If the opponents of Section 5 of the Voting Rights Act are confident of victory in the case of Shelby County v. Holder, they are not sitting back or acting complacent.
The briefing supporting Shelby County amounts to a full-throated, aggressive attack against the law on several fronts – but also an attack on Congress for ignoring the Supreme Court’s recent admonitions to update and repair the statute.
The 20-plus briefs seem aimed in part at getting the court angry enough at Congress and the Obama administration that it will feel more comfortable about invalidating a law which, as defenders of the law point out frequently, was renewed by an overwhelming congressional vote as recently as 2006.
"If Justice [Anthony] Kennedy was reluctant in the past to overturn the law because of its symbolic importance, then Congress has given him reason to do it," said Jones Day partner Michael Carvin, author of a key brief on Shelby County’s side.
"Congress has thumbed its nose at the Court’s repeated expressions of concern over the constitutional implications of section 5, and for three years has ignored the Court’s most recent warning that the law raises serious constitutional issues," said Carrie Severino of the conservative Judicial Crisis Network.
Many of the briefs point to the court’s 2009 decision in Northwest Austin Municipal Utility District No. 1 v. Holder, which stopped short of declaring Section 5 unconstitutional, but pointed out "serious constitutional concerns" including issues of state sovereignty and outdatedness. Chief Justice John Roberts Jr. said the formula by which the coverage of the law was determined "fails to account for current political conditions," and the bailout provision that lets jurisdictions bail out of the preclearance requirements is "all but a nullity."
In a reply brief for Shelby County, its lead lawyer Bert Rein of Wiley Rein wrote that in the years since the Northwest Austin decision, "Congress and the attorney general took no steps to address these constitutional concerns."
Several briefs on Shelby County’s side also attack their adversary’s contentions that the preclearance mechanism is fair and that the bailout provision is an adequate way for deserving jurisdictions to get out from under the preclearance requirement of Section 5.
One brief filed by covered states Arizona, Georgia, South Carolina and South Dakota complained that the preclearance rules were so "burdensome and arbitrary" that Arizona had to seek Justice Department approval to close branch offices of the motor vehicles department, and a Georgia county could not make a change in a polling place necessitated by construction delays. As for the bailout provision, the brief asserted that its purported benefits are "illusory," because the rules require that a state – and all its subdivisions – be clear of voting rights complaints for the previous 10 years before bailout can occur. The states assert that covered jurisdictions will remain under the unconstitutional burdens of the law "unless and until this court removes them."
Another key argument advanced by opponents of Section 5 also seems aimed at increasing the comfort level of justices who might worry about striking down as important a voting right enforcement tool as Section 5. Several briefs assert that even in the absence of Section 5, discriminatory voting practices can be "effectively addressed" by Section 2 of the Voting Rights Act, as Rein put it. Section 2 created a cause of action to challenge voting practices in court nationwide – not just in covered jurisdictions.
Section 5 supporters say Section 2 is inadequate, in part because litigation might last well past the affected election. Jones Day’s Carvin says that argument is "utter nonsense." In his brief for several Section 5 opponents, Carvin asserted that Section 2 is "considerably more effective" than in previous versions of the law.
The connection between the Shelby County dispute and the Northwest Austin decision was also made in a brief on behalf of the conservative Center for Constitutional Jurisprudence. It also asserts that the law was designed to combat "first generation" forms of voting discrimination, like literacy tests, that are no longer prevalent.
The brief was written by lawyers at the Yetter Coleman firm in Austin, Texas. Name partner Gregory Coleman argued before the Supreme Court against Section 5 in the Northwest Austin case. He died in a plane crash in 2010. "This was a strong issue for Greg, and we felt it would honor his legacy to participate in the Shelby County case," said Christian Ward of Yetter Coleman.
A sampling of briefs supporting Shelby County’s challenge to the Voting Rights Act:
Alaska: The thrust of Alaska’s brief was to rebut claims by supporters of Section 5 that the "bail-out" provision is an adequate remedy for jurisdictions that no longer need to be covered by the law. "Alaska has repeatedly suffered the ‘extraordinary federalism costs’ of §§ 4 and 5. These provisions nearly derailed Alaska’s 2012 elections, when the State was sued to stop election preparations under an interim redistricting plan ordered by the Alaska Supreme Court and submitted to the DOJ for preclearance. Although DOJ’s eventual preclearance mooted the lawsuit, the damage to the state’s sovereignty was done.…Alaska exists at the margin of § 5 coverage. The State twice bailed out under the original bailout provision, but now stands unable to bail out because the amended standards are nearly impossible for states to meet." Counsel of Record: Margaret Paton Walsh , assistant attorney general of Alaska.
Cato Institute: In making the point that the jurisdictions covered by Section 5 reflect outmoded data about voting patterns and discrimination, the Cato Institute noted that three New York City counties – Manhattan, Brooklyn and the Bronx — are still required to get preclearance. "Section 5′s preclearance system is an anachronism.…For example, the racial gap in voter registration and turnout is lower in the states originally covered by Section 5 than nationwide. Indeed, the list of Section 5 jurisdictions is bizarre: six states of the Old South (and some counties in three others), plus Alaska, Arizona, and counties or townships in other states ranging from New Hampshire to South Dakota. As amicus’s counsel has noted in previous briefs and other writings, (only) three New York counties are covered, all boroughs in New York City. Perhaps the four members of this Court who hail from that fair city know something that the rest of us don’t." Counsel of Record: Ilya Shapiro of the Cato Institute.
Judicial Education Project: This brief focused on the proper standard for assessing the constitutionality of civil rights laws. "In City of Boerne v. Flores, the court distilled a century of enforcement jurisprudence into a single standard of review. It held that, with respect to the enforcement provision of the Fourteenth Amendment, ‘[t]here must be a congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end.’… The Court has applied the congruence and proportionality test in weighing the constitutionality of virtually every enforcement statute that it has examined in the wake of Boerne. Since the VRA is an enforcement statute, Boerne’s congruence and proportionality standard is applicable…. Applied here, the Boerne standard requires invalidation of Section 5 of the VRA.…Section 5 was enacted for a five year term in 1965 to address the conditions that prevailed at the time. It has ably served that purpose. It was congruent and proportional at the time; it is no longer so. Its work done, the time has come to praise its considerable accomplishments, and declare that its extraordinary requirements are no longer appropriate means to enforce the Fifteenth Amendment." Counsel of Record: Richard Willard, Steptoe & Johnson LLP.
National Black Chamber of Commerce: "The Chamber rejects the assumption underlying Congress’s reauthorization of Section 5 of the Voting Rights Act that the exceptional circumstances which justified close federal oversight of the electoral practices of many states and localities in 1965 and 1975 persist today. They do not. The Chamber and its members and affiliates work hand-in-hand with government at all levels to foster an environment in which black-owned businesses can take root and thrive. The government officials who are partners in this effort are people of good faith, and do not deserve to be labeled and treated as presumptive discriminators. Federal control of elections, through the ‘preclearance’ process, undermines these officials’ authority and flexibility, to the ultimate detriment of their constituents — many of them minorities. Worse, Section 5 has been abused in some instances to reinforce stereotypes regarding minority voters’ preferences and affiliations, preventing voters who do not embody these stereotypes from electing their candidates of choice." Counsel of Record: David Rivkin, Baker Hostetler.
Tony Mauro can be contacted at email@example.com.