Appeals court upholds key provision of Voting Rights Act. Supreme Court could loom
A divided federal appeals court panel on Friday upheld Congress鈥檚 2006 extension of a key provision of the Voting Rights Act (VRA) of 1965, setting the stage for an expected showdown over the civil rights law at the US Supreme Court.
Section 5 of the VRA requires states, counties, and other jurisdictions with a history of discrimination in elections to obtain pre-approval from Washington before enacting any changes to election procedures that might undercut minority voting.
The US Court of Appeals for the District of Columbia voted 2 to 1 to throw out a lawsuit filed by Shelby County, Alabama that challenged the reauthorization of Section 5. Lawyers for the county argued that Congress was not justified in automatically reimposing the Section 5 requirements on the same states and jurisdictions identified as egregious discriminators nearly 50 years ago. They say the state is being punished for past problems that no longer exist.
At issue is whether Congress鈥檚 decision to extend Section 5 of the VRA for 25 years meets a Supreme Court requirement that the remedy be 鈥渃ongruent and proportional鈥� to the level of discrimination that currently exists in nine states and parts of seven other states covered by the provision.聽聽
A federal judge rejected the county鈥檚 argument and upheld the statute. On Friday, the appeals court affirmed that result, eliciting praise from civil rights organizations.
鈥淥ur job is to ensure that Congress鈥檚 judgment is reasonable and rests on substantial probative evidence,鈥� Judge David Tatel wrote in the 63-page majority opinion. 鈥淎fter thoroughly scrutinizing the record and given that overt racial discrimination persists in covered jurisdictions 鈥� we are satisfied that Congress鈥檚 judgment deserves judicial deference.鈥� 聽
Tatel added: 鈥淒oes the severe remedy of [Section 5] preclearance remain 鈥榗ongruent and proportional鈥�? The legislative record is by no means unambiguous. But Congress drew reasonable conclusions from the extensive evidence it gathered.鈥�
In a dissent, Judge Stephen Williams said the criteria Congress used to decide which states are covered by Section 5 were outdated and did not satisfy a Supreme Court requirement that the measure be 鈥渃ongruent and proportional鈥� to Congress鈥檚 remedial goal of fighting discrimination.
Judge Williams said criteria used under the law are based on statistics from 1972. 鈥淚f the formula were to be updated to use more recent election data, it would cover only Hawaii,鈥� he said.
Judge Tatel said the question isn鈥檛 whether the law relies on old data, but whether the criteria continue to identify jurisdictions with the worst problems. 鈥淚f it does, then even though the formula rests on decades-old factors, the statute is rational,鈥� Tatel wrote.
Williams cited the ongoing dispute over voter ID laws in South Carolina and Texas as an example of how the Voting Rights Act subjects covered states to heightened and questionable legal requirements.
In 2011, both states adopted voter ID laws patterned on an Indiana voter ID statute that was upheld by the Supreme Court in 2008.
Normally, that existing precedent would be enough to insulate the statutes from legal challenge. But because both Texas and South Carolina are among 鈥渃overed鈥� jurisdictions with past histories of discrimination under the VRA, both states had to submit the laws to the Justice Department for pre-approval. Despite the Supreme Court precedent in Indiana, the Justice Department blocked both laws.
鈥淲hy should voter ID laws from South Carolina and Texas be judged by different criteria from those governing Indiana,鈥� Williams asked.
鈥淒espite a congressional record of over 15,000 pages and 22 hearings, there is little to suggest that [the VRA鈥檚] coverage formula continues to capture jurisdictions with especially high levels of voter discrimination,鈥� Williams said.
The case is expected to be appealed to the Supreme Court. In a 2009 decision, Chief Justice John Roberts raised significant questions about the constitutionality of Section 5 of the VRA. In particular, he questioned the law鈥檚 reliance on old criteria that may no longer be relevant.
Some legal analysts read the comments as an invitation for states and other covered jurisdictions to file their own lawsuits seeking to overturn the provision.
鈥淭hings have changed in the South,鈥� Chief Justice Roberts wrote. 鈥淰oter turnout and registration rates now approach parity. Blatantly discriminatory evasions of federal decrees are rare. And minority candidates hold office at unprecedented levels.鈥�
The chief justice added: 鈥淚t may be that these improvements are insufficient and that conditions continue to warrant preclearance under the act. But the act imposes current burdens and must be justified by current needs.鈥�
Election law expert, Richard Hasen, said on his Election Law Blog that he expects Shelby County to file an appeal and for the Supreme Court to hear the case next term.
Mr. Hasen said pending appeals over the Texas and South Carolina voter ID laws might also reach the high court, testing the same issue.
鈥淎s to what the court will do,鈥� he wrote, 鈥渕y money is on the court holding 鈥� one way or the other 鈥� that Section 5 can no longer be enforced against the covered states.鈥�
Civil rights advocates praised the appeals court decision.
鈥淭oday鈥檚 ruling is the latest in an unbroken line of cases upholding the constitutionality of the Voting Rights Act鈥檚 most effective protection,鈥� Debo Adegbile of the NAACP Legal Defense and Educational Fund said in a statement.
鈥淪ome have questioned whether the protection is still needed. The recent efforts to suppress minority voters make it crystal clear that we will need this core voter protection,鈥� he said.
鈥淭his is an important victory in the defense of Section 5,鈥� said Barbara Arnwine of the Lawyers Committee for Civil Rights Under Law. 鈥淭he court properly found that this key provision of the Voting Rights Act is still needed to ensure that minorities can fully exercise their constitutional right to vote free from discrimination.鈥澛�
