The recently argued Supreme Court case Shelby County v. Holder has been in the news thanks, in large part, to Justice Antonin Scalia’s provocative, if ill-considered, remark in oral argument characterizing the Voting Rights Act of 1965 (VRA) as the “perpetuation of racial entitlement.”
That remark has provided the opening wedge for columnists like Linda Greenhouse of the New York Times to denounce the conservative majority of the court for once again flouting judicial restraint by threatening to strike down, by a five-to-four vote, the contested Section 5 of the Act, last renewed in 2006 for twenty-five years. The 2006 version of the VRA toughened what is known as the preclearance standards in Section 5.
Section 5 is tough stuff. It requires that any changes made to the voting procedures of certain states be “submitted to and approved by a three-judge Federal District Court in Washington, D.C., or the Attorney General.” That preclearance mechanism applied to states which, as of November 1964, had chosen to use various tests or devices to exclude racial minorities from the polls, or which had voter registration or turnout of under 50 percent in the 1964 presidential election—a condition which put Alaska on the list along with the hardcore segregationist states.
Section 5 operates as a high-powered enforcement of the basic command of the VRA in Section 2, which provides that “no voting qualification or prerequisite to voting or standard, practice, or procedure shall be imposed or applied by any State or political subdivision in a manner which results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color.” In dealing with that critical issue, it would be tragic if Scalia’s foolish remark dictated the course of public opinion.
The Fifteenth Amendment and Beyond
The simple case against the renewal of Section 5 is that the threat of racism has ebbed, which means that the 1964 benchmark is utterly irrelevant to the rational administration of the law today. Yet in 2006, when it renewed Section 5 of the VRA, Congress refused to move that baseline forward by even a day.
Instead, the VRA remedies have intensified, so that the amended statute no longer counts as “appropriate legislation” under the Fifteenth Amendment, passed in 1870, which entrenched two key constitutional principles. The first one was: “The rights of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.” The second gives the Congress the power “to enforce this article by appropriate legislation.”
In dealing with the Fifteenth Amendment, the term “appropriate” is important. It indicates that Congress cannot do whatever it wants whenever it wants in enforcing the article. Instead, the Court must address the means/end question, which necessarily asks whether any remedy specified by Congress introduces more errors in disposing of voting rights cases than it eliminates. The answer to that question drove the selective inclusion of the preclearance mechanism under Section 5 to deal with the appalling abuse of voting rights in the listed states, mostly in the deep South, and in many counties dotted throughout the nation. Yet, even then Congress limited the remedy to a five-year period, after which Section 2 required case-by-case enforcement.
In 1970, the political valence changed with the departure of key segregationist senators, so that the preclearance period was extended for five more years. In 1975, the VRA was extended for another seven years. In 1982, it jumped to twenty-five years; in 2006, it was renewed for another twenty-five years.
Now, according to the District of Columbia Circuit Court, “congruence and proportionality” leap to the fore in the case. How can a longer period with more stringent guidelines be needed today, when the 2006 version of the Act notes, “significant progress has been made in eliminating first generation barriers experienced by minority voters”?
Indeed the evidence is clear that outright efforts to keep anyone from the polls on the grounds of race are few and far between. Instead, Congress targeted “the second generation barriers” that have been erected “to prevent minority voters from fully participating in the voting process.”
At this point, the VRA has become unhinged from its overly ambitious roots because it engages in the same speculative and over-inclusive form of “disparate impact” analysis that has so warped the enforcement of Title VII of the Civil Rights Act, which concerns employment discrimination. Proponents of the VRA now argue that various changes in the size and composition of voting districts have “diluted” minority votes. As the District Court noted in Shelby County, this “extensive effects test” means that virtually any change can be found to have that effect.
For example, one such attack in Shelby County was on the adoption of “at-large” elections and the 177 local land annexations—which could influence voting outcomes—by the city of Calera, located within Shelby county. These policies had been adopted without going through the preclearance procedures. That direct attack meant that the county could not try to rely on the “bailout provisions” built into the VRA, which permit certain compliant governmental units to get out from under the preclearance rules.
A motive-based inquiry that looks at the intent of the public body in enacting certain voting practices generates better results than the disparate impact approach. To scorn that approach invites all sorts of disparate treatment. Thus there is a steady stream of justice department initiatives that have forced states to adopt grotesquely shaped majority-minority districts, with the sole purpose of maximizing the influence of minority voters.
All of this has met with an uncertain response in the Supreme Court, which tries to have it both ways by applying a standard of strict scrutiny while showing at least some respect to the Justice Department’s handiwork. Yet these complex efforts that rig district lines make it exceedingly hard to determine which, if any, of these initiatives do increase minority representation, given that redrawing the lines for one district necessarily redraws them for others.
