Posted by Marcia Coyle 

A divided federal appellate panel today upheld the constitutionality of the heart of the Voting Rights Act in a decision setting the stage for an eventual U.S. Supreme Court battle.

“It’s highly likely we will take this case to the Supreme Court,” said Edward Blum, director of the Project on Fair Representation, a legal defense fund that backed the challenge in Shelby County, Ala. v. Holder. “The opinion is disappointing but not unexpected.”

Supporters and opponents of Section 5 of the Voting Rights Act, which was reauthorized by Congress in 2006, had anxiously awaited the ruling by the three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit.

The case was closely watched by states, civil rights groups and others because it was filed shortly after the Supreme Court raised doubts about Section 5’s constitutionality in its 2009 ruling in Northwest Austin Municipal Utility District No. 1 v. Holder.

Section 5 requires so-called covered jurisdictions– those with a history of voting discrimination– to get preclearance of any changes in voting practices or procedures from the U.S. Department of Justice or the federal district court in Washington. Section 4(b) of the act contains the formula for determining which jurisdictions are covered by Section 5.

Shelby County in 2010 filed a facial challenge to the constitutionality of Sections 5 and 4(b) and sought a permanent injunction prohibiting the attorney general from enforcing them.

Writing for the 2-1 majority, Judge David Tatel, joined by Judge Thomas Griffith, used the Supreme Court’s decision in Northwest Austin to “set the course” for the panel’s analysis of Shelby County’s challenge. Northwest Austin identified two principal concerns, wrote the judge: whether current burdens imposed by Section 5 on covered jurisdictions are justified by current needs, and whether the Section 4(b) coverage formula reaches the problem jurisdictions.

Shelby County, represented by Bert Rein of Wiley Rein, argued that that the legislative record lacks “evidence of a systematic campaign of voting discrimination and gamesmanship by the covered jurisdictions.” Section 5’s remedy is unconstitutional, the county contended, because it is no longer congruent and proportional to the problem it seeks to cure. Shelby County also argued that Section 4(b) contains an “obsolete” coverage formula that fails to identify the problem jurisdictions.

When Congress reauthorized the Voting Rights act in 2006 for another 25 years, Tatel wrote, it acted on the basis of a legislative record over 15,000 pages in length, and including statistics, findings by courts and the Justice Department, and first-hand accounts of discrimination.

Working its way through that legislative record, the panel majority concluded that Congress was correct in deciding that Section 5’s work “is not yet done.” The current burdens imposed by Section 5, wrote Tatel, are justified by current needs. He noted the record contained numerous examples of modern instances of racial discrimination in voting.

As to Section 4(b), Tatel wrote that although its formula “relies on old data, the legislative record shows that it, together with the statute’s provisions for bail-in and bailout, continues to single out the jurisdictions in which discrimination is concentrated.”

Congress, he added, “drew reasonable conclusions from the extensive evidence it gathered and acted pursuant to the Fourteenth and Fifteenth Amendments, which entrust Congress with ensuring that the right to vote—surely among the most important guarantees of political liberty in the Constitution—is not abridged on account of race. In this context, we owe much deference to the considered judgment of the People’s elected representatives.”

Senior Judge Stephen Williams dissented, focusing his disagreement with the majority on Section 4(b). “It goes without saying that racism persists, as evidenced by the odious examples offered by the majority,” he wrote. “But without more evidence distinguishing current conditions in the covered jurisdictions from those in the uncovered ones, § 4(b)’s coverage formula appears to be as obsolete in practice as one would expect, in a dynamic society, for markers 34-to-59 years old.”

The Project on Fair Representation is also behind the affirmative action challenge that the Supreme Court has decided to hear next term: Fisher v. University of Texas at Austin. Wiley Rein’s Bert Rein is also lead counsel for Fisher.

The Project’s Blum said, “Judge Stephen Williams comprehensive dissent hits the bullseye. The coverage formula is stuck in an `irrational 1960s time warp that does not take into account the remarkable racial progress in the covered states during the last 40 years.’”

The coverage formula, he added, was of particular concern to Chief Justice John Roberts Jr. and Justice Anthony Kennedy in the Northwest Austin decision.

Elizabeth Wydra, chief counsel of the Constitutional Accountability Center, which filed an amicus brief supporting the government, countered that the majority opinion “sets up the case very well” for supporters of the Voting Rights Act when the challenge reaches the Supreme Court.

“I thought the opinion did a really great job of taking both the expressed and implied suggestions from Northwest Austin and addressing them in a very even-handed way,” she said. “It was particular[ly] powerful the way the opinion wove together the text and history of the Constitution’s protection of voting rights with acknowledgment that Section 5 places a significant burden on the states, but that burden is justified by Congress’ authority to protect the important right of the franchise.”