On January 19, a panel of the U.S. Court of Appeals for the D.C. Circuit debated the constitutionality of the Voting Rights Act’s preclearance requirement, one of Act’s most important and successful provisions, which was renewed by a near unanimous Congress in 2006 and signed into law by President George W. Bush.  In 2009, in NAMUDNO v. Holder, the Supreme Court came dangerously close to striking down that 2006 renewal, raising a host of constitutional concerns about the requirement that jurisdictions that have a history of engaging in racial discrimination in voting obtain federal permission before altering their voting laws and regulations, but ultimately avoiding the constitutional question.  During yesterday’s argument, the panel — Judges David S. Tatel, Thomas B. Griffith and Senior Judge Stephen F. Williams — grappled with the constitutional questions raised by Chief Justice Roberts in NAMUDNO.  All three members of the panel were very active during the argument, posing numerous questions to the parties, often in rapid-fire succession.

In the District Court Judge John D. Bates, a conservative judge appointed by President George W. Bush, issued a comprehensive, 151-page opinion upholding the Act, finding that the Act was an appropriate exercise of Congress’ power to enforce the Fifteenth Amendment’s constitutional prohibition on racial discrimination in voting.  Applying both the law and the facts, Judge Bates fully considered the constitutional concerns raised by the Supreme Court in NAMUDNO, and rejected them.  Giving due regard to the “preeminent constitutional role of Congress under the Fifteenth Amendment to determine the legislation” and the “caution required of the federal courts when undertaking the ‘grave’ and ‘delicate’ responsibility of judging the constitutionality of such legislation,” Judge Bates refused to second-guess Congress’ near-unanimous judgment that preclearance was still necessary to stamp out voting discrimination.  Guided by these two fundamental constitutional principles, Judge Bates upheld the Act, finding that Congress had amply demonstrated that preclearance was a congruent and proportional response to current and ongoing racial discrimination in voting.  During the argument before the D.C. Circuit, Shelby County took aim at Judge Bates’ opinion, seeking to convince the panel that the preclearance requirement was outdated and could not be extended by Congress consistent with the Constitution.

Shelby County’s attorney, Bert Rein, immediately ran into difficulties, with both Judge Griffith and Judge Tatel echoing the fundamental principles on which Judge Bates had relied.  Early in the proceedings, Judge Griffith pressed Rein to explain why it would be appropriate to second-guess Congress’ predictive judgment that preclearance was still necessary to prevent and deter current and ongoing racial discrimination in the covered jurisdictions, particularly since the Constitution in the Fifteenth Amendment explicitly gives Congress the power to eliminate racial discrimination in voting.   “Why shouldn’t we just defer to the judgment of Congress?”  Likewise, Judge Tatel seemed unconvinced by Shelby County’s argument that the court should declare preclearance unconstitutional because of changed conditions in the South, the region of the country most affected by the preclearance requirement.  While noting that conditions have changed since first passage of the Act in 1965, Judge Tatel emphasized Congress’ finding that the preclearance requirement was still necessary because individual, case-by-case litigation would not adequately prevent and deter racial discrimination in voting in the covered jurisdictions.  That judgment, Judge Tatel suggested, was entitled to deference.

Judge Williams, who asked relatively few questions during Shelby County’s argument, emerged in the second half of the argument as the member of the court most likely to vote to strike down the Act’s preclearance requirement.  Repeating many of the concerns raised by Chief Justice Roberts in avoiding the constitutional issue in NAMUDNO, Judge Williams asked a line of pointed questions to Sarah Harrington, representing the United States, suggesting that the Act’s coverage provision improperly relied on decades-old data and that its substantive standard swept too broadly, preventing covered jurisdictions from instituting nondiscriminatory voting changes.  Judge Tatel and Judge Griffith also posed forceful questions to Harrington.   Judge Tatel, who had written the lower court opinion reversed by the Supreme Court in NAMUDNO,  chided Harrington for failing to come to terms with the Court’s holding in NAMUDNO that the Act raises serious constitutional concerns, while Judge Griffith asked her to explain why the possibility of case-by-case litigation under other provisions of the Voting Rights Act – particularly Section 2, which prohibits voting practices that result in racial discrimination on a nationwide basis – was not sufficient to eliminate ongoing racial discrimination in the covered jurisdictions.

The panel yesterday appropriately asked counsel many probing questions about the constitutional concerns raised in NAMUDNO and the massive, 15,000-page record assembled by Congress in support of the 2006 renewal of the Voting Rights Act.  Now, as the three judges begin their deliberations, they face this fundamental constitutional question: under the Fifteenth Amendment, is it up to Congress or the courts to make the judgment whether the preclearance requirement continues to serve the critical purpose of preventing and deterring racial discrimination in voting.  In his powerful opinion upholding the Act, Judge Bates showed that the Fifteenth Amendment gives Congress broad power to combat racial discrimination in voting and refuted each one of the constitutional concerns raised by Chief Justice Roberts in NAMUDNO, making clear that courts should be loathe to second-guess the means selected by Congress to protect one of our most fundamental constitutional guarantees.  If Judge Griffith, whose questioning echoed Judge Bates’ reasoning, writes the opinion for the panel affirming Judge Bates, these two conservative jurists will have gone a long way to demonstrating that the attack on the Voting Rights Act cannot be squared with the Constitution.