Yesterday, in a packed courtroom in the federal courthouse in Washington, D.C., District Judge John Bates heard more than three hours of oral argument on the constitutionality of Congress’ near-unanimous 2006 decision to renew the preclearance provision of the Voting Rights Act, one of the Act’s most important and successful provisions.   Over the course of the argument in Shelby County v. Holder, the parties debated the meaning of the Fifteenth Amendment’s guarantee of the right to vote free from racial discrimination, the scope of judicial review of congressional legislation to enforce the Fifteenth Amendment, and the exhaustive record Congress developed in 2005 and 2006 to support renewal of the Act’s preclearance provision, which requires certain jurisdictions with a history of racial discrimination in voting to obtain federal approval before making changes in voting laws or regulations.

One of the critical questions in the case is the scope of Congress’ powers under the Fifteenth Amendment, which explicitly grants to Congress the power to enact all “appropriate legislation” to enforce the constitutional prohibition on racial discrimination in voting.  Early in the argument, Judge Bates appeared to recognize that constitutional text and history as well as the Supreme Court’s own precedent point in favor of giving broad deference to congressional action to prohibit and prevent racial discrimination in voting.  Judge Bates repeatedly made the point that the Supreme Court’s cases have consistently applied a rational basis standard in reviewing congressional action enforcing the Fifteenth Amendment.  That standard, Judge Bates suggested, recognizes that Congress has the primary responsibility under the Fifteenth Amendment for securing the right to vote, and that courts should not substitute their own judgment for that of Congress.  Pushing back on Shelby County’s suggestion that the Fifteenth Amendment only secures the right to cast a ballot, Judge Bates observed that the Fifteenth Amendment’s text prohibits both discriminatory denial and abridgement of the right to vote.

As was expected, much of yesterday’s hearing focused on the extensive record that Congress amassed to justify renewal of the Voting Rights Act’s preclearance provision.  Before renewing the Act, Congress held 21 hearings, interviewed more than 90 witnesses, and found that “covered” jurisdictions had engaged in thousands of discriminatory electoral practices between 1982 and 2006.   Samuel Bagenstos, representing the United States, and Kristen Clark of the NAACP LDF, representing a group of African American voters living in Shelby County, took the court through the evidence Congress relied on to support its conclusion that the preclearance requirement was still necessary to root out racial discrimination in voting.

Judge Bates seemed most troubled by Congress’ decision not to update the coverage formula used to determine which states, counties, and other local governments are subject to the Act’s preclearance requirement.  He was plainly concerned that the coverage formula did not reflect current conditions; in response, the Act’s defenders pointed to the evidence before Congress that showed that the Voting Rights Act’s preclearance provision, both in 1965 and today, properly targets jurisdictions that have a history of engaging in racial discrimination in voting.

As demonstrated by the amicus brief that CAC filed in the case, the text and history of the Fifteenth Amendment give Congress broad power to prevent and deter racial discrimination in voting, including broad discretion to enact all “appropriate” legislation.  Using the Fifteenth Amendment’s explicit grant of authority, a nearly-unanimous Congress in 2006 determined that the Voting Rights Act was still necessary to ensure the Constitution’s promise of equal citizenship and democracy.  Congress carefully considered and rejected suggestions that the Act’s preclearance and related coverage provisions needed to be changed, concluding that preclearance was still necessary to secure the right to vote free from racial discrimination in jurisdictions that had been subject to preclearance because of their long history of engaging in racial discrimination in voting.  As we argued our brief, Judge Bates should honor the text and history of the Fifteenth Amendment, and defer to the judgment of Congress in this matter.

We’ll of course report back here when Judge Bates issues his ruling.