance of state voting laws has been a critical part of the law’s effectiveness.
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(3) a century after the passage of the 14th and 15th amendment’s discriminatory voting laws remained a widespread and intractable problem. As soon as one such a voting law was struck down, another slightly altered version –“with remarkable variety and persistence”– of the same regulation sprung up in its place. This court for example struck down three separate attempts by the state of Texas to institute all-white primaries.
(4)The court during this period recognized that disriminatory voting laws were a political problem requiring a political [and not judicial] solution.
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(5) Previous civil rights acts had expanded the power of the Attorney General to deal with cases of abuses of the electoral system, but owing to the ease of altering laws, the difficulty of preparing the litigation, and the hostility of voting officials, these means were insufficient to the task.
(6) The Voting Rights Act, with its preclearance provision, succeeded where previous legislation had failed.
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(7) After a century without progress in guaranteeing for minorities 14th and 15th amendment rights, the improvements wrought by the VRA came swiftly: within five years of its passage, more african american voters had been registered [in southern states ex VA, FLA] than in the entire preceding century.
(8) Despite the improvements that were the direct result of the act’s passage, the law was not entirely successful at rooting out discriminatory voting practices. Covered jurisdictions continued to submit changes to voting laws which the attorney general deemed unsuitable for clearance, and “second generation” methods of discrimination –which reduced the impact of minority voting arose, rather than blocking direct access to the ballot– arose.
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(9) “Second generation” discrimination can come in a variety of forms. Racial gerrymandering –“at large” instead of district voting (so that the citywide racial majority can determine district seats)– and incorporating neighboring white areas into city limits. These practices are more subtle than the literacy tests of 1965, but their effect is the same.
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(10) In response to the evidence of these threats to voting rights, Congress repeatedly reauthorized the act, in 1970, 1975, and 1982. When the act again came up for renewal, in 2007, Congress again considered whether the preclearance mechanism remained an appropriate response to the discrimination it sought to counter.
(11). The congress undertook this reauthorization seriously: starting early both the house and senate held extensive hearings on the subject over a six month period. In the end it was passed by overwhelming majorities and and signed into law by President Bush.
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(12) During the course of the legislative process Congress, holding 21 hearings, heard from scores of witness and receiving numerous investigate reports and other documentation, compiled some 15,000 that pointed to the continued flagrant pursuit of discriminatory practices and the need for VRA’s preclearance mechanism.
(13) Finding that, though the VRA had been successful against 1st generation discriminatory practices, second generation practices continued to threaten to deprive minority voters of their electoral rights, Congress deemed the reauthorization of the law essential.
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(14) It did so reauthorize the bill for another twenty-five years, establishing that in 15 years it would undergo a review. The question is now if Congress acted within its authority as granted by the constitution in doing so.
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(15) In considering this question, it is apparent there is significant judicial precedent to giving Congress wide latitude in the protection of voting rights.
all
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(16) The framers of the fifteenth amendment, in authorizing congress to implement “appropriate legislation” in defense of the 15th amendment, clearly invokved the language of Justice Marshall in establishing the range of Congressional power under the NEcessary and Proper clause. [John Marshall] “[…] all means that are appropriate, that are plainly adapted to a [legitimate] end, which are not prohibited, but which consist with the letter and spirit of the constitution, are constitutional.”
(17) It cannot credibly be admitted that the VRA is inconsistent with the letter or spirit of the Constitution in light of the civil war amendments, which (in a departure from previous amendments) gave to Congress, and not the courts, sweeping powers over a certain domain.
[two footnotes. The second answers Robert’s point that many of the dissenters in this case agreed in Northwest Austin there were “serious constitutional questions.” The first makes the case that all the amemndments protecting the right to vote clearly think of congress as being the defender of that right and give it the same broad powers of “appropriate legislation” to use toward that end.]
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(18) The court must asks of congress not if it has chosen the wisest or best means but if it has chosen a rational means to a legitimate end.
(19) Hitherto, the standard Congress had to meet in legislating over racial discrimination was set by Katzenbach: “As against the reserved powers of the states, Congress may use any rational means to effectuate the constitutional prohibition of racial discrimination in voting.” Today’s opinion does not seek to alter that standard but to argue that congress is at present not using rational means.
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(20) For three reasons, legislation being reauthorized is more likely to meet the rational-basis requirement than an original piece of legislation. [i] Congress has a substantial legislative record assembled in considering the reauthorization [don’t quite understand this] plus in this case a judicial record, helped by the fact that Congress has adhered to the interpretation of the law put forward by the courts.
