Today, D.C. District Court Judge John Bates dismissed a facial challenge to the constitutionality of Section 5 of the Voting Rights Act.

The 15^th amendment obliges Congress to effectuate its promise that no citizen be denied the right to vote on the basis of race. Section 5 of the 1965 Voting Rights Act is a product of that obligation.  The provision requires covered jurisdictions to seek approval for modifications to their electoral processes. This preclearance may be pursued through the Department of Justice or a three judge panel at Washington D.C.’s Federal District Court.

Claimants in Shelby County v. Holder asserted that Section 5 imposes unconstitutional burdens on covered jurisdictions. Congress, they allege, exceeded its power in reauthorizing the provision in 2006. Further, Shelby contends that Section 5’s scope is too expansive. The County argues that the coverage formula established in Section 4(b)—which is used to determine which jurisdictions must abide Section 5—is unjustified. On this view, progress towards racial voting parity renders the formula’s reliance on data from 1965 anachronistic.

 Judge Bates’ Analysis

Judge Bates applied heightened scrutiny in evaluating these claims, asking whether Sections 5 and 4(b) were “congruent and proportional” responses to discriminatory voting patterns. Ultimately, the George W. Bush appointee concluded they were. Dispatching with the first claim, Judge Bates noted that Congress “preserved all of Section 5’s traditional limiting features when it reauthorized Section 5 in 2006.” Those features include constraining the provision’s geographic scope, specifying a termination date, and specifying a termination mechanism—bailout procedures. Notably, the Attorney General has consented to every request that a jurisdiction be permitted to bailout of preclearance requirements since the bailout procedure was liberalized in 1982. That willingness to grant leave from preclearance suggests Section 5 is more narrowly tailored.  Additionally, Judge Bates referenced two Congressional determinations in support of his finding that Section 5 was a congruent and proportional response to voter discrimination: 1) that preclearance imposes minimal administrative costs on covered jurisdictions; and 2) that Section 2 does not provide adequate means of preventing voter discrimination.

In dispatching with the claim that Section 4(b) relied on anachronistic data, and was therefore rendered unconstitutional, Judge Bates said the following:

The specific election years that have come to be used as “triggers” for coverage under Section 4(b) were never selected because of something special that occurred in those years; instead, they were chosen as mere proxies for identifying those jurisdictions with established histories of discriminating against racial and language minority voters.

Quoting Stanford Law Professor Pam Karlan, Judge Bates continued: “Notwithstanding the passage of time since the coverage formula was last updated, ‘[t]he identity of the jurisdictions with that pervasive history and contemporary voting discrimination has not changed.’” Bates then parsed the record that Congress developed when considering reauthorization in 2006, concluding that sufficient disparity between the voting rights that minorities enjoy in covered and uncovered jurisdictions remains significant.

Going Forward

Judge Bates’ analysis puts Section 5 on firmer ground. That he felt compelled to reach the merits on this facial challenge, however, suggests that Shelby is destined for the Supreme Court. In N.A.M.U.D.N.O. v. Holder, the Supreme Court signaled its concern with Section 5. Writing for the majority, Justice Roberts noted that “[t]he Act’s preclearance requirements and its coverage formula raise serious constitutional questions.” In N.A.M.U.D.N.O. the Court invoked the constitutional avoidance canon to resolve the claim on statutory grounds; but if Judge Bates ruled correctly on standing, no statutory resolution is likely in Shelby because no bailout is sought. Absent bailout, the Court will need to construct a creative rationale to avoid reaching the merits of Shelby’s claim—though that claim could be narrowed to an as applied challenge. Whether engaged facially or as applied, a ruling on the merits of Section 5 is likely to prove legally and politically contentious. Eyes will narrow on Justice Anthony Kennedy.

The opinion is here, further coverage is here and notes that plaintiffs have already stated their intent to appeal.