majority opinion (written by Roberts, joined by Scalia, Kennedy, Thomas, Alito)
***
{1} Voting Rights Act employed extraordinary measures to address the extraordinary problem of entrenched racial bigotry in the south: Section 5 of the act gave the Federal government authority over the voting laws of states, and section 4 established that this provision was extended only to select states. Reflecting the exceptional conditions which made these provisions appropriate, they were scheduled to elapse after five years.
(2) 50 years later, these extraordinary conditions are no longer present. In five of the six originally covered states, african american voters exceed white voters and, in all of the originally covered states, the racial gap in registration and turn out is less than the national average. [Cited, the northwest austin case and Census Bureau report].
(3) Although voting discrimination persists, the question is, does it persist to the extent that the extraordinary measures of the act continue to meet constitutional muster.
I
A
history of the voting rights act: the historical conditions and legal prerogatives that made it necessary, sections 4 and 5, its renewal, challenges in the courts
(1)
the fifteenth amendment allows that the right of any citizen to vote shall not be denied or abridged for reason of his race or previous condition of servitude and provides congress with the authority to enforce that right.
(2) for a hundred years Congress substantially failed to uphold the law, as minority citizens of the South Eastern states [but not FLA?] were effectively denied their right to vote. Primarily this was achieved through literacy tests and the like, which could be reconfigured to skirt the letter of federal law while retaining their discriminatory intent.
(3) section two of the voting rights act, which was made law in 1965 toward the height of the civil rights movement, established that all such voting practices were illegal. Section two applied to all fifty states and is not at issue in the current case.
(4) other sections of the law pertained only to certain states (or counties). these “covered” states were those that had in place a discriminatory prerequisite to voting as of Nov 1, 1964, and had less than 50 percent voter turnout or registration in the 1964 presidential election. A covered jurisdiction could “bailout” of coverage if it had not had such a law in place in the preceding five years.
(5) in those covered jurisdiction, section 4 provided that all such discriminatory voting tests were banned and, section 5 required that any change of voting procedures would require “pre-clearance” from a federal authority, either the Attorney General of the United States or a court of three judges.
(6) These aspects of the law (set to elapse after five years) received legal challenge but was upheld by the court, on the grounds they were justified where voting discrimination ‘persists on a massive scale.’
(7) Five years later, In 1970, Congress reauthorized and updated these sections.
(8) Five years later, in 1975, Congress again reauthorized and update these sections, including also an expansion of the definition of “test or device”: voting materials presented only in English, where over five percent of the population spoke a single language other than English, was now included in this definition. Congress forbid discrimination on the basis of being in a “language minority.”
[The opinion seems to stress here that, on each occasion the sections are reauthorized, more and more jurisdictions are considererd as “covered”, including some, in CA, AZ and NH for example, not considered to have a history with prejudicial voting laws.]
(9) 1982 Congress reauthorized the act for another twenty-five years without changing the coverage formula but altering somewhat the conditions to be met for a jurisdiction to “bailout”: (a) could not have lost a section 2 lawsuit; should not have failed to receive preclearance or to have implement a forbidden test, within ten years. It also provided that political subdivisions within covered jurisdictions could apply for bailout.
(10) Each of these authorizations was challenged on constitutional grounds and each time the constitutionality of the court was upheld by the court.
(11) in 2006 Congress again reauthorized the act for 25 years and again expanded section 5, forbidding election laws that on the basis of race, ethnicity or language minority status that diminish a voter’s ability to elect the candidate of their choice.
(12) Shortly following the 2006 reauthorization a Texas utility sought to bailout from coverage and in the alternative questioned the constitutionality of the law. A three-judge District court ruled that the utility district did not have standing to bailout, as it was not a “political subdivision.”
(13) The court reversed (Here some confusion: was it on statutory or constitutional grounds, did the court decide the utility district was a ‘political subdivision’?) and in doing so expressed doubts about the continued constitutionality of the law.
(14) The court observed that the law imposes substantial costs on states while denying them equal sovereignty. Meanwhile conditions in the originally covered states had improved: registration and voter turn out rates were approaching parity; there were more minority office holders; and blatantly discriminatory electoral laws seem largely a thing of the past.
(15) Eight members of the court agree with this decision while the ninth would have held the act unconstitutional. But the constituional question was left for another day.
B
(16) Shelby County did not seek bailout but, having recently been denied preclearance for an internal proposed voting procedure, sued the Attorney General in District Court. They sought a declaratory judgment that sections 4(b) and 5 of the act were unconstitutional and permanent injunction against their enforcement. The court found against the plaintiff and upheld the act.