(21) (ii) second, the necessity for authorization arises from the very fact that Congress has itself determined that a review of the legislation versus current conditions must be undertaken.
(22) (iii) third, a reviewing court ought to expect that the condition requiring a law should be less pronounced than those necessitating its re-authorization, which would indicate the success of the law. Otherwise congress would be “damned if it did , damned if it didn’t”: struck down for being successful in the one case, for having made no impact in the other.
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(23) The power of Congress is not limitless in this regard but the question is if the legislative record sufficiently demonstrates that this was rational means of fulfilling its duties under the civil war amendments.
(24) In sum, The court has repeatedly affirmed the rational means requirement for any legislation Congress passes in the domain of voting rights. And both precedent and logic dictate that this means ought to be easier to satisfy when the bill has been repeatedly reauthorized by Congress and upheld by the court as a sensible procedure for securing constitutional rights. [GOOD PARAGRAPG]
III
(25) Preview: the 2006 requthorization of the VRA plainly met the standard requirement of choosing “appropriate” legislation for a “legitimate constitutional end.”
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A
(26) To begin with the evidence Congress amassed in determining the continued efficacy of preclearance, one appropriate measure is how effective preclearance continues to be at blocking discriminatory legislation. On this score it appears that substantially more proposed electoral changes were blocked by the attorney general between 1982–2006 and 1965-1982.
(27) All told the DOJ blocked 700 electoral changes between 1982 and 2004, the majority of them containing discriminatory intent and calculated efforts to keep minorities out of the electoral process. Over the same period 100 successful lawsuits were made by the DOJ and private litigants under the preclearance provision of Sect5.
(28) Besides outright blocking of legislation, DOJ has the power to request more information, which has a deterrent effect on discriminatory law changes. Congress found that 800 such requests had been made over the 82-04 period (a number which excludes many less formal requests for information).
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(29) Congress also received evidence of the inadequacy of lawsuits brought under section 2 of the VRA, which places the financial burdens of litigation on the backs of often poor plaintiffs, and, because it occurs only after the fact, gives those elected by unfair practices the advantage of incumbency in facing lawsuits. Further, the process of precearance is less costly for covered jurisdictions that section 2 lawsuits.
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(30) Not only the number but the type of electoral changes struck down by section five gives an idea of how different the current electoral landscape would be without its protections. The dissent here gives eight examples of laws struck down by preclearance, including an attempt at discriminatory redistricting in Georgia; an attempt to institute a law initially barred in 1987 in Miss.,; the cancellation of an election in Miss. after the announcement of an “unprecedented number of minority candidates”….
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(31) These examples and many like them in the legislative record serve to justify Congress’ finding that voter discrimination remains pervasive in covered jurisddictions.
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(32) Moreover these formal indications of prejudicial practices are only the moost visible indication of prejudicial practices. An “avalanche of case studies” (according to one presenter before Congress) described voting right violations of a less salient type in covered jurisdictions, ranging from outright intimidation and violence to more subtle disuasive tactics.
(33) It’s true that, because of the VRA, voting practices in the south have improved. But Congress in reauthorizing the act judged that because on the one hand the accheivement remained sufficiently fragile, and on the other because discriminatory voting practices were ever evolving, the preclearance provision remained justified. And the court, in City of Rome, concurred that the number and nature of electoral rules stopped by the DOJ remained a firm justification for preclearance. Indeed, the court at that time expressly rejected that voter registration and turnout were the most useful metrics in determining the continued necessity of this provision.
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B
(34) As for Congresses determination of the coverage formula, the evidence just described of DOJ objections to voting law changes in covered jurisdictions itself determined that those jurisdictions should remain covered.
(35) Moreover, it is be admitted that these jurisdictions have a unique history with voter discrimination thuat remains within living memory. And while the court may chide congress for thinking nothing has changed since 1965, the court itself may think that time more removed from today than it is.
(36) And it is instructive that, no matter how much time has between today and the acts initial passage, preclearance (as was found in Northwest Austin) remains justified by “currrent needs.”
(37) Congress learned of the coninued viability of the preclearance formula through something called the Katz study. This counted successful section 2 lawsuits in jurisdictions with preclearance and without, with the expectation that jurisdictions with preclearance should have lower rates.
