By
Sylvia R. Lazos, Justice Myron Leavitt Professor of Law
This morning the United States Supreme Court struck down, in a 5-4 conservative vs. liberal vote lineup, Section 4 of the Voting Rights Act of 1965, the civil rights statue that President Johnson considered his single most important legislative achievement. By knocking down Section 4 coverage formula, section 5 pre-clearance mechanism has been vitiated, unless Congress acts to “correct” the deficiencies of Section 4 newly found by the Court. Section 4 identifies certain “covered jurisdictions,” namely 15 states that make up the “old South,” as well as parts of Arizona, Alaska, New Mexico and California, as being places that must shoulder an extra burden of showing that changes in voting practices that impact minorities are not motivated by discriminatory motive. Section 5 of the Voting Rights Act requires these “covered jurisdictions” to get pre-clearance from the Department of Justice before enacting any voting law changes, which have run the gamut from changing the hours that polling stations remain open to racially gerrymandered redistricting. This procedural mechanism has been a key provision used by voting rights lawyers in fighting changes that arguably would depress minority voter influence.
The main points of disagreement between the conservative majority and the liberal minority is whether Congress adequately did its homework when it voted to reauthorize the Voting Rights Act in 2006, and what is the appropriate level of review when the judiciary checks on Congress’s remedial work under its enforcement powers of the Fifteenth Amendment.
As the opinion points out, the Voting Rights Act has been reauthorized four times in the Nation’s history. Most recently, in 2006 Voting Rights reauthorization, Congress was aware that a conservative Court might apply more rigorous review to Congressional remedies enacted under Voting Rights Act, such as Sections 4 and 5. Accordingly, Congress worked hard to build what it thought would be a solid record, nearly a year full of hearings --52 in all -- 90 witnesses, and a 15,000 page record. During these hearings, civil rights groups conceded that the outrages of the past, for example, literacy tests administered to only African- and Mexican- American voters, and blatant racial gerrymandering by white controlled legislatures, were no longer common place and were a thing of the past. However, evidence presented before Congress made the case that the covered jurisdictions continued to be racially polarized, and that majorities were using new, more subtle, stratagems to suppress minority votes. Opponents argued, as the Court emphasized today, that Congress should loosen up its grip on covered jurisdiction because these blatant discriminatory practices had been overcome. However, Congress sided with civil rights groups, strengthened provisions of Sections 5, and reauthorized the Voting Rights Act, with a supermajority vote of 390-33 in the House and 98-0 in the Senate. President George W. Bush signed the Voting Rights Act reauthorization into law, even though preclearance provisions of Sections 4 and 5 of the Voting Rights Act apply mostly to red states.
Now seven years later, the Supreme Court’s conservatives are undoing Congress’s political compromise. The constitutional violation, Chief Justice Roberts explains, lies in the legal principle of “equal state sovereignty.” Citing to the 1789 Framers’ intent, “our Nation was and is a union of States, equal in power, dignity, and authority.” The Voting Rights Act, according to Roberts, is “extraordinary legislation” justified only by the “blight of racial discrimination in voting” that “infected” the country in 1960s. Fifty years later, although discrimination has become more subtle, the “extraordinary” Voting Rights Act’s section 4 and 5 remedies are no longer constitutionally justified. Justice Roberts writes that Congressional use of its remedial Fifteenth Amendment powers must identify “current burdens and current needs,” and remedies “must be sufficiently related to the problem that it targets.”
To the lay reader of this opinion, today’s Court opinion may be justified in that the Court is rebuking Congress for being anchored in the Nation’s discriminatory racial past. However, to students of constitutional law, this decision should be disturbing.
First, whenever the Court rebukes Congress for not adequately doing its homework we are in separation of powers territory, or stated otherwise, courts are overstepping their proper judicial role. Courts traditionally have deferred to Congress, even, as Justice Thomas states, when it chooses to pass “stupid laws.” What exactly justifies the Court’s rebuke of a 15,000 page record that led Republicans and Democrats to extend the provisions of the Voting Rights Act?
Second, the Court in this opinion leaves unanswered what level of review it is applying to the use of Congress’s remedial power under the Fifteenth Amendment. Many constitutional scholars have argued that the appropriate standard was
Boerne v Flores “congruence and proportionality” standard that the Court has applied since the Rehnquist Court to Fourteenth Amendment remedies. The Fourteenth and Fifteenth Amendments are historically viewed as a package, since they were passed as part of Reconstruction. Today’s decision does not even mention the
Boerne case. Instead Roberts’ phrasing that remedies “must be sufficiently related to the problem that it targets” implies that the Court is using intermediate level of review, but we don’t know why.
Third, it is historically inaccurate for Justice Roberts’ opinion to repeatedly make reference to 1789 Framers rather than the 1867 Reconstruction. According to Chief Justice Roberts, Congress has violated “fundamental principle of equal sovereignty” when it sets up a federal “review and veto state enactments before they go into effect.” To back up this statement, Roberts cites the Tenth Amendment, which has been called a mere syllogism by prior Courts. Roberts does not cite to the history of the enactment of the Fifteenth Amendment. The Reconstruction Congress, as the Ginsburg dissent points out, found a multitude of discriminatory and violent acts, such as lynchings and targeted terrorism, whenever freed black men exercised their right to vote. For this reason, the Framers of the Fifteenth Amendment found it necessary to re-set the federalism balance of power, and authorize the federal government to do exactly what Roberts professes the Fifteenth Amendment cannot do, to use federal power to check the ability of the states to discriminate against racial minorities when they exercise their right to vote. The Fifteenth Amendment was designed to allow Congress to use federal powers in order to hold in check state discrimination. This power was not meant to be applied uniformly to every state; rather this extraordinary use of federal power was justified only where the facts indicated that racial discrimination and polarization so burdened minorities’ right to vote that it was necessary for Congress to use this remedy and step in.
Conservatives have used state sovereignty doctrine to check federal power in commerce clause cases, such as
Lopez v. US and
Morrison v. US. To use this ample and malleable sovereignty doctrine to strike down the Voting Rights Act key provisions makes this opinion controversial.
Shelby is something of a time bomb, because the opinion’s legal maneuverings leaves unclear whether the Court will constrain itself in reviewing future exercises of Congressional remedial powers under the Fifteenth Amendment.
Sylvia Lazos is the Justice Myron Leavitt Professor of Law at the William S. Boyd School of Law. 
