Why The Renewed Voting Rights Act Will Pass Constitutional Muster - Despite Predictions that the Roberts Court May Strike It Down

The House of Representatives is poised to vote on legislation (H.R. 9) to renew the expiring provisions of the 1965 Voting Rights Act (VRA). With support from the leadership of both parties, it is likely to pass.

Some have argued - including Richard L. Hasen, in a recent column for this site -- that the Supreme Court may well strike down the renewed Act as unconstitutional, and that Congress therefore should not renew the Act without significant modifications to the statute.

In this column, I'll explain why I disagree. Of course, it is impossible to predict what the Court will do. But in fact, none of its recent decisions casts serious doubt on the constitutionality of a renewed VRA. In addition, a number of Court decisions expressly approve Section 5 of the VRA - the section most likely to be attacked as unconstitutional -- and affirm its importance.

Accordingly, Congress should go forward with the legislation as is. While the renewed VRA will doubtless be challenged in court on constitutional grounds, that lawsuit should fail.

What's At Stake: The Key Voting Rights Act Provisions to Be Renewed

Since its passage in 1965, and in recognition of the ongoing racial polarization and discrimination that has continued to infect the political process, the VRA was extended and strengthened in 1970, 1975, 1982, and 1992, with the support of five Presidents -- Johnson, Nixon, Reagan, Ford, and George H.W. Bush. The act was expanded in 1975 to include protections for citizens with limited English proficiency -- speakers of Spanish, Asian, Native American, and Alaskan Native languages - meaning that millions more Americans gained new tools to ensure fundamental fairness in the voting process.

Over the years, the VRA has guaranteed millions of Americans the equal opportunity to participate in the political process. It is one of the most successful civil rights laws ever enacted.

The genius of the act was not just that it abolished literacy and other tests, which had been used to deny minorities the right to vote. Section 5 of the act also prohibited "covered jurisdictions" from implementing new voting practices without first preclearing them with federal officials. That meant discriminatory practices, even if proposed, never took effect - protecting voters before they faced discrimination, not afterwards.

In August 2007, three crucial sections of the Act will expire unless Congress votes to renew them: the pre-clearance requirements of Section 5, which apply to nine states and portions of seven others; the minority language requirements of Sections 4(f)(4) and 203, which apply to 500 local jurisdictions across 31 states; and Section 8, which authorizes the attorney general to appoint election observers to document and deter intimidation of minority voters.

It is Section 5, however, that is likely to provoke a lawsuit - one that will likely fail, for reasons I'll explain now.

Prior Challenges to the Constitutionality of Section 5 Have Failed

The constitutionality of Section 5 has been challenged in the past, but the challenges have been rejected. When Section 5 was enacted in 1965, South Carolina, along with Alabama, Georgia, Louisiana, Mississippi, and Virginia, challenged it as unconstitutional. But the Supreme Court rejected the challenge in South Carolina v. Katzenbach, citing the "unremitting and ingenious defiance of the Constitution" in certain sections of the country, the failure of the case-by-case method to end discrimination, and the repeated attempts by local jurisdictions to evade the law by enacting new and different discriminatory voting procedures.

In Katzenbach, The Court acknowledged that Section 5 was an "uncommon exercise of Congressional power," but it found that Congress's enactment was justified by the exceptional history of voting discrimination in the effected jurisdictions.

After Congress extended Section 5 in 1975, the City of Rome, Georgia, argued that the preclearance requirements violated principles of federalism, and that even if the requirements had been constitutional when first enacted, "they had outlived their usefulness by 1975."

The Court rejected the federalism argument in City of Rome v. United States, noting that the Fourteenth and Fifteenth Amendments "were specifically designed as an expansion of federal power and an intrusion on state sovereignty." As for the argument that Section 5 had outlived its usefulness, the Court concluded that "Congress' considered determination that at least another 7 years of statutory remedies were necessary to counter the perpetuation of 95 years of pervasive voting discrimination is both unsurprising and unassailable."

After the extension of Section 5 in 1982, Sumter County, South Carolina, filed another challenge to the constitutionality of the statute. It contended that the 1982 extension was unconstitutional because the trigger, or coverage formula, was outdated. The county pointed out that as of May 28, 1982, more than half of the age eligible population in South Carolina and Sumter County was registered to vote, facts which it said "distinguish the 1982 extension as applied to them from the circumstances relied upon in South Carolina v. Katzenbach, supra, to uphold the 1965 Act."

That changed-circumstances argument, however, was rejected by the three-judge federal court that had the last word in the case. (The county did not seek review in the Supreme Court.). The court held that Section 5 "had a much larger purpose than to increase voter registration in a county like Sumter to more than 50 percent."

The Court's Federalism Decisions Do Not Suggest that the VRA Will Be Struck Down

Some have cast constitutional doubt on the extension of Section 5 based on a series of Supreme Court federalism decisions beginning with City of Boerne v. Flores in 1997. Boerne invalidated the Religious Freedom Restoration Act of 1993 (RFRA) because of an absence of "congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end." Some argue that changed factual circumstances mean that the VRA, too, lacks the necessary "congruence and proportionality."

However, Boerne repeatedly and quite specifically cited the VRA as an example of congressional legislation that was constitutional. Indeed, it held that Section 5 was an "appropriate" measure "'adapted to the mischief and wrong which the [Fourteenth] [A]mendment was intended to provide against'."

Moreover, in 1999, in Lopez v. Monterey County, the Court expressly relied upon Boerne in rejecting California's challenge to the constitutionality of Section 5. California had argued that Section 5 "could not withstand constitutional scrutiny if it were interpreted to apply to voting measures enacted by States that have not been designated as historical wrongdoers in the voting rights sphere." The Court disagreed. Citing Boerne, it held:

[l]egislation which deters or remedies constitutional violations can fall within the sweep of Congress' enforcement power even if in the process it prohibits conduct which is not itself unconstitutional and intrudes into legislative spheres of autonomy previously reserved to the States.

