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Monday, February 25, 2013

The Voting Rights Act: On Strategic Compromise and As-Applied Challenges

It's time to wade into the Voting Rights Act fun.  On Wednedsay the Court is hearing oral argument in Shelby County v. Holder regarding the constitutionality of Section 5 of the Voting Rights Act, and the smart money is that the Court will invalidate Section 5.  But there's a narrower option.  It's the tale of strategic compromise and as-applied challenges.

Section 5, as many readers know, requires "covered" jurisdictions to seek "preclearance," or preapproval, from the federal government for any changes it makes to its voting system.  It is a law that stems from the civil rights movement and is widely lauded for its impact on achieving greater equality for racial minorities in voting.

Just a few years ago, however, the Supreme Court put Section 5 on life support, using a tortured statutory analysis to avoid the constitutional question in a 2009 case called NAMUDNO v. Holder.  In dicta, the Court strongly suggested that Section 5 was unconstitutional.  That constitutional question is now squarely before the Court in Shelby County.

Are we all up to speed?  Good.  Now I want to dive deeper and suggest a path for the Court that, if it is inclined to close the deal on striking down this provision of the Voting Rights Act, would not be as drastic as invalidating Section 5 in its entirety.  To be sure, there are very strong reasons to uphold Section 5, and the Court must consider those arguments carefully.  But the warning signs from NAMUDNO were ominous.  A modified approach is available, and it stems from recent trends in Supreme Court election law jurisprudence. 

The idea is actually quite simple:  if a majority of the Court is not willing to uphold the Act as-is, then it should exhibit the same kind of strategic compromise as it did in the 2009 case and allow only as-applied challenges.

In the 2009 Section 5 case, NAMUDNO, the Court ruled 8-1 that it could avoid the constitutional issue by stretching the statutory language to allow the plaintiff, a water district in Texas, to "bail out" of the Act's coverage.  As my essay on this case reveals, the voting trends of the Justices hearing this case should have portended a 5-4 conservative decision striking down the Act, with Justice Kennedy siding with the conservatives.  Indeed, even though Justice Kennedy is widely considered to be a "swing" vote, my analysis of Voting Rights Act decisions up to that point showed that his voting pattern has been quite similar to that of Justice Scalia in these cases, ruling "expansively" toward the Act only about a quarter of the time.  (By contrast, the more liberal side of the Court ruled "expansively" toward the Voting Rights Act about three-quarters of the time.)  Why, then, did 8 Justices (all but Justice Thomas) refuse to pull the trigger in NAMUDNO and invalidate Section 5?  It is because of what I termed "strategic compromise."

By strategic compromise, I suggested that "currently the Justices are taking a holistic view of election law and sacrificing their short-term goals in a particular case for the greater good of long-term ends."  The conservative Justices were satisfied by settling for a minor victory to achieve incremental change without having to suffer the hit on legitimacy they surely would encounter with a headline that "Supreme Court Strikes Down Major Civil Rights Legislation."  The liberal Justices were able to ward off a far-reaching constitutional ruling by embracing a statutory narrowing of Section 5 with which they otherwise may not have agreed.  Both sides compromised their true positions to achieve longer-term goals:  for the conservatives, whittle away at the Voting Rights Act; for the liberals, preserve as much of it as possible.

The same considerations face the Court in Shelby County.  But there is no statutory alternative in this case.  The compromise, however, can come from another trend evident in recent election law cases:  the move toward allowing only as-applied challenges.  In a series of cases, the Court has rejected facial challenges to election laws, saying that plaintiffs could succeed only in an as-applied challenge.  In the 2008 voter ID litigation, for example, the controlling opinion declared that the law was valid in the abstract but might be unconstitutional as applied to a particular voter who could not obtain an ID and therefore could not vote.  That case, in fact, also exhibited strategic compromise:  Justice Stevens, writing the controlling opinion, may have aligned himself with the Court's conservative Justices so that he could write a narrower decision that kept the possibility of a future successful challenge alive.  Otherwise, the conservative Justices might have upheld voter ID laws in all circumstances.

