In Shelby County v. Holder, a 5-4 Supreme Court majority invalidated Section 4(b) of the 2006 reauthorization of the Voting Rights Act. In an earlier post, we noted that the Court’s criticism of the law focused on the congressional reauthorizations process.
There is another intriguing element related to reauthorizations that emerges from the back and forth between the majority and dissenting opinions. Whether the law met the “rational basis” test used to evaluate the constitutionality of statutes was a central source of disagreement among the justices. The majority found that Section 4(b) did not meet this test: “[A] departure from the fundamental principle of equal [state] sovereignty requires a showing that a statute’s disparate geographic coverage is sufficiently related to the problem that it targets.”
Justice Ginsburg, in her dissenting opinion, responded that the majority was applying the wrong standard: “[W]hen Congress acts to enforce the right to vote free from racial discrimination, we ask not whether Congress has chosen the means most wise, but whether Congress has rationally selected means appropriate to a legitimate end. ‘It is not for us to review the congressional resolution of [the need for its chosen remedy]. It is enough that we be able to perceive a basis upon which the Congress might resolve the conflict as it did.’ Katzenbach v. Morgan, 384 U. S. 641, 653 (1966).”
Both the majority and dissenting opinions cite the extensive hearings and documentation produced by Congress when it reauthorized the VRA in 2006, and Justice Roberts feels compelled to explain why that record does not demonstrate a rational basis for Section 4(b): “Congress did not use the record it compiled to shape a coverage formula grounded in current conditions. It instead reenacted a formula based on 40-year-old facts having no logical relation to the present day.”
What is noteworthy to us about this back and forth is that, in trying to address the criticism that the Court has overreached, Justice Roberts brings up the law’s reauthorization schedule: “In fact, the Act’s unusual remedies have grown even stronger. When Congress reauthorized the Act in 2006, it did so for another 25 years on top of the previous 40—a far cry from the initial five-year period.” In other words, another objection to the 2006 law is that it is likely to remain in place for many more years.
Did the fact that a law was on a 25-year reauthorization schedule just become a reason for invalidating it? Would the Court have had less reason to invalidate the VRA if it were authorized for just 10 years? 5 years? We doubt that the length of the authorization would have made much difference in this case with this Court, but it is interesting to speculate on whether Shelby County v. Holder will be cited by future courts to justify using a law’s period of authorization as one criterion in evaluating whether it has a rational basis.
If Congress does manage to revise Section 4(b), will the new law’s expiration date help to decide whether it withstands legal scrutiny, especially given the Court’s argument that laws must reflect “current conditions?” In the future, will judicial oversight become one of the factors lawmakers consider when deciding whether to pass permanent laws, or when deciding the length of a temporary authorization?