The next big showdown over the constitutional powers of the federal government is nearly upon us.  When the Supreme Court reconvenes in October, the Court is widely expected to grant review in Shelby County v Holder, a constitutional challenge to Congress’ 2006 renewal of the preclearance requirement of the Voting Rights Act, one of the Act’s most important and successful provisions in preventing and deterring racial discrimination in voting. Since it was first enacted in 1965, the Voting Right Act has required jurisdictions with a history of racial discrimination in voting to get permission – “preclearance” – from the U.S. Department of Justice or a three-judge federal court in Washington D.C. before changing their  voting laws and regulations.  Recent court opinions written by judges across the ideological spectrum illustrate just how vital preclearance remains as a tool for preventing racial discrimination in voting.

The case for the constitutionality of the Voting Rights Act should be open and shut.  The Fifteenth Amendment specifically empowers Congress to enact “appropriate legislation” to “enforce” the Amendment’s guarantee that “[t]he right of citizens of the United States to vote shall not be denied or abridged . . . on account of race . . . .”  However, in 2009, in NAMUDNO v. Holder, in an opinion written by Chief Justice John Roberts, the Court concluded that the Act raised serious constitutional questions, demanding that the Act’s burdens be justified by “current needs” while avoiding deciding the constitutionality of the Act’s preclearance requirement.  Shelby County gives the Court the opportunity to decide, once and for all, whether the preclearance requirement falls within  the scope of Congress’ power to protect the right to vote free from racial discrimination. 

With so much at stake, it is unfortunate that, rather than focusing on what the Constitution says about the express powers of Congress to protect the right to vote from the scourge of racial discrimination, a number of the nation’s leading left-leaning election law experts (see here and here) are focusing on Congress’ failure to update the Act’s preclearance coverage formula to account for changing political conditions.  In the words of NYU Professor Rick Pildes on Scotusblog, “Congress has put the Supreme Court in an excruciatingly difficult position” by not updating the coverage for preclearance either when it reauthorized the Act in 2006, or after Chief Justice Roberts’ 2009 opinion in NAMUDNO.  The problem with this handwringing from the left is two-fold.  First, it demonstrates a remarkable naiveté about the political process: as observers of the 2006 reauthorization have recognized, opening up the preclearance coverage formula was a can of worms that almost certainly would have unraveled the entire effort to renew the Voting Rights Act.  Second, this finger pointing at Congress lets the Court’s conservatives off the hook, when, notwithstanding any imperfections, the Voting Rights Act is plainly within Congress’s constitutional authority to enforce the Fifteenth Amendment’s prohibition on racial discrimination in voting.   

To anyone who takes the Constitution’s text seriously, there are glaring holes in the conservative constitutional attack on the Voting Rights Act.  Shelby County’s primary argument is that the Act’s preclearance requirement is outdated and unnecessary, given changes in Alabama (where Shelby County is located) and elsewhere, but the Constitution, in fact, assigns to Congress the job of deciding how to enforce the Constitution’s ban on racial discrimination in voting.  As Chief Justice Roberts recognized in a much-ignored passage of his 2009 opinion in NAMUDNO v. Holder, “the Fifteenth Amendment empowers Congress, not the Court, to determine . . . what legislation is needed to enforce it.”  In renewing the Act in 2006, Congress exercised that judgment.  Lopsided bipartisan majorities of 98-0 in the Senate and 390-33 in the House concluded that the Act was still a necessary tool to combat unconstitutional voting discrimination by states with a long history of voting discrimination. 

When the Shelby County case was considered in the lower courts, conservative jurist  John Bates (an appointee of George W. Bush) in the District Court and liberal stalwart Judge David Tatel (joined by another George W. Bush appointee, Judge Thomas Griffith) of the D.C. Circuit meticulously reviewed the large body of evidence of racial discrimination in voting amassed by Congress in 2006, concluding that Congress had demonstrated that preclearance was still an appropriate tool to enforce the Fifteenth Amendment’s prohibition on racial discrimination in voting.  Shelby County disagrees, but its arguments cannot be squared with the text’s express grant of power to Congress to select the means of eliminating the scourge of racial discrimination in voting.    

To be sure, the Supreme Court in a long line of cases since the mid-1990s has limited the power of Congress to enforce the guarantees of the Civil War Amendments.  In these cases, the Court struck a balance, reaffirming the power of Congress to enact prophylactic rules to protect established constitutional guarantees while striking down efforts to provide additional guarantees not properly rooted in the Constitution.  In short, the Court ruled that Congress had to be enforcing actual constitutional guarantees, but once it was, the Court recognized that Congress had wide latitude to act.  That balance allowed the Court to limit the reach of federal age and disability discrimination laws and, most recently, the Family and Medical Leave Act, but it does not help Shelby County at all.  The Court has said time and again that racial discrimination by the states, particularly when it concerns the fundamental right to vote, violates the Constitution.  Not surprisingly, the Court has upheld the Voting Rights Act four times (in 1966, 1973, 1980, and 1999), and its modern cases have always described the Voting Rights Act as the classic example of appropriate enforcement legislation.          

It is certainly true that the coverage formula relies on decades-old data that has less relevance today.  But, as the D.C. Circuit concluded, the formula was always less important than the jurisdictions it covered.  Going all the way back to 1965, “Congress identified the jurisdictions it sought to cover – those for which it had ‘evidence of actual voting discrimination’ – and then worked backward, reverse-engineering a formula to cover those jurisdictions.”  And, as the record described by Judge Bates and Judge Tatel in Shelby County shows, these jurisdictions continue to be the worst offenders, consistently refusing to live up to the Constitution’s promise of a multi-racial democracy.  Further, as Nate Persily observes, “no objective metric, such as minority turnout or officeholding  or even reported court cases, has ever distinguished all the jurisdictions in need of greater oversight.”  Perhaps, for this reason, no one has ever come up with a workable, effective substitute for the current coverage formula.  Even with a bevy of experts closely studying voting rights policy, it is not clear how one would design a new formula. In 2006, Congress considered the possibility of using modern voter turnout and registration data to update the coverage formula, but overwhelmingly rejected this course because it would have, in the words of one Republican Congressman, “turn[ed] the Voting Rights Act into a farce, ” eliminating the preclearance requirement in jurisdictions with the longest history of racial discrimination in voting.   The Constitution does not demand the impossible of Congress in order to protect the right to vote free from racial discrimination. 

Last June, Chief Justice Roberts cast the deciding vote to end the long-running legal battle over the constitutional power of the federal government to solve the nation’s health care crisis by holding that, because the Constitution expressly gives the federal government the power to tax, the Supreme Court had no basis to set aside the penalty provision of the Affordable Care Act’s individual mandate.  The same reasoning demonstrates the surprisingly easy case for upholding the constitutionality of the Voting Rights Act.  If the Court grants review in Shelby County, the Court should reaffirm that “the Fifteenth Amendment empowers Congress, not the Court, to determine . . . what legislation is needed to enforce it,” and uphold the 2006 renewal of the Voting Rights Act as a constitutional exercise of Congress’ express power to protect the right to vote free from racial discrimination.