By Brenda Wright, Vice President for Legal Strategies at Demos1

At the end of October, the U.S. Supreme Court will likely announce whether it will take up the question of the constitutionality of section 5 of the Voting Rights Act of 1965 – the so-called “preclearance” provision, which prevents certain covered jurisdictions from implementing changes in their voting laws and practices unless they can demonstrate to the U.S. Attorney General or a three-judge district court in the District of Columbia that the change will not be discriminatory in either effect or purpose.

Three years ago, the Supreme Court seemed poised to decide that very question in Northwest Austin Municipal Utility District No. One v. Holder (NAMUDNO), but the Court ultimately resolved that case on nonconstitutional grounds, leaving the question of section 5’s constitutionality for another day. Nevertheless, Chief Justice Roberts’ opinion for the Court in NAMUDNO stated that the “Act’s preclearance requirements and its coverage formula raise serious constitutional questions,” virtually ensuring further challenges to section 5.2 Since then, several covered states or subjurisdictions have filed new cases challenging the continued constitutionality of section 5, and a case brought by Shelby County, Alabama, on the Court’s docket for October 26, now presents the most likely opportunity for the Court to add this momentous issue to an already highly charged docket of constitutional questions.3

As it turns out, the Court’s decision to step back from the brink of a constitutional ruling in NAMUDNO in 2009 has left section 5 in place during a particularly critical three years, during which the importance of section 5 as a bulwark against racial discrimination in voting has been thrown into sharp relief. Several developments in the past three years suggest that the case for upholding section 5 against constitutional challenge has been strengthened compared to the situation in 2009.

First, the last three years have seen several prominent examples in which covered states have adopted redistricting plans or voting procedures that have badly flunked section 5’s test for racially discriminatory purpose or effect. Redistricting in Texas after the 2010 Census is a prime example. Texas decided to bypass section 5 review of its redistricting plans by the U.S. Department of Justice, on the theory that the Obama Department of Justice (“DOJ”) might be unduly harsh or partisan in its assessments and that the state could more readily obtain preclearance by initially bringing its redistricting plans to a three-judge U.S. District Court in the District of Columbia. The court’s decision in that litigation, State of Texas v. Holder, shows that Texas badly miscalculated.4

Far from issuing a pass to Texas, the three-judge district court found that all of Texas’s redistricting plans – for Congress, the state senate, and the state house – were racially discriminatory in effect and, in some instances, in purpose. The court’s findings were devastating to Texas’s claim that it is ready to be released from the section 5 review process. Texas’s congressional redistricting plan was a case in point. Texas had been awarded four new congressional seats, largely because of growth in Hispanic population, yet the Texas legislature had done everything possible to minimize the number of districts in which Hispanics could elect a candidate of choice. The court decision is aptly summarized by a Dallas Morning News editorial:

The court, citing emails and other evidence, found that those in power deliberately diminished the Hispanic vote by engineering some districts in ways that made them appear to be minority-friendly when in fact they were not. This was accomplished by replacing Latinos who had higher voting turnout with those who would most likely not turn out.

On this point, there is no ambiguity. Emails from key participants in the redistricting plan clearly reveal the noxious intent. For the judges, that amounted to proof positive. “This testimony is concerning because it shows a deliberate, race-conscious method to manipulate not simply the Democratic vote but, more specifically, the Hispanic vote,” the judges wrote after analyzing one House district.5

But the problems didn’t stop with the congressional plan. The court also found that Texas’s state senate and house redistricting plans included racially discriminatory elements that prevented preclearance. In sum, detailed judicial review of the redistricting process in Texas after the 2010 Census exposed the ugly truth that discriminatory enactments affecting voting rights remain a serious problem more than forty years after enactment of the Voting Rights Act.