The same option is available in Shelby County.  The plaintiffs are bringing a facial challenge to Section 5 of the Voting Rights Act.  But the Court need not sanction that broad challenge.  If it is inclined to cut back on the Act's coverage, it could rule that facial challenges are also disfavored in the Voting Rights Act context.  A covered jurisdiction could seek a ruling that, as-applied to its particular voting rules, Section 5 goes too far in regulating its activities.  A jurisdiction that is not eligible for statutory bail out still might be able to demonstrate that Section 5's coverage is unnecessary for it because it no longer exhibits the same voting discrimination that made it fall within the coverage formula.  Congress's reasons for sweeping that jurisdiction under the coverage formula might be outdated.  But the whole of the Act should survive.  

This is different from another potential "narrower" ruling, that the coverage formula itself (as opposed to the Act in its entirety) is unconstitutional, as that would require Congress to re-write the Act--effectively nullifying it.  Instead, the Court could compromise by saying that Section 5 is a valid exercise of Congressional authority, but that a specific jurisdiction could make an argument that it should no longer be subject to the preclearance requirement.  

This approach couples strategic compromise with the push toward as-applied challenges in election law.  The conservatives might embrace this approach just as it embraced the statutory interpretation in NAMUDNO to maintain the Court's legitimacy and ward off striking down a bastion of the civil rights movement.  The liberals might embrace this interpretation to preserve as much of Section 5 as possible.  And Section 5 would live on to do its vital work in deterring the worst voting rights abuses.

It would be preferable for the Court to uphold Section 5 in its entirety.  Congress considered a wealth of information regarding disparities in voting in covered jurisdictions that supports Section 5's vitality.  But if the Court is going to follow through with its threat in NAMUDNO and rule this portion of the Voting Rights Act unconstitutional, it would be well served to remember what it has done recently in similar cases:  embrace strategic compromise to rule that only as-applied challenges are permissible. 

Posted by Josh Douglas on February 25, 2013 at 04:35 PM | Permalink


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Hi Joey,

Thanks for your comment. I agree that my solution covers only a narrow set of facts: a jurisdiction that is ineligible for statutory bailout (because, for example, it was denied preclearance on something say 5 years ago), yet for some reason it should be allowed out of Section 5 anyway. One thought is that an as-applied challenge could work regarding Congress's reauthorization of Section 5 without changing the coverage formula: even though the jurisdiction was denied preclearance, let's say in 2004, there is evidence of some significant changed circumstance that suggests Congress should not have included that jurisdiction within Section 5 when it reauthorized the Act in 2006. Or there could be an as-applied constitutional challenge to the statute's bail out rules. So yes, this idea preserves Section 5 in most instances, but still leaves the door open for a jurisdiction who cannot bail out under the statute to make an argument that the law still should not apply to it. Another possibility, suggested to me by Mike Pitts, is that there could be an as-applied challenge to requiring preclearance for changes in state and local elections, but not federal elections.

The beauty of the as-applied approach is that it is a way out for both sides: the conservatives are able to cut back on the Act somewhat without issuing a sweeping ruling, and the liberals can avoid a complete invalidation. So although practically speaking it might not change Section's 5 operation in most instances, it might be the best compromise to maintain legitimacy for both sides. And it's consistent with what the Court has done in this area.

Anyways, thanks for your thoughts on this.


Posted by: Josh Douglas | Feb 26, 2013 11:17:33 AM

Hi Josh. I think you raise an interesting possibility, and certainly one consistent with a significant election law trend. I'm slightly confused about how different your "as-applied challenge" would be from a plain-vanilla bailout -- essentially, it seems to me, you're talking about a jurisdiction that can't qualify for bailout according to the statute nonetheless seeking a kind of constitutional workaround, i.e. arguing that narrow tailoring requires a broader set of jurisdictions to be able to bail out.

Fine. But this seems to me to amount to basically a complete victory for Section 5. It's not that hard for many if not most jurisdictions to bail out as it is (although Shelby County couldn't do it). Presumably the constitutional standard would still require that _some_ jurisdictions stay covered, and honestly, I'm not sure how much space there is to weaken the bailout requirements before things start looking a little ridiculous (e.g. "no more than 3 incidents of intentional discrimination by your jurisdiction in the past decade"?). So how much your "as-applied" approach would really loosen the already-relatively-loose bailout standard, it is hard for me to tell. It seems to me that plenty of jurisdictions (although again, not Shelby County) could bail out right now under the existing statutory standard, but they don't, possibly because they don't mind Section 5 so much. Section 5 might even save them money in the long run, by keeping them out of Section 2 litigation. But anyway, very interesting idea.

Posted by: Joey Fishkin | Feb 26, 2013 12:43:31 AM

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