Government paper (Texas voter ID law and the voting rights act (1965))

505

FEDERAL GOVERNMENTAL POWER:

THE VOTING RIGHTS ACT

Michael C. Dorf *

I. BACKGROUND

Following the contested election of 1876, as part of the com-

promise that gave the United States Presidency to Rutherford B.

Hayes, Union troops were withdrawn from the states of the former

Confederacy. 1 As a more or less direct consequence, the formerly

enslaved African Americans, who had begun to exercise political

power under Reconstruction, 2 were once again disenfranchised.

3 The

Fifteenth Amendment would remain all but a dead letter until the civ-

il rights movement of the mid-twentieth century.

Along with direct challenges to Jim Crow came legal chal-

lenges to the various restrictions and qualifications that states and

their subdivisions placed on African-American suffrage. 4 Literacy

tests were a favorite device. 5 As Justice Thomas recounted in his

separate opinion in Northwest Austin Municipal Utility No. One v.

Holder 6 (“NAMUNDO”), such tests dated back to the period imme-

* Robert S. Stevens Professor of Law, Cornell Law School. This Article is based on an oral

presentation given at the Practising Law Institute‟s Eleventh Annual Supreme Court Review

Program in New York, New York. The printed text retains much of the conversational style

of the initial presentation. Many thanks to the editors of the Touro Law Review for supply-

ing formal citations for my oblique references. 1

Darren Lenard Hutchinson, Racial Exhaustion, 86 WASH. U. L. REV. 917, 940-41

(2009). 2

Donald G. Nieman, From Slaves to Citizens: African-Americans, Rights Consciousness,

and Reconstruction, 17 CARDOZO L. REV. 2115, 2129-30 (1996). 3

Hutchinson, supra note 1, at 942. 4

Id. at 965. 5

Id. 6

129 S. Ct. 2504 (2009).

506 TOURO LAW REVIEW [Vol. 26

diately following the adoption of the Fifteenth Amendment. 7

Literacy tests were an effective tool of racially selective dis-

enfranchisement because, as a legacy of slavery and continuing in-

equality in educational opportunities, the African American popula-

tion was disproportionately illiterate. 8 To compound the

disproportionate impact of literacy tests, white illiterates were often

permitted to vote under “grandfather clauses” extending the franchise

to those whose grandparents (in the time of slavery) had voted.

The blatant race discrimination of the literacy-test-plus-

grandfather-clause was invalidated by the Supreme Court as early as

1915. 9 Nevertheless, state officials were creative, so when one stra-

tagem failed, a new one sprang up, and the new ploy was used until

it, too, was struck down. 10

But, by then, yet a new disenfranchising

technique had been developed.

These tactics were very effective at disenfranchising African

Americans in the South, and accordingly, when, a century after the

conclusion of the Civil War, Congress finally addressed them, it

needed equally effective countermeasures. The Voting Rights Act

(“VRA”) of 1965 created one such mechanism. Devices that have

the purpose or effect of suppressing minority votes violate the sub-

stance of the VRA. 11

In addition, under section 5 of the VRA, if a

state or one of its subdivisions in a “covered jurisdiction” attempts to

change its voting rules in any way, it must first submit the proposed

change either to a three-judge court in the District of Columbia or to

the Attorney General for what has become known as preclearance. 12

The Attorney General or special court determines whether the

change would have the effect of disproportionately disenfranchising

or diluting the voting strength of the minority population. 13

The pre-

clearance requirement is limited to certain statutorily specified cov-

ered jurisdictions, mostly in the South. 14

Congress originally deter-

7 Id. at 2521 (Thomas, J., concurring in the judgment in part and dissenting in part).

8 Id.

9 Guinn v. United States, 238 U.S. 347, 367 (1915).

10 NAMUNDO, 129 S. Ct. at 2520.

11 42 U.S.C.A. § 1973 (West 2009).

12 Id. § 1973(c).

13 Jocelyn Friedrichs Benson, Democracy and the Secretary: The Crucial Role of State

Election Administrators in Promoting Accuracy and Access to Democracy, 27 ST. LOUIS U.