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(38) In fact the opposite was true. In jurisdictions with preclearance, where there are twentyfive percent of the people, there were 56 percent of section 2 lawwsuits. Controlling for population there were nearly four times as many successful preclearance lawsuits in covered jurisdictions — and these lawsuits were more likely to be successful in covered jurisdictions. The court ignores these findings upon which Congress judged that coverage formula continued to identify the areas of greatest concern.
(39) Congress also heard evidence that voting in covered jurisdictions tends to be more racially polarized than in other areas of the country. This, while not a constitutional problem itself, does point to the vulnerability of minority voters in those areas, because where racial and political divisions are aligned there is more likely to be discriminatory electoral laws.
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(40) Governing bodies have an interest in preserving the majority that elected them and when that majority is a racial majority as well there is a temptation to discriminate against the opposing minority group. Just as some areas are more earthquake prone and require more exacting codes for buildings, areas with a racial polarized electorate are more likely to have discriminatory voting practices, Congress heard.
(41) The case for retaining the coverage formula as it existed hitherto was therefore solid. Besides which, the VRA contains a ‘Bail-out’/ ‘Bail-in’ provisions which give necessary flexibility to the formula: it is within the power of a covered jurisdiction to get out of coverage after a period of good behavior.
(42) Congress was satisfied that the ‘Bail-out’ / ‘Bail-in’ mechanism has been successful in adjusting the number and character of covered jurisdictions. Since 1984 200 jurisdictions have successfully bailed out of coverage and every eligible jurisdiction that has applied for bail-out has granted it. Meanwhile, several jurisdictions have been ‘bailed-in’ including the states of New Mexico and Arkansas.
(43) All of this flies in the face of the courts claim that the VRA is a static law no longer applicable to today’s racial conditions.
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IV
(44) Congress approached the reauthorization of the VRA with considerably more seriousness and care than the court has shown in striking it down. Citing figures of voter registration and turnout it refuses to engage with the wealth and complexity of the evidence.
(45) To deal with just the most disturbing questions this judgment raises 1 how does the court consider that Shelby County has standing to make a facial challenge to the VRA? 2 how does the court depart from established rulings of the equal sovereignty doctrine without acknowledging the shift 3 where is the usual consideration shown to congress when it acts to implement Civil War amendments?
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(46) The court has previously asserted that a facial challenge to the constitutionality of the law should be the most difficult challenge to mount successfully, since it must demonstrate that there is no circumstance in which the law could be constitutionally valid.
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(47) The courts were not intended to make sweeping judgments about the constitutionality of laws but to decide specific cases. And traditionally there has been a principle that litigants can not challenge the constitutionality of a law as applied to others which does constitutionally apply to itself. But the court gives not one word of explanation as to why Congress does not have the authority to subject the particular the plaintiff in this case, Shelby County. Indeed, it would find itself sorely pressed to do so.
(48) Alabama was, during the sixties, an area of instituionalized rachial prejudice at the very center of the civil rights fight.
(49) As Martin Luther King predicted, progress has been made in Alabama but with serious concerns remaining. Alabama is suprpassed only by Mississippi in the number of successful section 2 lawsuits brought against it between 1982 and 2005, and this is the case even while being subjected to pre-clearance. (Footnote: Although the complaint was filed by Shelby County and not by the state of Alabama, of which it is a political subdivision, it is valid to consider the racial history of the whole state, since it is by virtue of being part of that state that it is subject to preclearance. In any case, Shelby County’s ‘at large’ voting procedure is enough to suggest the appropriateness of preclearance.)
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(50) Two examples, then, of how “current burdens” are justified by “current needs” in Alabama as found by the court…. In Pleasant Grove vs United States, the court found unanimously that the city –a near neighbor to Shelby County– annexed neighboring white areas while denying the annexation of a neighboring black one for the strengthening of a racial voting block.
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(51) In Hunter vs. Underwood an Alabama law was struck down that disallowed people convicted of misdeamenors ‘involving moral turpitude’ from voting, a measure, it was decided, that was entirely for the purpose of disenfranchising blacks.
(52) And in Dillard Vs. Baldwin City a federal district judge found that at-large voting in several Alabama counties violate section 2. In a summary of the courts findings it was state that, from the 1800s until today, Alabama has tried insistently to raise barriers to minority voting.
(53) The DIllard litigation ultimately expanded to include almost two hundred counties and municipalities of which Shelby County was one. (Shelby ultimately settled the claims by filling a consent decree.)
