The Voting Rights Act: Should the Court consider “current political conditions?”

The U.S. Supreme Court declared Section 4(b) of the Voting Rights Act to be in violation of the Constitution because Congress did not use available information about “current conditions” to make the right decision when it reauthorized the Act in 2006. While the reversal of a congressional statute is not unprecedented, the decision in Shelby County v. Holder seems different. There is every reason to think that Congress made a deliberate decision – the reauthorization process included 21 congressional hearings over a 20-month period. Further, the Court does not take issue with the quality of that information – indeed it cites the congressional findings repeatedly in its decision. Instead, the Court finds fault with the results of the congressional reauthorization process:

“If Congress had started from scratch in 2006, it plainly could not have enacted the present coverage formula. It would have been irrational for Congress to distinguish between States in such a fundamental way based on 40-year-old data, when today’s statistics tell an entirely different story. And it would have been irrational to base coverage on the use of voting tests 40 years ago, when such tests have been illegal since that time. But that is exactly what Congress has done.

In other words, the Voting Rights Act is unconstitutional because Congress did not do enough when it had the opportunity. The judicial scholars we consulted could think of no previous case where this has happened.

It is interesting to think about the implications of different approaches to lawmaking in light of the Shelby County v. Holder decision. How would voting rights be different today if, in 1965, Congress had passed a permanent rather than temporary law? Where would we be if Congress had allowed the VRA to expire in 2006, for example because lawmakers were unable to reach a political consensus at that time?

The Court may be correct in its implicit judgment that Congress chose the path of least resistance in reauthorizing section 4(b) without making substantial revisions. But that is how electorally accountable institutions operate. To suggest that Congress should have done more is naive at best, and the Court fails to offer a remedy that reflects the realities of lawmaking. Now there is no section 4(b). How is this a better outcome than a workable albeit flawed section 4(b)? Hundreds of covered jurisdictions have successfully “bailed out” of the pre-clearance requirements delineated in Sections 4 and 5 over the past 30 years. They have done so by successfully demonstrating that they care about citizens’ voting rights (ironically Shelby County is not among them).  In addition, numerous jurisdictions outside of the deep south (in New Mexico and elsewhere) must seek pre-clearance.

Though the language of 4(b) may seem outdated, the law still seems to work and it is almost assuredly better than what would exist had Congress failed to reauthorize the VRA in 2007, or had it passed a permanent law in 1965.