After Boerne, the Court invalidated acts of Congress in four other cases - the Patent Remedy Act in Florida Prepaid Postsecondary Education Expense Board v. College Savings Bank; provisions of the Age Discrimination in Employment Act in Kimel v. Florida Board of Regents; a section of the Violence Against Women Act in United States v. Morrison; and a portion of Title I of the Americans with Disabilities Act in Board of Trustees of the University of Alabama v. Garrett. But in all these cases, the Court noted the constitutionality of acts of Congress, including the VRA, passed pursuant to the Fourteenth and Fifteenth Amendments to remedy or prevent racial discrimination in voting.

Two subsequent decisions, moreover, indicate that the Court would not apply the strict "congruence and proportionality" standard of Boerne where Congress has legislated to prevent discrimination on the basis of race or to protect a fundamental right, such as voting:

As recently as 2003, in Nevada Department of Human Resources v. Hibbs, the Court affirmed the constitutionality of the family leave provisions of the Family and Maternal Leave Act, concluding that Congress had greater leeway in remedying gender discrimination, as opposed to discrimination based upon age. (This conclusion was significant for Section 5 purposes because discrimination on the basis of race is subject to even greater constitutional scrutiny than discrimination on the basis of gender.)

The Court also cited with approval its decisions rejecting challenges to the VRA "as valid exercises of Congress' § 5 power [under the Fourteenth Amendment]."

Then, in 2004, in Tennessee v. Lane, the Court held that Title II of the Americans With Disabilities Act, as applied to the fundamental right of access to the courts, "constitutes a valid exercise of Congress' § 5 authority to enforce the guarantees of the Fourteenth Amendment." According to the Court, "the appropriateness of the remedy depends on the gravity of the harm it seeks to prevent."

In sum, none of the recent federalism decisions of the Court casts doubt on the constitutionality of Section 5.

Further Reasons the VRA is Constitutional: Its Bailout, Sunset, and Geographic Limitations

The existing Section 5 "bailout" option further demonstrates that an extension of the preclearance requirement would be "congruent and proportional" within the meaning of the Boerne line of cases. The bailout allows any jurisdiction to escape coverage by showing that it has had a clean voting rights record during the preceding ten years, and that it has engaged in constructive efforts to promote full voter participation.

The 25-year sunset provision contained in H.R. 9 - the current House Voting Rights Act renewal legislation -- and S.2703, its Senate counterpart, as well as the limited geographic application of Section 5, also argue for the act's constitutionality. Boerne, for example, held that while legislation implementing the Fourteenth Amendment did not require "termination dates" or "geographic restrictions . . . limitations of this kind tend to ensure Congress' means are proportionate to ends legitimate."

The Case for Extending and Strengthening the VRA

Some have argued that Congress must produce a strong record of intentional state discrimination to justify renewal of the VRA. But as Professor Pamela Karlan noted in her testimony before the Senate Judiciary Committee last month, "a congressional conclusion that the extension of section 5 serves an important deterrent function need not rest on what has been referred to as 'trial-type' evidence of current constitutional violations."

Furthermore, there is already strong evidence supporting the renewal of the VRA. The House Report on H.R. 9, with its 12,000 pages of testimony and documentary evidence from over 60 groups and individuals, clearly establishes that "instances of discrimination and efforts to discriminate against minority voters continue, thus justifying reauthorization of the VRA's temporary provisions."

The legislation now pending before Congress also strengthens the statute in other meaningful ways:

In 2000, in Reno v. Bossier Parrish II, the Supreme Court undermined Section 5 by requiring preclearance of purposefully discriminatory voting changes with discriminatory effects, as long as the changes do not make minority voters worse off than under the preexisting system. Bossier II is contrary to the original intent of Congress and is a parody of what the VRA stands for.

In 2003, in Georgia v. Ashcroft, the Court introduced new, difficult-to-apply, and contradictory standards for determining "retrogression" under Section 5. According to the Court, the ability to elect is "important" and "integral," but a court must now also consider the ability of minority voters to "influence" and elect "sympathetic" representatives. The danger of the Court's opinion is that it may allow states to turn black and other minority voters into second-class voters, who can "influence" the election of white candidates, but cannot elect candidates of their choice, or, if they so choose, of their own race. That is a result Section 5 was enacted expressly to avoid.

The inherent fallacy of the notion that influence can be a substitute for the ability to elect is apparent from the Shaw v. Reno line of cases, which were brought by whites who were redistricted into majority black districts. Rather than relish the fact that they could "play a substantial, if not decisive, role in the electoral process," and perhaps could achieve "greater overall representation . . . by increasing the number of representatives sympathetic to the[ir] interest," white voters argued that placing them in "influence" districts - that is, majority black districts -- was unconstitutional, and the Supreme Court agreed.

Both the House and Senate bills remedy Bossier II and Georgia v. Ashcroft by providing that any discriminatory purpose violates Section 5, and that the ability to elect -- not the ability to influence -- is the standard for determining retrogression. The bills would also allow prevailing plaintiffs to recover the costs of their expert witnesses -- generally a major expense in lawsuits brought to enforce the VRA.

The Supreme Court has called the right to vote "a fundamental political right, because preservative of all rights." The House and Senate bills will help ensure that the fundamental right to vote remains a reality. Although it is possible that the Roberts Court might find the renewed VRA unconstitutional, the likelihood of that happening is certainly not so great as to justify pre-emptively weakening the statute.