February 2014 Resolved: The Supreme Court rightly decided that Section 4 of the Voting Rights Act violated the Constitution.
Pro has a very narrow path to walk here, unless they do something very unconventional, they’re basically echoing the majority decision in Shelby County v Holder. You can read the decision yourself as well as check out analysis on the SCOTUS blog here or here. In this post I will go through the main points of the majority opinion. Pro will most likely interpret “right decided” as “decided correctly by the Constitution.” This is what the Supreme Court decided in Shelby, arguments for which are made in the majority and concurring opinion.
While Section 4 was ruled unconstitutional, it is important to note that the Court decided the formula for preclearance was unconstitutional, not the concept of preclearance. This means that Congress still has the ability to legislate preclearance tests and a new formula. There are still legislative remedies to stop voter suppression laws and Congress has the ability to pass new formulas. Check out the most recently introduced voting rights bill here as well as new argument that the still intact pieces of the Voting Rights act provide protections such as civil litigation here.
For now, let’s look at majority opinion itself. I highly suggest reading the entire piece, but here I have pulled out some key points. Beyond discussing the basic principles and equal sovereignty of the States to enact legislation, the Court focused in on current voting discrimination and how the formula for preclearance had not been updated to the current situation. The Court points out the strong language used to depict the voting conditions which precipitated the Voting Rights Act which “persisted on a pervasive scale” in contrast with the much improved voting conditions of the present.
Knowing the history of the VRA on the Pro is crucial. The Act was updated in both 1970 and 1975, but the 2006 renewal did not update the bill. In 2009 the Supreme Court heard a case, Northwest Austin Municipal Util. Dist. No. One v. Holder, that challenged section 4 of the VRA. While the Supreme Court upheld the constitutionality of Section 4, it warned Congress that they needed to update the formula as they had done in 1970 and 1975.
Take a look at the language of the majority opinion and you will find these clear themes.
“The coverage formula and preclearance requirement were initially set to expire after five years, but the Act has been reauthorized several times. In 2006, the Act was reauthorized for an additional 25 years, but the coverage formula was not changed. Coverage still turned on whether a jurisdiction had a voting test in the 1960s or 1970s, and had low voter registration or turnout at that time. Shortly after the 2006 reauthorization, a Texas utility district sought to bail out from the Act’s coverage and, in the alternative, challenged the Act’s constitutionality. This Court resolved the challenge on statutory grounds, but expressed serious doubts about the Act’s continued constitutionality” (1-2).
“imposes current burdens and must be justified by current needs” (2).
“Coverage today is based on decades-old data and eradicated practices. The formula captures States by reference to literacy tests and low voter registration and turnout in the 1960s and early 1970s. But such tests have been banned for over 40 years. And voter registration and turnout numbers in covered States have risen dramatically” (3).
“Respondents also rely heavily on data from the record compiled by Congress before reauthorizing the Act. Regardless of how one looks at that record, no one can fairly say that it shows anything approaching the “pervasive,” “flagrant,” “widespread,” and “rampant” discrimination that clearly distinguished the covered jurisdictions from the rest of the Nation in 1965. Katzenbach, supra, at 308, 315, 331. But a more fundamental problem remains: Congress did not use that record to fashion a coverage formula grounded in current condi- tions. It instead re-enacted a formula based on 40-year-old facts having no logical relation to the present day” (4).
Pro teams should use the powerful language of the court to draw a clear picture between the world in which the coverage formula was developed and current times. Educate the judge about Congress’s past actions and the Supreme Court’s warning in 2009. Make sure you draw a full picture explaining that Congress still has the ability to protect voting rights and states have their own scrutiny processes they must use to pass legislation regarding voting rights.
Come back next week for an analysis on the Con side.