At this point, the irony increases. If the Fifteenth Amendment were read as a colorblind provision, all of these redistricting efforts with transparent racial motivations would have to be promptly struck down on the grounds that they deny or abridge the voting rights of all citizens, black or white, who are not in the preferred district. The notorious refusal to take this step is yet another instance in which the ostensible effort to remove race from politics has had the exact opposite effect.
Even if we cut the Attorney General a lot of slack, the aggressive use of the preclearance mechanism does not look like “appropriate legislation” when it applies draconian sanctions to non-racist behavior. At minimum, the preclearance review imposes great expense and delay on states and local governments for an uncertain chance of finding any real substantive violation.
The modern state of play bears little, if any, relationship to conditions on the ground in 1965. Yet the remedial structure is supposed to go unchanged for another generation. The only political agenda is to keep alive the image of discrimination in order to preserve a whole set of race-conscious arrangements that have worked themselves into the fabric of American law.
Preclearance and Affirmative Action
It is critical to draw some needed distinctions. Race-conscious standards are commonplace in all sorts of private institutions that seek to create a desired social environment. The constitution of a group depends not only on the individual merits of its members, but on the composition of the group as a whole, which is why savvy business and military leaders shy away from color-blind rules of membership.
In my view, public school districts, for example, should be allowed to hammer out political compromises that recognize these same concerns, which means that it is a mistake, as Chief Justice Roberts urged in Parents Involved in Community Schools v. Seattle School District NO. 1., to impose these rigid standards in school integration cases. Tested against the behavior of voluntary organizations, the legitimate demand for a race conscious program is just too high. No one would, or should, take the same position on criminal penalties for burglary or murder, where the conscious race calibration of penalties would be rightly regarded as a grievous threat to the administration of justice.
Voting rights arrangements fall somewhere in between, but bear little resemblance to the affirmative action cases to which they are compared. Voting is an act in which no citizen, regardless of race, should have greater influence than any other. Working that rule into effect takes a great deal of effort because there is no system of voting that can make the political power of any group of like-minded individuals strictly proportionate to their numbers, without inviting the grave risks of coalition governments. If minority voters constitute 25 percent of a district drawn on colorblind lines, it is certain that their candidate would lose every election if voters choose to vote strictly on racial lines—which, thankfully, they do not.
It is, in short, not easy to formulate any standard of what conduct “denies or abridges” the right to vote, which in turn means that the government should go easy in using any preclearance scheme to condemn these systems.
The 2006 Renewal
It should now be easier to understand why the preclearance provisions of the VRA are no longer appropriate today and fall outside the powers of the current Congress. The 2006 VRA asserts that it can find strong evidence of racial discrimination in the number of complaints to and investigations by the Attorney General. But by that definition, it is important for the supporters of preclearance to generate enough self-serving activity to justify the application of the statute, without showing how this intervention benefits the electoral process.
Evidence of the current misfit came down from the Supreme Court in 2009 in Northwest Austin Municipal Utility District No. 1, v. Holder, where Attorney General Holder sought to apply the Section 5 preclearance standard to a utility district governed by a staggered board of four members created in 1987, without any history of past racial discrimination. In this case, the Supreme Court ducked the larger constitutional issue on the ground that the district still had a shot at winning exclusion under the VRA’s bailout provision. But the disjunction between the potential for abuse and the tough remedies did not escape judicial notice.
That bailout option is not available in Shelby, where the county raised a facial challenge to the VRA. In the oral argument, Justices Sotomayor and Kagan claimed energetically that Shelby county was one of the few places to which the preclearance mechanism might apply. Yet, by the same token, they could not deflect the point that the county surely had standing to mount a facial challenge that would have to be addressed sooner or later anyhow. They might as well face that challenge today. In so doing, it should clear that the remedial issue cannot be controlled by the endless findings of past injustices or hints of more subtle injustices today. It is still the balance of error that matters, and it has shifted dramatically since 1964.
Under the VRA as it currently stands, we have too much federal intervention too soon, for too long, and for too little cause. The Supreme Court should strike the VRA down and let Congress return to the drawing board for something better.
Richard A. Epstein, the Peter and Kirsten Bedford Senior Fellow at the Hoover Institution, is the Laurence A. Tisch Professor of Law, New York University Law School, and a senior lecturer at the University of Chicago. His areas of expertise include constitutional law, intellectual property, and property rights. His most recent books are Design for Liberty: Private Property, Public Administration, and the Rule of Law (2011), The Case against the Employee Free Choice Act (Hoover Press, 2009) and Supreme Neglect: How to Revive the Constitutional Protection for Private Property (Oxford Press, 2008).