8
(17) The D.C circuit court of Appeals, considering six main categories of evidence, affirmed the ruling. These categories were: the objections of the attorney general to voting changes; attorney general requests for more information concerning voting changes; successful section 2 lawsuits in covered jurisdictions; the dispatching of federal observers to monitor elections in covered jurisdictions; successful preclearance suits in covered jurisdictions; the deterrent effect of section 5. [Do I know why all of those categories would be of interest to the court in coming to a decision] After making this review the court determined, as Congress had in reauthorizing the law, that the section 2 protections of minority voters remained inadequate without the powers invoked by section 5.
(18) On the question of the continued constitutionality of section 4, [recall, that which establishes which states shall require special supervision] the court expressed less conviction but, based on the evidence of the national distribution of successful section 2 lawsuits, and in a belief in the continued deterent value of section 5, upheld this section as well.
(19) Judge Williams of the District Court dissented. About the section 2 lawsuits he pointed out that the five worst uncovered districts were worse in this respect than eight of the covered jurisdictions and indicated that two covered jurisdictions, Arizona and Alaska, had no such successful lawsuits. Furthermore, he found no positive correlation between covered jurisdictions and low black registration or turnout. To the contrary, covered jurisdictions had higher black turnout and registration and, additionally, far more black office holders as a percentage of the black population.
[Some concerns here. Although the VRA is intended for the benefit of blacks it is not only for the benefit of blacks, which is suggested here. Also, what is meant by jurisdictions here? States, counties?]
[20]. Certiorari. At this point the Supreme Court became involved.
9
II
(21) Two basic principles, stated in the Northwest Austin decision, govern the court’s present reasoning: that current burdens must be justified by current needs; and that the equal sovereignty of states is a principle so fundamental that any statute which departs from it must be adequately justified.
A
(22) The constitution does not allow for the federal government to veto state laws before they go into effect. This sort of “negativing” of state laws was considered at the constitutional convention was considered then rejected in favor of allowing state laws to take effect first.
(23) [supremacy clause], [10th amendment]. Outside of the Supremacy Clause, states retain considerable latitude in determining their internal affairs, as is made explicit in the tenth amendment which reserves for private citizens and states rights that haven’t been expressly enumerated. According to Bond v. United States, this arrangement preserves the unique identity of states while “diffusing” sovereign power.
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(24) Of course, the constitution gives the Federal government significant powers over the determination of federal elections, but by and large it is left to states to determine the particulars of how its citizens will elect its officials.
(25) There is also, dating back to at least 1910, a principle of equal sovereignty among the states.
[It surprises me that this “fundamental principle” is not present in the Constitution or any founding documents. Rather there is, apparently, a ‘historic tradition’ of equal sovereignty.] [*]
11
(26) The Voting Rights Act sharply departs from this tradition, on the one hand, giving the Federal government unprecedented oversight of over state’s internal affairs,
(27) On the other, imposing this burden only on select states. The result is that one state can pass new electoral laws far more quickly than its neighbor, through the normal legislative process. Moreover, section 2 lawsuits are more easily navigated by notn-covered jurisdictions.
(28) It is for these reasons that the court has long made note of the extraordinariness of these provisions of the act.
12
B
(29) Before passage of the Voting Rights Act only small minorities of the black population were registered to vote in States that would later be considered as “covered”. This was the result of descriminatory voting laws, which could be easily changed to conform with federal regulations, eluding their intent.
(30) These extraordinary conditions compelled Congress to take extraordinary measures in dealing with them.
13
(31) At the time the act was introduced, the coverage formula made sense — a state’s use of voting tests or devices; low minority voter registration/ turnout in a state during the 1964 presidential election– as it properly identified states in which discriminatory electoral laws were a problem.
C
(32) Fifty years after the act was passed, the situation on the ground in covered counties has changed dramatically. Shelby county contends that (irrespective of the issue of disparate coverage) preclearance is unconstitutional. They cite that minority/ majority registration and turnout now approach parity; that unprecedented numbers of minorities are office holders; that discriminatory evasions of federal election law are rare. For over forty years discriminatory tests and devices have been forbidden.
[14]
(33) Congress itself, when reauthorizing the act in 2006, admitted that significant strides had been made in these respects in the covered jurisdictions.
(34) As presented in a chart included in the House and Senate reauthorization bill, it appears that African American voters have indeed closed the gap with white voters in terms of voter registration between 1965 and 2004 in the six originally covered states. Moreover, the rates at which the attorney general objected to voting laws during the preclearance process also suggest an improving situation with respect to non-discriminatory voting practices.
[15]
(35) Today, towns where there occurred some of the worst racial violence are today governed by black mayors. Although certainly The Voting Rights Act is responsible for much of this change, and while there remains work to be done in the realm of racial toleration and equality, there is no doubt that we’ve made significant strides.
