The Voting Rights Act decision as a clear example of judicial activism

National Constitution Center

Last week, Eric Holder announced that the Department of Justice would sue Texas over its new voting ID law and redistricting plan. Vowing that the U.S. wouldn’t allow the recent Supreme Court decision gutting Sections 4 and 5 of the Voting Rights Act to invite states to suppress minority voting rights, Holder promised that the Obama administration would sue under a different provision of the Voting Rights Act—Section 2—which the Court didn’t address in the case.

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Editor’s note: This commentary first appeared on The New Republic’s website.

As Molly Redden has reported, the lawsuits face an uphill battle because courts have interpreted Section 2 of the voting rights act to ban only voting practices that are intentionally discriminatory and have established a high burden of proof for intentional discrimination.

There is, however, another, deeper reason that the Section 2 suits are unlikely to succeed: several of the conservative justices on the Supreme Court have expressed deep skepticism about the constitutionality of Section 2 of the Voting Rights Act itself.

When Congress amended Section 2 in 1982 to ban voting practices that had the effect, rather than intent, of suppressing minority votes, the Supreme Court came close to suggesting that the 1982 amendments were themselves unconstitutional.

In other words, Justice Anthony Kennedy was being idealistic, at best when he suggested at oral arguments that Section 2 might be a plausible alternative to Section 4 in preventing practices like voter ID laws that have the effect of suppressing minority participation.

The fact is that the Supreme Court’s approach to Voting Rights has been like a game of Whac-A-Mole: every time Congress tries to ban voting rights discrimination under one provision of the Voting Rights Act, the Court smacks it down, forcing Congress to try other approaches that are smacked down in turn.

That’s why Justice Ruth Bader Ginsburg was right to tell the New York Times last weekend that “if it’s measured in terms of readiness to overturn legislation, this is one of the most activist courts in history.”

To understand the activism of the Court’s approach to Voting Rights, a brief history of Section 2 of the Act may be helpful. Section 2 says that “No voting qualification or prerequisite to voting, or … procedure shall be imposed … to deny or abridge the right of any citizen of the United States to vote on account of race or color.”

In the 1973 White v. Regester case, the Supreme Court interpreted Section 2 to ban voting practices that had the effect of suppressing minority voting, even if they weren’t intended to do so. But in 1980, as the Court grew more conservative, it reversed itself and held that only intentional voting discrimination was illegal under Section 2. In 1982, by bipartisan majorities, Congress repudiated the Court’s narrow view of voting discrimination and amended Section 2 to make clear that voting practices that had discriminatory effects were illegal, even without clear evidence of discriminatory intent.

For nearly a decade, between 1992 and 2001, the Supreme Court came close to suggesting that Congress’s attempt to ban voting practices that had discriminatory effects was itself unconstitutional.

Four conservative justices – Chief Justice Rehnquist, and Justices Scalia, Thomas, and Kennedy– insisted that all racial classifications in voting were inherently suspicious, and that voting districts drawn for the benefit of minorities should be struck down whenever race was the “predominant factor” motivating their design.

Four liberal justices insisted that the framers of the 14th and 15th Amendments intended Congress to have broad power to ban voting discrimination in all of its forms, explicit and subtle, and that the federal government’s attempt to combat voting discrimination should be upheld by the courts unless it was completely irrational.

Justice Sandra Day O’Connor tried to split the difference between the two camps, at one point writing a concurrence to one of her own opinions to make clear that she believed that Section 2 of the Voting Rights Act was constitutional.

Finally, in 2001, in one of the last liberal victories in a voting rights case, Justice Stephen Breyer wrote a 5-4 decision joined by O’Connor upholding the boundaries of the Twelfth Congressional district in North Carolina, which had been redrawn after the Court first struck them down in 1992. African American voters overwhelmingly voted for Democrats, the Court held, and therefore it was hard to distinguish a legislative attempt to protect incumbents from an attempt to empower African Americans. Because the protection of incumbents was a legitimate goal under Section 2 of the voting rights act, the district could stand.

