Constitutional Law

What's At Stake When High Court Considers Voting Rights Case?

by Alexis Karteron, Assistant Counsel, NAACP Legal Defense & Educational Fund, Inc. (LDF). LDF represents intervenor-appellees in Northwest Austin Municipal Utility District No. 1 v. Mukasey.

This spring, the Supreme Court will hear Northwest Austin Municipal Utility District No. 1 v. Mukasey (“NAMUDNO”), a landmark voting rights case concerning the constitutionality of Section 5 of the Voting Rights Act. Section 5 requires federal pre-approval, known as “preclearance,” of any changes that concern voting – from polling place changes to statewide redistricting plans – undertaken by certain jurisdictions, primarily in the South, with a history of race discrimination in voting. 

In NAMUDNO, the Court will decide whether the plaintiff-appellant, a small municipal utility district in Texas (the “MUD”) is eligible to “bail out” of Section 5 coverage, thereby terminating its responsibility to submit voting changes for preclearance. Assuming that it decides that the MUD is not the kind of jurisdiction eligible to seek bailout, the Court will then turn to a far thornier question: whether Congress had the authority pursuant to its powers under the Fourteenth and Fifteenth Amendments to reauthorize Section 5 in 2006. The answer will tell us not only whether a critical civil rights statute survives, but also provide insight into the Roberts Court’s views on the extent of Congressional power under the Reconstruction Amendments, the respective roles of co-equal branches in assessing the need for civil rights legislation, and the significance of the persisting voting discrimination identified by Congress in the wake of the election of the first black president.

In 1965, after years of overwhelming resistance by some states to black voting rights, epitomized by the violent repression of civil rights demonstrators on the Edmund Pettus Bridge in Selma, Alabama on Bloody Sunday, Congress enacted Section 5. It determined that a federal role in local decision-making processes concerning voting was necessary both to remedy and to prevent the widespread deprivation of constitutional rights that was bound to occur without such intervention. Section 5 bars the implementation of voting changes without federal preclearance, which is granted only if the jurisdiction demonstrates that the proposed change will not have a discriminatory effect on the ability of minorities to elect candidates of choice, and if the change was not adopted with discriminatory purpose. Although Section 5 was born in 1965, its story certainly does not end there. Congress has carefully studied the continuing need for Section 5 and passed legislation reauthorizing the statute four times since 1965. Most recently, the 2006 reauthorization passed by overwhelming margins in both the House and Senate with bi-partisan support.

The Court in NAMUNDO will likely decide not just the constitutionality of the 2006 reauthorization, but also provide the clearest signal of the Roberts Court’s stance in the ongoing conversation between the Court and Congress on the extent of Congress’s power to enact civil rights legislation. It will be the latest in a line of cases beginning with City of Boerne v. Flores, 521 U.S. 507 (1997), in which the Court has frequently passed harsh judgment on congressional attempts to remedy and deter constitutional violations. While the subject matters of such disputes cover a range of topics, the Court has settled on a single standard by which to evaluate Congress’s enactment of civil rights legislation under the Fourteenth Amendment: the legislation must form a “congruent and proportional” response to the harm it is designed to combat or deter. Though the Court has at times wielded this new federalism doctrine to strike down statutes, it has repeatedly cited Section 5 as a valid exercise of congressional power to enact civil rights legislation, and allowed some laws to stand, such as portions of the Family and Medical Leave Act of 1993, and Americans with Disabilities Act of 1990, in Nevada Department of Human Resources v. Hibbs, 538 U.S. 721 (2003), and Tennessee v. Lane, 541 U.S. 509 (2001), respectively. In addition, the Court has consistently subjected legislation enacted under Congress’s Fifteenth Amendment enforcement power to much less stringent review, requiring that legislation constitute a “rational” response to the harm to be redressed.

In 2006, Congress proceeded to consider reauthorizing Section 5 with these precedents in mind. It compiled a record of more than 15,000 pages, and heard testimony from more than 60 witnesses at more than a dozen hearings. Witnesses presented testimony both in support of and against reauthorization. Ultimately, Congress concluded that the weight of the record before it included extensive evidence of both intentional racial discrimination in voting, and vestiges of such discrimination. It also, however, reached critical conclusions about Section 5’s utility: that the statute was responsible in large part for the reduction of racial discrimination in voting in covered jurisdictions, due to both objections to proposed voting change by the Department of Justice, and the preclearance process’s deterrent effect on discriminatory actions. The Department of Justice issued 792 objections to preclearance requests between 1982 and 2006, with more objections in areas with higher percentages of minority residents, and numerous objections based on indicia of intentional discrimination. This number is greater than the number of objectionable voting changes between 1965 and 1982. In addition, with a record of 855 “More Information Requests” from the Department of Justice to covered jurisdictions in response to preclearance requests, Congress concluded that jurisdictions frequently decided to forgo discriminatory changes because they expected to draw objections.

In NAMUNDO, the plaintiff-appellant will likely continue to maintain that the congressional record concerning contemporary voting discrimination is insufficient to justify Section 5’s intrusion on state authority, and that the statute is, therefore, a response to racial discrimination in voting that is far from “congruent and proportional.” Further, it will likely rely heavily on the notion that Section 5 is an outdated and heavy-handed mechanism in an era when the United States has elected an African American president. 

In defense of the statute, the Department of Justice and intervenors in the case successfully demonstrated in the lower court, and will likely argue again, that Congress acted well within its authority when it decided to reauthorize Section 5, both because the massive congressional record included ample evidence of contemporary discrimination in voting, and because Section 5 had a proven record of success in deterring such discrimination. In short, Congress was entitled make the judgment that Section 5 – with a limit on its geographic reach, an expiration date, and restricted scope – remains necessary to combat race discrimination in voting. 

To hold otherwise would represent not only a break from precedent – the Supreme Court has upheld Section 5 from constitutional attack several times – but mark a significant shift in the Court’s federalism doctrine under City of Boerne and threaten settled separation of powers principles. While the record before Congress was extraordinary in its size and scope as compared to that in other post-Boerne cases, what is even more remarkable is that Section 5 will be the first statute the Court has considered in this realm with such a lengthy track record of success. Striking it down would, therefore, punish Section 5 for its effectiveness, and substitute the Court’s judgment for Congress’s about the continued need for Section 5.  Further, it would establish a clash between co-equal branches of government about the best way to effectuate the overriding goals of the Reconstruction Amendments, to prohibit unconstitutional conduct and to deter it. In sum, at stake in NAMUDNO is not only the future of one of America’s most successful civil rights statutes, but Congress’s ability to make judgments about the prevalence of constitutional violations and to craft appropriate responses.

The election of President Obama provides a powerful backdrop to the Court’s consideration of this case. It is a development that the MUD is likely to cite extensively in its merits briefs. However, for all of the optimism about the state of American race relations that the 2008 election provides, it is important to recognize that some key facts do not match the narrative. For example, the level of racially polarized voting in core states covered by Section 5 was extraordinarily high in the 2008 election. According to exit polls, just ten percent of white voters in Alabama cast a ballot for Barack Obama, and in Mississippi and Louisiana, Senator Kerry received more support from white voters in 2004 than President Obama did in 2008. These vivid examples highlight the relationship between race and voting and underscore the continuing need for Section 5’s protections in ways that support rather than undermine Congress’s findings made just a few years ago. Section 5 should survive to see another day so Congress, and not just the Court, can have an opportunity to consider Section 5’s utility in this new era.

Full post as published by ACS Blog on January 23, 2009 (boomark / email).