[16]
(36) Though the conditions of minority voters have improved Congress has done nothing to ease the restrictions of preclearance or to narrow the formula for coverage. To the contrary, besides reauthorizing the act for another 25 years — a far cry from the initial 5– it expanded it’s idea of a discriminatory voting practice to include (not just redistricting that was disadvantageous to minority voters) but redistricting which might have been advantageous, but was not, for a discriminatory purpose. Anything that might deter a voter from electing their “preferred candidate of choice.” To judge from actions of Congress, there has been no improvement in racial equality in the past fifty years.
[17]
[37] Further, nothing has occurred that alleviate a previously highlighted concern of the court, that the preclearance requirements of one state might be unconstitutional in another.[–don’t understand that quite]
[38] It may be argued, of course, that the improvements in the covered states are owing to the deterrent effect of Section 5 and that discriminatory practices would resume if it should be struck down. However, by this logic covered jurisdictions could never redeem themselves: no matter how good their record was, it could be argued it was strictly because of 5’s “deterrent effect.” [Doesn’t this ignore the “Bailout” provision?}
[39] The provisions of section 5 only apply to those singled out by section 4. We now turn to a consideration of whether that formula remains appropriate in the wake of changed social conditions.
III
A
[40] When looking initially at the constitutionality of coverage, it seemed a rational formula for the application of a rational remedy to an egregious social evil.
[41] Now, however, the extraordinary conditions that initially justified the coverage formula no longer obtain.
18
[42] The coverage formula is outdated: it is based on literacy tests that have been banned nationwide for forty years and on drastically low african american voter turnout and registration, which is now at or approaching parity with whites.
[43] In 1965 it was fairly clear which states had a problem with racial discrimination and which didn’t. Today it is no longer so clear.
B
[44] The governments defense of coverage is two-fold: it first argues that initially the coverage formula was “reverse engineered”, that is, designed so as to capture the states initially under coverage; and second that, so long as there remains discrimination in states regarded as having once been discriminatory, coverage remains valid.
19
[45-46] As to the first point, to say that Congress taylored the formula exclusively to capture the states initially brought under coverage is to say there is no logical connection at all between the formula and those it identifies as discriminatory, which has not been the court’s view in the past.
[47] As to the second it is indeed true that with the history of blacks in the south, first with slavery and then with Jim crow, there was reason in 1965 to consider the past of covered districts in crafting legislation intended to counterbalance its lingering effects.
20
[48] But history didn’t end in 1965: the situation in the south has improved yet Congress continues to use this same yard stick in determining which districts are deserving of special treatment.
[49] Congress, in renewing outmoded legislation, is using the 15th amendment to punish select states for past acts.
C
[50] It’s true that congress compiled thousands of pages of data in reauthorizing the act which they say continues to justify disparate coverage. However, this data can be variously interpreted and doesn’t point to a clear conclusion. In any case, it certainly doesn’t amount to the sort of widespread, rampant, pervasive, discrimination with which Congress was faced in 1965.
21
[51] A still more fundamental problem is, whatever this data might have suggested, Congress did not use it to reconfigure it coverage formula. The dissent argues that vote dilution still justifies coverage but this only heightens this absurdity of basing the formula for coverage on voting tests and registration.
[51] Finally, the dissent claims that Shelby County, in light of its discriminatory voting practices, does not have standing to object to preclearance. But it isn’t so: once right to complain about one law is not abrogated by having failed to follow another.
22
D
[52] The dissent now asserts the flexibility of Congress in crafting legislation consistent with the letter and spirit of the constitution but, four years previous, in Northwest Austin, it agreed that the case raised “serious constitutional questions.” What’s changed?
[53] The dissent, moreover, has no appreciation of the extraordinary character of the requirements of sections 4 and 5 of the act, though the court has stressed in several places the exceptional quality of these statutes.
23
[54] Many of the points argued here –the equal sovereignty of states, the progress made in civil rights, the necessity of strong justification for disparate geographic coverage– were presented first in Northwest Austin; yet many who agreed with that decision now treat it as if it didn’t exist.
[55] If Congress were to rewrite the bill from scratch in 2006 it would not have relied on a formula for coverage based on the social conditions of forty years ago. But that is precisely what it had done in reauthorizing the bill.
24
[56] Although striking down an act of congress is not be done lightly we gave congress fair warning of our constitutional concerns with respect to section 4(b) of the Voting Rights Act and now strike down that provision. That formula for coverage may no longer be used as a basis for determining which districts are subject to preclearance.
[57] This decision in no way affects section 2 of the law and we have no holding on section 5, nor do we prohibit congress for issuing a new coverage formula based on current conditions. Finally this is not to be construed as a statement that racial discrimination no longer exists, but only that the legislation intended to deal with it be tailored to current conditions.
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