The author of this article is not a constitutional law scholar, and the opinions expressed herein are the opinions of the author alone.
The Supreme Court of the United States heard argument last week on an appeal by Shelby County, Alabama which challenged the constitutionality of the Voting Rights Act (the “VRA”). The part of the VRA in question requires certain parts of the country, parts with a history of racial discrimination, to submit proposed changes to their voting procedures to the federal government to be reviewed before they may be changed. (See South Carolina v. Katzenbach, 383 U.S. 301 (1966)(“After enduring nearly a century of systematic resistance to the Fifteenth Amendment, Congress might well decide to shift the advantage of time and inertia from the perpetrators of the evil to its victims.”))
Review of the VRA calls requires consideration of two Constitutional tests: the ancient and well-respected rational basis test and the “congruence and proportionality” test which was only announced by the Supreme Court in 1990. It is the latter of the two tests which, especially in the context of Shelby County v. Holder, implicates serious Constitutional problems.
The VRA was passed in 1965, and was created for the purpose of prohibiting any state from imposing a “voting qualification or prerequisite to voting, or standard, practice, or procedure … to deny or abridge the right of any citizen of the United States to vote on account of race or color.” This was in direct response to acts by states seeking to continue the disenfranchisement of minorities through discriminatory tests and voting practices, and represented a landmark in America’s march toward providing and protecting civil rights for all of its citizens. The Department of Justice describes the foundation for the VRA thusly:
The legislative hearings showed that the Department of Justice’s efforts to eliminate discriminatory election practices by litigation on a case-by-case basis had been unsuccessful in opening up the registration process; as soon as one discriminatory practice or procedure was proven to be unconstitutional and enjoined, a new one would be substituted in its place and litigation would have to commence anew.
The formula used to determine which states and other jurisdictions subject to the VRA is set forth in Section 4 of the VRA. Jurisdictions deemed subject to the VRA, most of which are in the South, are then required to comply with the provisions set forth in Section 5 of the VRA which mandates the a review by either the Justice Department or a panel of three federal judges to ensure that the proposed changes does not have the purpose of and will not have the effect of discriminating on the basis of race or color.
Many commentators believe that after argument last Wednesday, a majority of the Justices will be voting in favor of striking down Sections 4 and/or 5 of the VRA. The question is — after upholding the Voting Rights Act previously — why strike it down now? And under what authority?
The Voting Rights Act implicates the Fourteenth Amendment to the Constitution, which granted Congress the power to “enforce, by appropriate legislation” its provisions. The Fourteenth Amendment, for its part, prevents any state from making or enforcing a law which would deprive its citizens of Due Process or Equal Protection, along with other protections found in the First, Second, Fourth, Fifth and Sixth Amendments.
In City of Boerne v. Flores, 521 U.S. 507 (1990), the Supreme Court discussed how Congress has the power under the above section to deter or remedy constitutional violations by prohibiting conduct that is not itself unconstitutional, but has unconstitutional effects. However, that power is not unlimited, and the Court stated that there must be a “congruence and proportionality between the injury to be prevented or remedies and the means adopted to that end.” See City of Boerne, 521 U.S. at 519-20.
The last time the Voting Rights Act was challenged at the Supreme Court was Northwest Austin Mun. Util. Dist. No. One v. Holder, 557 U.S. 193 (2009), at which time the VRA was upheld as Constitutional. In that case, the Court declined to decide whether the VRA must be only rationally related to a legitimate government interest or subject to the most stringent “congruence and proportionality” test. See Northwest Austin v. Holder at 557 U.S. at 205.
In Northwest Austin v. Holder, the Court previously reviewed a part of the VRA and upheld it as constitutional. In doing so, the Court reaffirmed its duty as “the bulwark of a limited constitution against legislative encroachments,” and acknowledged that Congress, as “a coequal branch of the government,” had made the decision, based upon a sizeable record, that the VRA was still necessary. See Northwest Austin v. Holder, 557 U.S. at 206.
Unfortunately, it appears as if the Court may be backtracking from its prior position of judicial restraint. There is one quote from Justice Kennedy, the typical “swing-vote” between the liberal and conservative Justices, which has been widely reported, which I believe clearly evinces the Court’s present mindset. From the New York Times:
“Well, the Marshall Plan was very good, too, the Morrill Act, the Northwest Ordinance, but times change.”
From his statements, it appears that Justice Kennedy believes that the “congruence and proportionality” test is the appropriate test to apply to the VRA, and that under that test, the VRA is no longer justified. For proponents of the VRA, this is troubling.
The Voting Rights Act has been around for many years, and represents one of the crowning achievements of the Civil Rights Era. It has been re-enacted by Congress, as recently at 2006, and has been before the Supreme Court for review as recently as 2009. For the Supreme Court to strike down the law, or provisions of it, based on an apparent “time change” rationale, appears to constitute a departure from previous decisions.
In the Northwest Austin decision, the Court stated that they were mindful that “judging the constitutionality of an Act of Congress is ‘the gravest and most delicate duty that this Court is called on to perform.’” Northwest Austin v. Holder at 557 U.S. at 206 (citing Blodgett v. Holden, 275 U.S. 142 (1927)). Yet we live in a time where, it appears, that extremely complex questions of law are being reduced to soundbites, and that those who we have put in charge of running this country are taking increasingly simplistic and politicized positions.
Congress reauthorized the law in 2006 after extensive review and research, and it doesn’t take an expert to know that there are those in this country who would still attempt to disenfranchise certain groups when it comes time to vote. It is further clear that the prophylactic approach of Section 5 (requiring preclearance) is an effective tool to prevent discrimination, even if there are other statutory sections which would provide relief in other ways (e.g. Section 2).
The issue that is before the Court today is not only the issue of whether the VRA is constitutional, but whether the “congruence and proportionality” test — which is fairly new in Constitutional law — can be used by the Court to, effectively, legislate from the Bench when they feel that a statute is no longer necessary. Perhaps Justice Scalia, the conservative Justice who would probably use the “congruence and proportionality” test to strike down Section 5 of the VRA if possible, said it best:
I yield to the lessons of experience. The “congruence and proportionality” standard, like all such flabby tests, is a standing invitation to judicial arbitrariness and policy-driven decisionmaking. Worse still, it casts this Court in the role of Congress’s taskmaster. Under it, the courts (and ultimately this Court) must regularly check Congress’s homework to make sure that it has identified sufficient constitutional violations to make its remedy congruent and proportional. As a general matter, we are ill advised to adopt or adhere to constitutional rules that bring us into constant conflict with a coequal branch of Government. And when conflict is unavoidable, we should not come to do battle with the United States Congress armed only with a test (“congruence and proportionality”) that has no demonstrable basis in the text of the Constitution and cannot objectively be shown to have been met or failed.
Tennessee v. Lane, et al., 541 U.S. 509 (2004)(Scalia, J, dissenting)
We won’t know for a while how the Court will decide, but one can only hope that the Court remembers its role as the neutral adjudicator of the laws, rather than the legislators themselves.
Brian Mangan is an attorney living in New York City.