A historic Supreme Court decision is imminent, one that could fundamentally reshape the balance of power between federal and state governments as it has existed from almost half a century. The justice are very likely going to strike down one of the two major provisions of the Voting Rights Act of 1965.
Congress passed the VRA, authorized by the Constitution’s Fifteenth Amendment. VRA Section 2 provides that any person whose right to vote is denied or abridged can bring suit in federal court. The federal government can also bring suit on their behalf. The other major provision is Section 5, which provides that certain jurisdictions—mainly states in the South—cannot make any chnges to their voting laws or procedures—even what kind of paper their ballots are printed on—without first going to the U.S. Department of Justice (DOJ) or a federal court in D.C. to request permission to make the change.
Although part of state sovereignty is that states have primary authority over elections, the Supreme Court in the 1966 case South Carolina v. Katzenbach held that Section 5 was authorized by the Fifteenth Amendment because of the egregious and widespread voter suppression in those states in the 1964 presidential election.
This case is Shelby County v. Holder. Shelby County is in Alabama—which is subject to Section 5—and argued that the extraordinary burden on federalism—and where some states are subject to this system of federal control but others are not—is no longer justified under the Fifteenth Amendment in the reality of modern America.
Shelby County is represented by Burt Rein, a partner at D.C.-based law firm Wiley Rein, which often represents constitutional conservative causes before the Supreme Court.
Rein began by noting that a majority of the justices are already on record from a 2009 case as finding “that the record before Congress in 2005 made it unmistakable that the South had changed. They questioned whether current remedial needs justified the extraordinary federal and cost burdens of preclearance.”
Leading liberal Justice Ruth Bader Ginsburg acknowledged that “there isn’t anybody on any side of this issue who doesn’t admit that huge progress has been made,” but listed several states that perhaps should still be covered by Section 5 because they have “the worst records,” and included Alabama on that list.
Rein explained to Justice Stephen Breyer, “The Court said in Northwest Austin [the 2009 case], an opinion you joined, ‘Current needs have to generate the current burden.’ So what happened in 1965 in Alabama, that Alabama itself has said was a disgrace, doesn’t justify a current burden.” Shortly thereafter he added, “Look at what Alabama has [today] in terms of black [voter] registration and turnout. There’s no resemblance [to 1965]. We’re dealing with a completely changed situation.”
Justice Sonia Sotomayor pushed back, arguing, “The reason Section 5 was created was because states were moving faster than litigation permitted to catch the new forms of discriminatory practices that were being developed.”
Rein sought to put that fact in context. The issue with Section 5 is that it is “an unusual remedy, never before and never after invoked by the Congress, putting states into a prior restraint in the exercise of their core sovereign functions, was that justified? And in , the Court said we’re confronting an emergency in the country.”
Yet when Section 5 was reauthorized in 2006, it kept the same formula it used in 1965, where it subjected to Section 5 any jurisdiction that had low minority voter participation on Election Day 1964. Justice Anthony Kennedy commented that the Obama administration is, “rather proud of this reverse engineering: We really knew it was some specific states we were interested in, and so we used these old categories to cover that state.”
Kennedy later added, “It seems to me that the government can very easily bring a Section 2 suit … Are those expensive, time-consuming suits? … Is it an effective remedy?” Rein responded, “The right thing to do is go forward under Section 2 and remove the stigma of prior restraint and preclearance from the states and the unequal application based on data [that’s decades old].”
President Obama’s Solicitor General Donald Verrilli began his argument by touting the massive record Congress had before it from 2005 when it voted in 2006 to reauthorize Section 5. He was making the point that Congress had studied this matter thoroughly before deciding that Section 5 was still necessary.
Chief Justice John Roberts asked Verrilli how many requests for preclearance were submitted to DOJ in 2005. Verrilli didn’t know the answer, so Roberts helped him by telling him it was 3,700.
Then Roberts asked him how many of those requests were objected to by DOJ, indicating the administration thought they would impair minority voting rights. Verrilli answered, “One.” Roberts repeated it for emphasis. “One, so one out of 3,700.”
In other words, how can you seriously claim that a massive federal system that compromises state sovereignty is justified by one possible violation out of 3,700, when you still have the Section 2 system that anyone can sue under at any time when voting rights are violated?
Roberts later came back, asking, “Do you know which state has the worst ratio of white voter turnout to African American voter turnout?” When Verrilli admitted that once again he didn’t know, Roberts told him, “Massachusetts.”
In other words, how is the current formula justified when the measure it uses to find voter suppression is one that suggests far-north, liberal Massachusetts—which is not under Section 5 and has never had a serious problem with racism (in fact, it has a black governor)—is the worst offender?
Shortly after that Kennedy signaled he may have heard enough:
“This reverse engineering you seem so proud of, it seems to me that that obscures the real purpose of the statute. And if Congress is going to single out separate states by name, it should do it by name. If not, it should use criteria that are relevant to the existing [situation.] And Congress didn’t have the time or the energy to do this; it just reenacted it.”
When Verrilli objected that the formula was a good idea in 1965, Kennedy shot back that the Marshall Plan was a good idea after World War II and the Northwest Ordinance was a good idea in the 1700s, “but times change.”
Verrilli insisted that Section 5 was still the way to go, saying it was so much more efficient, speedy, and effective than Section 2.
Justice Samuel Alito then asked Verrilli if Section 5 is such an unmitigated good that protects voting rights better than Section 2, “then why shouldn’t it apply everywhere in the country?”
Then Breyer surprised many in the courtroom. This Clinton-appointed justice is usually reliably liberal, but he has a moderate streak. Breyer asked Verrilli, “So what’s the answer? I just want to be sure that I hear your answer to an … excellent argument that’s been made,” that Section 5’s formula might not make sense anymore, and that if there’s a need to address voter suppression it might need a new approach.
The smart money would say that Breyer is likely to vote to uphold Section 5. But this exchange raises at least the possibility that Section could fall by a 6-3 vote.
Justice Antonin Scalia made the last newsworthy observation in the case. Early in the argument he pointed out that the original 1965 vote in the Senate was 79-18, but that in 2006 it was 98-0. He cites academic literature to say this is something:
“called perpetuation of racial entitlement… Whenever a society adopts racial entitlements, it is very difficult to get them out through the normal political process. I don’t think there is anything to be gained by any senator [voting] against continuation of this [law]. And I am fairly confident it will be reenacted in perpetuity unless a court can say it does not comport with the Constitution. You have to show, when you are treating different states differently, that there’s a good reason for it… It’s a concern that this is not the kind of question you can leave to Congress.”
In other words, it has now become political suicide for elected politicians to vote against Section 5. They would be smeared as racists and lose reelection. So even if Section 5 of the Voting Rights Act is now unconstitutional, the political branches of government could never vote against it.
That’s why the Constitution creates a branch of government shielded from political influence. It’s an additional protection for constitutional government that if something is unconstitutional—but too politically-dangerous to vote against—there is still a way to vindicate the Supreme Law of the Land.
It’s likely a majority of the Supreme Court will do exactly that in Shelby County by holding that Section 5 is not a congruent and proportional remedy for current voter suppression, and thus no longer authorized by the Fifteenth Amendment of the Constitution.
A decision is expected in late June.
Breitbart News legal columnist Ken Klukowski is a fellow with the American Civil Rights Union.