In the Obama administration’s suit against Texas’s latest redistricting plan, Breyer’s opinion is now being turned on its head. In response to the Justice Department’s claim that the Texas district discriminates against minority voters, Texas has cited Breyer’s opinion to support its claim that, in fact, the district discriminates against Democrats. “DOJ’s accusations of racial discrimination are baseless,” Texas writes. “In 2011, both houses of the Texas Legislature were controlled by large Republican majorities, and their redistricting decisions were designed to increase the Republican Party’s electoral prospects at the expense of the Democrats. It is perfectly constitutional for a Republican-controlled legislature to make partisan districting decisions, even if there are incidental effects on minority voters who support Democratic candidates.”

As Richard Hasen has pointed out, this argument may doom the Justice Department’s challenges not only to redistricting plans but also to voter ID laws in states like North Carolina and Texas: as long as a state can argue that its election laws were motivated by a desire to discriminate against Democrats, not African Americans, the legal challenges may well falter on the government’s inability to prove intentional racial discrimination.

In other words, no matter how they try to combat racial discrimination in voting, Congress and the Justice Department have been thwarted by the Supreme Court.

When Congress repudiated the Court’s holding that Section 2 of the Voting Rights Act requires proof of intentional discrimination, the Court came close to suggesting that Congress’s judgment was unconstitutional. And now that the Justice Department tried to meet the Court’s elevated standard by claiming that districting plans and voter ID laws are, in fact, intended to discriminate against minorities, states like Texas are responding that, in fact, they’re merely intending to discriminate against Democrats. Whac-A-Mole again.

Now that the Court has driven a stake through the heart of Sections 2 and 4 of the Voting Rights Act, one alternative remains: Section 3.

That’s the section that allows the federal government to require states to “bail in”—in other words, to add states to the list of those that require federal approval before they can change their voting practices.

In the Texas cases, the Justice Department has already requested that a court consider requiring Texas to “bail in” under Section 3, meaning it would remain under federal supervision. And voters challenging North Carolina’s new districting and voter ID laws have similarly invoked the Section 3 “bail in” provision to request federal supervision of North Carolina as well. Section 3 allows judges to bail in jurisdictions on the basis of their recent misconduct, which solves the problem of out of date triggers that concerned the Supreme Court in the Shelby Case.

And as Akhil Amar of Yale Law School argues, Section 3 should be interpreted broadly to allow judges to bail in states like Texas and North Carolina whose voting practices have discriminatory effects, whether or not there is clear proof of discriminatory intent. “Section 3 needs to be reinvigorated with an effects analysis, which is what Congress would have wanted if it knew the Court would knock Section 4 out.”

Unfortunately, courts so far have interpreted Section 3 in the opposite way, imposing a high burden of intentional discrimination before allowing judges to bail in states. That’s why only two states—Arkansas and New Mexico—have ever been “bailed in” under Section 3, and why it currently applies to only three counties. If courts reject Section 3 challenges in Texas and North Carolina, there will be no Sections of the Voting Rights Act left to invoke. The Wackamol game will be over.

Earlier this week, Representative Jim Sensenbrenner, who opposes Eric Holder’s lawsuits under Section 2 of the Voting Rights Act, said Congress should fix the act instead.

“The first thing we have to do is take the monkey wrench that the court threw in it, out of the Voting Rights Act, and then use that monkey wrench to be able to fix it so that it is alive, well, constitutional and impervious to another challenge that will be filed by the usual suspects,” Sensenbrenner said.

But even in the very unlikely event that Congress does find the votes to fix the Voting Rights Act, history suggests that the Supreme Court will find a way to thwart Congress’s intent again. Section 2, 3, 4, 5 of the Voting Rights Act have all been aggressively resisted by conservative majorities on the Supreme Court, despite Congress’s explicit intent to the contrary. If there’s a clearer definition of judicial activism, it’s hard to imagine.

Jeffrey Rosen is the president and CEO of the National Constitution Center and the legal affairs editor of The New Republic.

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