On Thursday, January 19, the U.S. Court of Appeals for the D.C. Circuit will hear oral argument in one of the most important civil rights cases pending in the federal courts,Shelby County v. Holder, a case with nationwide ramifications for the right to vote and for our democracy.  At issue in Shelby County is the constitutionality of the preclearance requirement of the Voting Rights Act, which requires jurisdictions that have a history of engaging in racial discrimination in voting to obtain federal permission — “preclearance” — before altering their voting laws and regulations.  In 2006, a near unanimous Congress renewed the preclearance requirement, but since then, this critical provision has been under sustained attack.  In June 2009, inNAMUDNO v. Holder, the Supreme Court came dangerously close to striking down the preclearance requirement, but ultimately avoided deciding the constitutional question.  Now, with voting rights increasingly under assault and huge preclearance fights brewing in Texas, South Carolina, and Florida, Shelby County, Alabama, supported by the States of Alabama, Arizona, and Georgia as amici, argues that the preclearance requirement exceeds the power of Congress.

Shelby County is the first case to consider the constitutionality of the preclearance requirement since NAMUDNO.  The three-judge panel of the D.C. Circuit that has been randomly assigned to hear the case consists of Judges David S. Tatel, Thomas B. Griffith and Senior Judge Stephen F. Williams.  Judge Tatel, an appointee of President Bill Clinton who wrote the opinion of the lower court panel in NAMUDNOthat upheld the constitutionality of the 2006 renewal of the Voting Rights Act, seems likely to stick by those views here.  The views of the other two panel members — both appointees of Republican Presidents — are harder to predict at least in part because this is not an issue that does or should break down along ideological lines.  To carefully consider Shelby County’s claims, the panel has scheduled additional time for oral argument, giving each side 30 minutes to present its arguments.

In the District Court, Judge John Bates, a conservative judge appointed by President George W. Bush, issued a comprehensive 151-page opinion rejecting Shelby County’s argument that the preclearance requirement of the Voting Rights Act is unconstitutional.  Judge Bates concluded that the Act satisfied the Supreme Court’s demanding “congruence and proportionality” standard announced in its 1997 ruling inCity of Boerne v. Flores, finding that Congress had ample basis to conclude that racial discrimination in voting still persists and that the preclearance requirement is necessary to ensure that the right to vote is a reality, and not merely a paper guarantee.  Discussing the 15,000-page legislative record developed by Congress, Judge Bates concluded that racial discrimination in voting still uniquely plagues the jurisdictions — predominantly in the South — covered by the preclearance requirement.  In his detailed review of the record, Judge Bates discussed a number of intentionally discriminatory practices — redistricting decisions made on the basis of race, intimidation and harassment at the polls, closing or relocating polling places and even cancelling elections to deprive African Americans of the right to vote — that persist in jurisdictions covered by the Act.  Giving due deference to what Judge Bates called “the preeminent constitutional role of Congress under the Fifteenth Amendment to determine the legislation needed to enforce it,” he concluded that the Voting Rights Act was an appropriate response to safeguard the right to vote free from racial discrimination.

In its appeal, Shelby County argues that Judge Bates profoundly misinterpreted the balance of powers between the federal government and the states.  Seeking to portray the preclearance requirement and its associated coverage provision as hopelessly out of date, Shelby County argues that the Voting Rights Act intrudes on the prerogatives of the states and that Congress lacked the authority to renew it in 2006 without proof that state and local government were still engaging in the same kind of systematic, concerted and ongoing campaign to defy the Fifteenth Amendment through gamesmanship that Congress found when it first enacted the preclearance requirement in 1965.  However, as CAC’s amicus brief in Shelby County demonstrates, Shelby County’s crabbed understanding of Congress’ enforcement powers has no basis in the text and history of the Fifteenth Amendment, the Court’s own precedents, or the facts found by Congress, set out at length in Judge Bates’ opinion.

The text of the Constitution specifically empowers the federal government to secure the right to vote free of racial discrimination.  Under the text, Shelby County should be an easy case.  Proposed in 1869 and ratified in 1870, the Fifteenth Amendment provides that “[t]he rights of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.”  To make this guarantee a reality, the Amendment then provides that “[t]he Congress shall have the power to enforce this article by appropriate legislation.”  Thus, the text that “We the People” added to the Constitution explicitly gave Congress the authority to ensure that the right to vote free from racial discrimination was fully enjoyed by all Americans.

History shows that the Framers of the Fifteenth Amendment wrote this enforcement language to give Congress broad authority — no less sweeping than Congress’ other expressly enumerated powers — to prevent and deter racial discrimination in voting.  The Framers of the Fifteenth Amendment were fully aware that Congress needed broad authority to enact prophylactic legislation, such as the Voting Rights Act, to root out all forms of racial discrimination in voting.  They recognized the grim reality that many states would contrive new rules to deny or abridge the right of African Americans to vote on account of their race.  Sadly, the Framers were all too prescient in realizing that Congress would need powerful tools, like the Voting Rights Act, to ensure that the right to vote was fully enjoyed by all Americans, regardless of race.  Shelby County resists the clear force of this text and history, appealing to state sovereignty and embracing the misguided “states’ rights” claims that lost out in the wake of the Civil War to trump the text and history of the Constitution.

Consistent with this text and history, on four separate occasions, in 1966, 1973, 1980, and 1999, the Supreme Court has upheld the preclearance and coverage provisions of the Voting Rights Act — the same provisions Shelby County challenges — concluding that Congress has broad power to enact prophylactic regulation to prevent and deter unconstitutional racial discrimination in voting by state and local governments.  In these cases, the Court concluded that the text and history of the Fifteenth Amendment demonstrated that “Congress has full remedial powers to effectuate the constitutional prohibition on racial discrimination in voting” and held that the preclearance requirement fell squarely within Congress’ Fifteenth Amendment enforcement powers.

With text and history and these four cases upholding the Act’s preclearance requirement firmly against it, Shelby County appeals largely to the Supreme Court’s recent cases, beginning with Boerne, that have imposed limits on Congress’ enforcement power and required a showing that legislation is congruent and proportional to constitutional violations.  But these cases, in fact, have gone out of their way to reaffirm that the Voting Rights Act is the quintessential example of appropriate enforcement legislation.  Boerne and the Court’s other recent decisions do not call for inventing artificial limitations on the Fifteenth Amendment’s specific grant of power to Congress to ensure that the right to vote free from racial discrimination is fully enjoyed by all Americans.  As Judge Bates properly recognized, even under Boerne’s demanding standard, preclearance is an appropriate requirement to prevent racial discrimination that violates the Constitution.

Thus, when large bipartisan majorities of Congress voted to renew the Voting Rights Act in 2006 by votes of 98-0 in the Senate and 390-33 in the House, they were acting in complete accord with their constitutional obligation to protect the right to vote.   Before renewing the Act, Congress held 21 hearings, interviewed more than 90 witnesses, and found that jurisdictions required to preclear had engaged in thousands of discriminatory electoral practices between 1982 and 2006.  As Judge Bates  correctly concluded, the massive, 15,000-page record compiled by Congress demonstrates that the Voting Rights Act continues to be a necessary bulwark against current and ongoing racial discrimination in voting.

The D.C. Circuit, in deciding Shelby County, should honor the text and history of the Fifteenth Amendment, and defer to Congress’ nearly-unanimous judgment that the Act’s preclearance requirement is still necessary to stamp out racial discrimination in voting. Please check back after Thursday’s argument for our reaction and analysis.