Redistricting was not the only area in the past three years in which courts have found that voting changes failed scrutiny under section 5 of the VRA. The DOJ used its section 5 authority to object to restrictive photo ID provisions in South Carolina and Texas, and to restrictions on early voting in Florida, all adopted after the NAMUDNO decision. Each of these states went to court seeking to override these objections, and was rebuffed. A three-judge federal court reviewing Florida’s changes ruled that the legislature’s cutbacks on early voting were racially discriminatory under section 5.6 In Texas, another three-judge court ruled that the state’s restrictive photo ID law was racially discriminatory and could not pass muster under section 5.7 In South Carolina, after the DOJ objected, the state announced dramatic changes to ameliorate the discriminatory impact of its restrictive photo ID law, but the three-judge federal court still found that these changes had come too late to permit the photo ID law to go into effect for the 2012 elections.8

Second, and perhaps of equal importance, the court rulings that have found section 5 violations in these prominent cases over the past three years have been endorsed by judges appointed by Republican as well as Democratic presidents, and simply cannot be written off as the product of partisan judicial decisions. For example, the Texas redistricting decision was principally written by Judge Thomas B. Griffith, an appointee of George W. Bush, and joined (in major part) by another Bush appointee, Rosemary Collyer, as well as an Obama appointee, Beryl Howell. The South Carolina voter ID decision was written by Brett Kavanaugh, a U.S. Circuit Court judge appointed by George W. Bush, who worked closely with Kenneth Starr on the Clinton impeachment effort, and was joined by another Bush appointee, District Judge John Bates, who also worked with Kenneth Starr on the Clinton impeachment. Even the Shelby County, Alabama decision upholding the constitutionality of section 5, written by Clinton appointee David Tatel and now under consideration by the U.S. Supreme Court, was joined by George W. Bush appointee Thomas Griffith. The careful opinions in these cases written or joined by judges appointed by presidents of both parties, which largely affirm the positions taken by the Obama Justice Department, strongly refute the charge that section 5 enforcement by DOJ creates too great a danger of partisan manipulation.

When the Supreme Court declined the opportunity to review the constitutionality of section 5 of the Voting Rights Act three years ago in the NAMUDNO case, it suggested that the Roberts Court had some reluctance about invalidating this key provision of the Voting Rights Act, which is widely viewed as the most important and successful civil rights statute ever enacted. For all the reasons assessed above, the developments of the past three years seem only to strengthen the case for upholding section 5. Under these circumstances, it will be fascinating to see whether the Roberts Court really wants to make its mark as the Court that strikes down the cornerstone law affirming America’s commitment to overcoming, and decisively ending, our troubled history of racial discrimination in voting.

1 Dēmos, www.demos.org (last visited Oct. 22, 2012).
2 Nw. Austin. Mun. Util. Dist. No. One v. Holder (NAMUDNO), 129 S. Ct. 2504, 2513 (2009).
3 Petition for Writ of Certiorari, Shelby Cnty. v. Holder, No. 12-96 (U.S. July 20, 2012), available at http://sblog.s3.amazonaws.com/wp-content/uploads/2012/08/12-96-Shelby-County-v-Holder-Petition-for-a-Writ-of-Certiorari.pdf.
4 Texas v. Holder, No. 12-cv-00128, 2012 WL 3743676 (D.D.C. Aug. 30, 2012), available at http://moritzlaw.osu.edu/electionlaw/litigation/documents/Order_006.pdf.
5 Editorial, The Sins of Redistricting, Dallas Morning News, August 29, 2012, http://www.dallasnews.com/opinion/editorials/20120829-editorial-the-sins-of-redistricting.ece.
6 Florida v. United States, No. 1:11-CV-01428 (D.D.C. Aug.  16, 2012), available at http://moritzlaw.osu.edu/ electionlaw/litigation/documents/CourtOrderEnteringJudgmentsonCounts2and3.pdf.
7 Holder, No. 12-cv-00128, 2012 WL 3743676.
8 South Carolina v. United States, No. 12-203, 2012 WL 4814094 (D.D.C. Oct 10, 2012), available at http://big.assets.huffingtonpost.com/scvoterid.pdf.