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Shelby County and the Illusion of Minimalism

Abstract: Chief Justice Roberts’ majority opinion in Shelby County v Holder, holding unconstitutional a key part of the 1965 Voting Rights Act, purports to be a modest decision written with reluctance and humility. The Court struck the coverage formula in Section 4 of the VRA used to determine which states and local governments must submit any proposed voting changes for federal approval (or “preclearance”) under Section 5. According to the majority, by failing to amend the VRA to update the coverage formula after the Court raised constitutional doubts about preclearance in the 2009 NAMUDNO case, Congress “leaves us today with no choice.” “Striking an Act of Congress ‘is the gravest and most delicate duty that this Court is called on to perform.’” The majority held that the coverage formula renewed by Congress without change in 2006 failed to take into account “current conditions” of discrimination in covered jurisdictions and failed to treat states with the “equal sovereignty” they deserved under the Tenth Amendment. Rather than strike down section 5, as Justice Thomas would have done, the Court “issue[d] no holding on § 5 itself, only on the coverage formula. Congress may draft another formula based on current conditions.” The short opinion for the five most conservative Justices on the Court - only two-thirds the size of Justice Ginsburg’s dissent for the four most liberal Justices - casts itself as adhering to precedent, reaching a result compelled by stare decisis and inevitably flowing from NAMUDNO. The majority ostensibly stands ready for Congress’s next step. Despite the projected judicial modesty, the Shelby County Court was doing much more than calling balls and strikes and applying settled precedent to uncontested facts. Shelby County is an audacious opinion which ignores history, declines to engage the dissent’s powerful argument that the VRA’s bailout provisions solve any constitutional problem, and rejects the Roberts Court’s stated commitment to judicial minimalism in its treatment of facial challenges and severability. It pretends it is not overturning section 5 yet it sets a standard under which any new coverage formula will likely fail a constitutional test. The opinion disregards the pervasive polarization in the current Congress which dooms agreement on a new coverage formula and it seems to reject any replacement coverage formula. But the opinion is minimalist in a difference important sense as well: its brevity seeks to mask major doctrinal and jurisprudential change. By writing a very short opinion and avoiding a discussion of the Fifteenth Amendment’s history and how the Court silently resolved a dispute over the applicable standard of review, the Court tried to hide the major jurisprudential hurdles it jumped to reach a political decision. The opinion, relying on a new and unjustified “equal sovereignty” principle, demeans the strength of Congress’s power to eradicate racial discrimination in voting, sidestepping a key standard of review question raised but not resolved in NAMUDNO regarding how much deference the Court owes Congress acting under its Fifteenth Amendment enforcement powers. The opinion’s brevity is an insult, not an act of modesty. As Justice Ginsburg remarked in dissent, “Hubris is a fit word for today’s demolition of the VRA.” Yet the dissenters offer their own incomplete history of the VRA’s renewal, failing to grapple with the more complex record of the congressional reenactment. To hear the dissenters' story, Congress in 2006 was nearly universally behind the 25-year renewal of section 5 using the old coverage formula, and Congress would have had no idea that the continuing use of the same coverage formula could have doomed its constitutionality. In fact, it was a less happy story. Congress willfully ignored the problems with the coverage formula which legal scholars brought to Congress’s attention, and which were amply covered by a Senate report written by Republican committee staffers who were deeply skeptical of the Act’s continuing constitutionality. While the Shelby County majority minimized the audaciousness of its own holding, the dissenters minimized the difficult constitutional questions before Congress and before the Court. Part I briefly describes the background of the Shelby County case, and in particular the questions left open in NAMUDNO. Part II analyzes the majority opinion, and explains the opinion as an act of false minimalism. Part III analyzes the dissenting opinion, and explains the dissent as one willfully silent about difficult constitutional questions. In the end, the dissenters had the better argument about the Act’s constitutionality, but the dissent would have been stronger had it described and grappled more forthrightly with the struggles over the VRA’s renewal and the dangers of political avoidance. Shelby County is important not just for the loss of preclearance, but the diminution of congressional power over voting rights in the future.
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MonographDOI
24 Aug 2017

45 citations


Cites background from "Shelby County and the Illusion of M..."

  • ...Das Erstellen und Weitergeben von Kopien dieses PDFs ist nicht zulässig. kritisiert (vgl. Pildes 2015a: 318; Hasen 2014: 739-742; Gerken 2006: 711-713)....

    [...]

Journal ArticleDOI
TL;DR: The Roberts Court saw a number of important advances for judicial enforcement of federalism-based limits on congressional power, both in high-profile cases such as NFIB v. Sebelius, and lesser known ones.
Abstract: The Roberts Court saw a number of important advances for judicial enforcement of federalism-based limits on congressional power, both in high-profile cases such as NFIB v. Sebelius, and lesser known ones. Much of this progress fits the conventional model of federalism as a left–right ideological issue on the Court, which divides liberal Democrats from conservative Republicans. But some noteworthy developments depart from this framework, and suggest greater openness to federalism among some on the left.