PUB. L. REV. 343, 350 (2008). 14

Michael J. Pitts, Section 5 of the Voting Rights Act: A Once and Future Remedy?, 81

2010] VOTING RIGHTS ACT 507

mined which areas were covered by identifying those places that had

a history of disenfranchisement.

Shortly after its adoption, the VRA was challenged and sus-

tained. In South Carolina v. Katzenbach, 15

the Court found that the

VRA was a valid exercise of Congress‟ power to enforce the substan-

tive provisions of the Fifteenth Amendment. 16

Since then, the VRA

has been periodically reauthorized, most recently by a near-

unanimous Congress in 2006. 17

II. NORTHWEST AUSTIN MUNICIPAL UTILITY NO. 1 V. HOLDER

The NAMUNDO case presented two questions: (1) whether a

municipal district in Austin, Texas was eligible to “bail out” of the

provisions of the VRA; and if not, then (2) whether the VRA as ap-

plied in NAMUNDO was unconstitutional as beyond the power of

Congress to enforce the Fifteenth Amendment. 18

The Court only ad-

dressed the statutory issue, although its statutory interpretation was

clearly influenced by constitutional considerations.

Under the VRA, a political subdivision of a covered state is a

covered jurisdiction. 19

However, the VRA permits a subdivision to

“bail out”—that is, to avoid the requirement—of pre-clearance if it

can show that notwithstanding the factors that led Congress to classi-

fy the larger jurisdiction as covered, the particular subdivision is, so

to speak, “clean.” 20

Although the City of Austin is clearly a subdivi-

sion of the state of Texas, it was not obvious that the municipal dis-

trict at issue in NAMUNDO counted as a subdivision under the

VRA‟s language, because it is not a county and does not register its

own voters, but instead relies on another political entity for voting

registration. 21

Thus, the quite technical question of statutory interpre-

tation was whether the VRA could be construed to make the munici-

DENV. U. L. REV. 225, 231 (2003). 15

383 U.S. 301 (1966). 16

Id. at 308. 17

NAMUNDO, 129 S. Ct. at 2510. 18

Id. at 2517 (Thomas, J., concurring). 19

Id. at 2511 (majority opinion). 20

Id. at 2509 (“Congress recognized that the coverage formula it had adopted „might

bring within its sweep governmental units not guilty of any unlawful discriminatory voting

practices‟ . . . . It therefore „afforded such jurisdictions immediately available protection in

the form of . . . [a] „bailout‟ suit.‟ ”). 21

Id. at 2514.

508 TOURO LAW REVIEW [Vol. 26

pal district eligible for bailout.

The Court, in an opinion by Chief Justice Roberts that gar-

nered eight votes, said yes. 22

Even though the statutory language is

most straightforwardly read to indicate that the district should not be

eligible, the Court appeared to rely on a principle of constitutional

avoidance to find nevertheless that the district was eligible for bai-

lout. Hence, there was no need to reach the more difficult constitu-

tional question of whether section 5 of the VRA is still valid. 23

In a lone opinion concurring in the judgment in part and dis-

senting in part, Justice Thomas disagreed on the statutory point, but

not on the point that the Austin district should be eligible for bai-

lout. 24

He contended that even assuming that his colleagues reached

the right conclusion—that the district was eligible for bailout—the

majority should not have avoided the constitutional question because,

in his view, the decision did not give the plaintiff district everything

it requested. 25

Only Justice Thomas directly reached the constitutional ques-

tion, 26

but the majority opinion of Chief Justice Roberts included

pointed hints about the Court‟s view of that question. 27

Had the ma-

jority reached the constitutional question, there is a good chance it

would have found section 5 of the VRA unconstitutional. Justice

Thomas directly stated that he would find it unconstitutional without

delay. 28

III. THE DOG THAT DIDN’T BARK: WHERE WERE THE

LIBERALS?