(54) In 2008 a city in Shelby county sent a redistricting plan to the DOJ which would have carved up the one majority black district, and, although the DOJ rejected it, the county forged ahead with an election that unseated two black councilmen from the formerly black district. (The DOJ successfuly found redress for this through a section 5 lawsuit.)
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(55) A recent (2010) FBI investigation captured statements of state senators and their allies that provides further insight into the status of race relations in Alabam today. The recorded conversations are shocking on two counts: first for displaying the contempt with which Senators regarded blacks (calling them aborigonese and equating them with illiterates) secondly, explicitly keeping issues off the ballot which would have prompted blacks to vote.
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(56) All of which provides ample evidence that the VRA as applied to Shelby County is constitutional, which should be an end to the question of constitutionality.
(57) The court has consistently rejected Constitutionality questions with respect to the Civil War amendments in cases where the legislation was found to be constitutional as applied, and this case deserves the same approach. [Footnote: I believe this footnote is the cause of Roberts remark that the dissent argues that the coverage was strictly designed to include predetermined jurisdictions and hence has no rational basis.]
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(58) Besides the unsuitability of Shelby County as a litigant, The VRA, having a broad severability clause makes successful constitutional challenges to it even more untenable.(Severability)
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(59) As recently as 2012 the court upheld held the same sort of express severability clause in a law of Congress that it now feels inclined to brush off, in favor of a facial challenge. By neither regarding whether the VRA is constitutionally valid, or even addressing the severability provision, the court has demonstrate blatant judicial overreach.
B
(60) The court prevents the implementation of section 5’s preclearance through denying the formula for coverage in section 4(b) on the grounds that the equal sovereignty of states is a fundamental principle. However, Katzenbach makes clear that this principle only applies to the admission of states into the union, and not to the remedies for local evils that might have subsequently appeared.
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(61) The Court while acknowledging the limits of equal sovereignty presented there seems to think it has been silently overturned, and points only to its own vague comments in Northwest Austin as evidence of this. What was pure dictum in Northwest Austin is here treated as significant precedent, with no treatment by the court of why stare decisis need not be maintained in the case of Katz. (Obiter dictum)
(62) Moreover, the VRA is not the only law that treats disparate states unequally, and it remains uncertain what wider mischief this unprecedented ruling might cause.
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(63/ 64) [Not sure what’s being said here] The court now appears to require that defenders of the VRA not only prove that coverage is justified in the previously covered states but that it is not justified in other states, when Congress, when Congresses initial intention in limiting the geographical scope was to increase the constitituional viability of the law.
C
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(65)In the past, the court has repeatedly upheld legislation of this type (I guess — civil rights legislation) except in the instance of a state with spotless record with respect to the constitution. That is not the case with the states subject to the 2006 authorization, and so the matter should have been left where it stood, in the hands of Congress.
(66) “Like throwing out your umbrella in a rainstorm because you are not getting wet.” The court strikes down the coverage formula because of “current conditions” not realizing that the coverage formula is a crucial part of those conditions; that it is what has made the VRA so effective, and that’s what prevents covered jurisdictions from backsliding.
(67) The court says inaccurately that the coverage formula is based on decade- old data and that, even if it were not so, it must start from scratch — why?
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(68) Congress in 1965 worked backward, deriving a coverage formula with an idea in mind of which states needed to covered. As the formula evolved, other jurisdictions were swept in, which the courts sanctioned.
* (69) The situation before congress in 2006 was not which states belonged under coverage but was preclearance still a needed tool in covered states.
(70) Given the substantial evidence Congress received (a recapitulation here), it had a reasonable basis to conclude that the coverage formula remained in sync with real world conditions.
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(71) “a voice in our democracy undiluted by race”. In pointing out that the literacy tests which the VRA initially put an an end to haven’t been around for forty years, the court overlooks the genius and ambition of the law, which is not just to ban specific discriminitory tests but to put a permanent end to the evolution of such tests — as they have evolved today into second generation redistricting schemes.
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(71) In some ways it’s really the court that believes we remain in 1965 — when we still indulged the idea that discrimination was not an ever-evolving phenomenon and could be thwarted by the simple banning of select voting tests.
(72) The Voting Rights Act is indeed an extraordinary piece of legislation of wide ambition and signal effectiveness.
(73) The lengths that Congress went to in its consideration of the bills reauthorization was also extraordinary. The court errs egregiously in overturning it.
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