8 citations

Journal ArticleDOI
08 Apr 2015
TL;DR: On June 26, 2013, the Supreme Court struck down the coverage formula enabling federal pre-clearance of proposed voting changes in jurisdictions with documented histories of racial discrimination, which was interpreted by as discussed by the authors as the most recent symptom of a long-term partisan and institutional struggle over the scope of federal voting rights enforcement.
Abstract: On June 26, 2013, the Supreme Court struck down the coverage formula enabling federal preclearance of proposed voting changes in jurisdictions with documented histories of racial discrimination. This paper interprets this event as the most recent symptom of a long-term partisan and institutional struggle over the scope of federal voting rights enforcement. Lingering liberal Democratic influence in Congress, coupled with conservatives’ fears of violating the norm of racial equality, obstructed Republican diminution of federal voting rights enforcement via legislation. Consequently, Republicans turned to lower-profile administrative and especially judicial venues, which offered conservative elected officials chances to circumscribe voting rights enforcement while simultaneously maintaining a public facade of support for the norm of racial equality. Over time, this dynamic has yielded a situation in which the Court has come to serve as the judicial arm of the Republican Party, at least in the realm of voting rights.

7 citations

Journal ArticleDOI
TL;DR: The Voting Rights Act created a method of oversight called preclearance, which was designed to prevent changes in state and local voting laws that may negatively affect minority groups as mentioned in this paper, which was called pre-clearance.
Abstract: The Voting Rights Act created a method of oversight called “preclearance,” which was designed to prevent changes in state and local voting laws that may negatively affect minority groups. Following...

6 citations


Cites background from "Shelby County and the Illusion of M..."

  • ...The voting changes subject to preclearance include redistricting, relocating a polling place, and requiring photo ID to vote (Hasen, 2014)....

    [...]

Journal ArticleDOI
TL;DR: The preclearance provision of Section 5 of the Voting Rights Act was rendered ineffective by the United States Supreme Court in 2013 in Shelby County, AL v. Holder as mentioned in this paper, which required federal review of changes in the election policies and practices of state and local governments with particularly bad histories of racial discrimination in their electoral processes.
Abstract: The preclearance provision of Section 5 of the Voting Rights Act was rendered ineffective by the United States Supreme Court in 2013 in Shelby County, AL v. Holder. This provision required federal review of changes in the election policies and practices of state and local governments with particularly bad histories of racial discrimination in their electoral processes. This essay identifies the crucial prophylactic role the provision played in preventing the implementation of vote denial and vote dilution practices in southern states. It provides an overview of the various reauthorizations of the provision, with particular attention to the latest in 2006, and a critical review of the Supreme Court's response to it. Special attention is devoted to the social science evidence relied upon by Congress in that reauthorization and by the Court in its response to it.

6 citations

References
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Posted Content
TL;DR: In this paper, the authors argue that when a state legislature passes an election administration law (outside the redistricting context) discriminating against a party's voters or otherwise burdening voters, that fact should not be a defense, and instead, courts should read the Fourteenth Amendment's Equal Protection Clause to require the legislature to produce substantial evidence that it has a good reason for burdening the voters and that its means are closely connected to achieving those ends.
Abstract: North Carolina, Texas, and other states with Republican legislatures have passed a series of laws making it harder for voters to register and to vote. In response, the United States Department of Justice has sued these states, claiming that the laws violate portions of the Voting Rights Act protecting minority voters. When party and race coincide as they did in 1900 and they do today, it is hard to separate racial and partisan intent and effect. Today, white voters in the South are overwhelmingly Republican and, in some of the Southern states, are less likely to be willing to vote for a Black candidate than are white voters in the rest of the country. The Democratic Party supports a left leaning platform that includes more social assistance to the poor and higher taxes. Some Republicans view such plans as aiding racial minorities. Given the overlap of considerations of race and considerations of party, when a Republican legislature like North Carolina’s passes a law making it harder for some voters to vote, is that a law about party politics or a law about race? As I explain, if courts call this a law about party politics and view it through the lens of partisan competition, then the law is more likely to stand, and the fight over it will be waged at the ballot box. If the courts call this a law about race and view it through the lens of the struggle over race and voting rights, then the law is more likely to fall and the fight will be settled primarily in the courts. The race versus party bifurcation is unhelpful, and the solution to these new battles over election rules — what I call "The Voting Wars" — is going to have to come from the federal courts. Courts should apply a more rigorous standard to review arguably discriminatory voting laws. When a legislature passes an election administration law (outside the redistricting context) discriminating against a party’s voters or otherwise burdening voters, that fact should not be a defense. Instead, courts should read the Fourteenth Amendment’s Equal Protection Clause to require the legislature to produce substantial evidence that it has a good reason for burdening voters and that its means are closely connected to achieving those ends. The achievement of partisan ends would not be considered a good reason (as it appears to be in the redistricting context). These rules will both discourage party power grabs and protect voting rights of minority voters. In short, this new rule will inhibit discrimination on the basis of both race and party, and protect all voters from unnecessary burdens on the right to vote.

12 citations