Interestingly, none of the more liberal Justices wrote separate-

22 NAMUNDO, 129 S. Ct. at 2516-17.

23 Id.

24 Id. at 2517 (“Given its resolution of the statutory question, the Court has thus correctly

remanded the case for resolution of appellant's factual entitlement to bailout.”). 25

Id. at 2518 (“Absent a determination that appellant is not just eligible for bailout, but is

entitled to it, this case will not have been entirely disposed of on a non-constitutional ground

. . . . Invocation of the doctrine of constitutional avoidance is therefore inappropriate in this

case.”). 26

Id. at 2519 (Thomas, J., concurring). 27

NAMUNDO, 129 S. Ct. at 2510-12 (majority opinion). 28

Id. at 2517, 2519 (Thomas, J., concurring) (“[T]he constitutional issue presented and

hold that [section] 5 exceeds Congress' power to enforce the Fifteenth Amendment.”).

2010] VOTING RIGHTS ACT 509

ly in NAMUNDO to take issue with the Chief Justice‟s hints that the

VRA could be held invalid in a future case. In this respect,

NAMUNDO calls to mind Grutter v. Bollinger. 29

There, after uphold-

ing the University of Michigan Law School‟s program of race-based

affirmative action in admissions, Justice O‟Connor suggested that her

ruling could be expected to expire after twenty-five years. 30

She was

joined by the Court‟s four most liberal Justices, none of whom regis-

tered any disagreement with that prediction. Thus, it appears that

even for relatively liberal Supreme Court Justices, government inter-

ventions to promote racial equality—whether in the context of voting,

as in NAMUNDO, or higher education, as in Grutter—have a limited

shelf life.

Why has the Court‟s liberal wing accepted these limits? I

would offer three potentially overlapping hypotheses. First, it is

possible that the Court‟s liberals in Grutter and NAMUNDO joined

opinions with which they did not fully agree in an effort to moderate

the overall impact. In NAMUNDO in particular, the liberals may

have feared that the conservatives would cast five votes actually to

invalidate section 5 of the VRA. By giving Chief Justice Roberts a

near-unanimous opinion, they may have gotten an opinion that, at

least formally, rested only on grounds of statutory interpretation.

Second, it may simply be a mistake to refer to “liberals” on

the current Supreme Court. Justice Stevens, who is arguably the

most liberal member of the Court, was a staunch centrist on the

Burger Court—and Justice Stevens is widely expected to retire at the

conclusion of the October 2009 Term. By the standards of the War-

ren and Burger Courts, the Roberts Court has a center-left, a center, a

right, and a far right, but no left.

Third, even if one thinks that there are real liberals on the Ro-

berts Court, on matters of race, the political center of the Court and of

the country have moved decidedly away from the sort of identity pol-

itics that the VRA could be thought to reflect. Here we may draw a

useful comparison with the confirmation hearings of Justice Soto-

mayor. Democratic Senators who strongly supported confirmation

took pains to portray her as a moderate or even a tough-on-crime

conservative. None made any serious effort to defend her much-

29 539 U.S. 306 (2003).

30 Id. at 325.

510 TOURO LAW REVIEW [Vol. 26

discussed “wise Latina” remark 31

or the opinion she authored in Ricci

v. DeStefano. 32

IV. THE STANDARD OF REVIEW

Among the constitutional issues the Court did not reach in

NAMUNDO was a long-simmering question: what is the standard for

judging Acts of Congress purporting to enforce the Thirteenth and

Fifteenth Amendments? Beginning in 1997, in City of Boerne v.

Flores, a series of Supreme Court cases have held that the power of

Congress to enforce section 5 of the Fourteenth Amendment only ex-

tends to laws that are “congruent and proportional” to an underlying

violation of section 1 of the Fourteenth Amendment, as the Court

would understand it. 33

As a result, Congress cannot, in the guise of

adopting remedial and preventative measures under the Fourteenth

Amendment, stray too far from what the Court would say are viola-

tions of section 1 of that Amendment.

Although the Court has not attempted to specify with mathe-

matical precision just how closely related a remedial or preventative

measure must be in order to satisfy the congruence-and-

proportionality test, the pattern of results makes clear that the test is

considerably more demanding than the test applied in earlier cases

construing the enforcement provisions of the Thirteenth and Fifteenth

Amendments. In those cases, which include South Carolina v. Kat-

zenbach, upholding the VRA in the first instance, the Court applied

the relaxed judicial scrutiny associated with Chief Justice John Mar-

shall‟s opinion in McCulloch v. Maryland. 34

As long as Congress

could have rationally believed that there was a problem to be ad-

31 See Mireya Navarro, Claiming A Loaded Phrase, N.Y. TIMES, Aug. 9, 2009, at ST1.

The phrase was the sound bite from a longer quote—„I would hope that a

wise Latina woman with the richness of her experiences would more of-

ten than not reach a better conclusion than a white male who hasn't lived that life‟—that drew ridicule from opponents of her nomination.

Id. 32

530 F.3d 87 (2d Cir. 2008). 33

Bd. of Trs. of the Univ. of Ala. v. Garrett, 531 U.S. 356, 374 (2001); Kimel v. Fla. Bd.

of Regents, 528 U.S. 62, 82-83 (2000); Fla. Prepaid Postsecondary Educ. Expense Bd. v.

Coll. Savs. Bank, 527 U.S. 627, 639 (1999); City of Boerne v. Flores, 521 U.S. 507, 520

(1997). 34

17 U.S. (316 Wheat.); see, e.g., Jones v. Alfred H. Mayer Co., 392 U.S. 409, 439-40

(1968); Katzenbach, 383 U.S. at 324.

2010] VOTING RIGHTS ACT 511

dressed, the Court afforded very wide latitude. 35

Had the Court reached the constitutionality of section 5 of the

VRA in NAMUNDO, it would have had to resolve whether Acts of

Congress purporting to enforce the Thirteenth and Fifteenth Amend-

ments continue to be judged under the forgiving test of McCulloch or

whether, instead, the more demanding test of the recent Fourteenth

Amendment cases applies. In his NAMUNDO opinion, Chief Justice

Roberts sidestepped the standard-of-review issue. 36

Yet oddly, he as-

serted that section 5 of the VRA presents serious constitutional ques-

tions under either standard. 37

That assertion is odd because the Thir-

teenth and Fifteenth Amendment test focuses only on the rationality

of Congressional action, and just about anything passes the rational

basis test. 38

Surely that includes section 5 of the VRA. Congress could

have rationally concluded that there remains a risk of racial discrimi-

nation in voting, and under the old test under the Thirteenth and Fif-

teenth Amendments, that should have been enough. One is thus left

with the suspicion that a majority of the Court thinks that the congru-

ence and proportionality test would, if the issue were squarely faced,

be deemed applicable to the Thirteenth and Fifteenth Amendments as

well as the Fourteenth. Elsewhere I have suggested a basis (besides

35 See Alfred H. Mayer Co., 392 U.S. at 440-41 (“Surely Congress has the power under

the Thirteenth Amendment rationally to determine what are the badges and the incidents of

slavery, and the authority to translate that determination into effective legislation. Nor can

we say that the determination Congress has made is an irrational one.”). 36

NAMUNDO, 129 S. Ct. at 2512-13.

The parties do not agree on the standard to apply in deciding

whether, in light of the foregoing concerns, Congress exceeded

its Fifteenth Amendment enforcement power in extending the

preclearance requirements. The district argues that „[t]here must

be a congruence and proportionality between the injury to be pre-

vented or remedied and the means adopted to that end‟ . . . ; the

Federal Government asserts that it is enough that the legislation

be a „rational means to effectuate the constitutional prohibition‟

. . . . That question has been extensively briefed in this case, but

we need not resolve it.

Id. 37

Id. at 2513. 38

Cf. Gerald Gunther, The Supreme Court, 1971 Term, Foreward: In Search of Evolving

Doctrine on a Changing Court: A Model for a Newer Equal Protection, 86 HARV. L. REV. 1,

8 (1972) (“[T]he deferential „old‟ equal protection reigned, with minimal scrutiny in theory

and virtually none in fact.”).

512 TOURO LAW REVIEW [Vol. 26

stare decisis) for maintaining the looser standard in Thirteenth and

Fifteenth Amendment cases, 39

but whether that or some other argu-

ment prevails will await a later day.

Meanwhile, if the congruence and proportionality test does

apply to section 5 of the VRA, the law faces serious constitutional

obstacles, as illustrated in the separate opinion of Justice Thomas.

Section 5 of the VRA Rights Act is three layers removed from the

underlying constitutional violation—if there is one. First, whereas

constitutional equality norms are only violated by express or purpose-

ful discrimination, 40

the substantive provisions of the VRA forbid

practices with a merely discriminatory effect. 41

According to Justice

Scalia‟s concurrence in the Ricci case, not only do constitutional

equality norms permit disparate impact without discriminatory pur-

pose, the prohibition of disparate impact may itself be unconstitution-

al. 42

The second level of prophylaxis in section 5 of the VRA is the

scope of the pre-clearance obligation. All changes must be pre-

cleared—even if there is no prior indication that a change will have a

discriminatory effect. 43

Finally, there is a third level of prophylaxis: Even sub-units of

covered jurisdictions are subject to the pre-clearance requirement,

even when the individual sub-units have not been shown to have any

record of prior discrimination with respect to voting. 44

With section

5 of the VRA thus triply removed from underlying violations of the

39 Michael C. Dorf & Barry Friedman, Shared Constitutional Interpretation, 2000 SUP.

CT. REV. 61, 91 n.126 (2001) (noting that an expansive interpretation of Congressional pow-

er to enforce the Thirteenth and Fifteenth Amendments would not pose the same risk of

Congressional omnipotence that an expansive interpretation of Congressional power to en-

force the Fourteenth Amendment poses, in light of the more specific subject matter of the

Thirteenth and Fifteenth Amendments). 40

See, e.g., Batson v. Kentucky, 476 U.S. 79, 90 (1986) (stating that the most important

question was “whether the defendant had met his burden of proving purposeful discrimina-

tion on the part of the State”); Washington v. Davis, 426 U.S. 229, 239 (1976) (holding that

a facially neutral law or policy will not be deemed discriminatory unless it both has a racially

disproportionate impact and results from discriminatory motivation on the part of the state). 41

NAMUNDO, 129 S. Ct. at 2523; David O. Barrett, The Remedial Use of Race-Based

Redistricting After Shaw v. Reno, 70 IND. L.J. 255, 265-66 (1994). 42

Ricci, 129 S. Ct. at 2682 (Scalia, J., concurring). 43

Mark A. Posner, The Real Story Behind the Justice Department’s Implementation of

Section 5 of the VRA: Vigorous Enforcement, as Intended By Congress, 1 DUKE J. CONST. L.

& PUB. POL‟Y 79, 79 (2006). 44

Id. at 86, 88.

2010] VOTING RIGHTS ACT 513

Fifteenth Amendment, it would be relatively easy for the Court to

find that it fails the congruence and proportionality test, should that

test be deemed applicable.

IV. CONCLUSION

Finally, a deep irony if not cynicism infects the majority opi-

nion in NAMUNDO. Chief Justice Roberts criticized the selective

application of the pre-clearance requirement of section 5 of the VRA.

He deemed the singling out of particular parts of the country an af-

front to the equal sovereignty of the states. 45

Yet, in recent cases in-

terpreting Congress‟ power under the Fourteenth Amendment, the

Court cited the failure of Congress to write geographical restrictions

into its statutes as a ground for finding those Acts unconstitutional. 46

As far as civil rights laws are concerned, the rule appears to be

“heads the Court wins, tails Congress loses.”

45 See NAMUNDO, 129 S. Ct. at 2511-12.

46 See Bd. of Tr. of the Univ. of Ala. v. Garrett, 531 U.S. 356, 368, 374 (2001); United

States v. Morrison, 529 U.S. 598, 626-27 (2000); Kimel v. Fla. Bd. of Regents, 528 U.S. 62,

91 (2000).

Copyright of Touro Law Review is the property of Touro Law Center and its content may not be copied or

emailed to multiple sites or posted to a listserv without the copyright holder's express written permission.

However, users may print, download, or email articles for individual use.