Right from the start of the oral argument on February 27, Supreme Court Justices Sotomayor and Kagan jumped on Shelby County’s lawyer asking why Congress didn’t have good reason to keep Alabama and Shelby County in the doghouse known as Section 5 of the Voting Rights Act.
One sound answer is that, even if Shelby County and Alabama are sitting ducks for Congress, that can’t be done with the formula now in the statute. The statutory formula looks at whether a jurisdiction used tests and devices to keep voter participation down and had voter registration and turnout below 50% in the 1964, 1968, and 1972 presidential elections. Back in 1965, when the Voting Rights Act became law, and still in 1975, when Congress last updated the formula, the use of tests and devices correlated with low voter turnout.
They don’t correlate anymore for two reasons. First, Congress prohibited the use of tests and devices as conditions for voter registration or turnout throughout the country in 1974. So now, if registration or turnout is down, it’s for some reason other than a jurisdiction’s use of tests and devices. Second, and more important, Alabama’s voter registration and turnout figures are now well north of 50%.
Congress didn’t change the statutory formula in 2006, it just moved the goalposts. In the legislative history, it pointed to the number of black elected officials, the fact that USDOJ sent observers to monitor elections in some jurisdictions, and the number of successful Section 2 lawsuits in the legislative history. But, legislative history is not law. If Congress thought those factors were important, it should have included them in the statutory formula when it extended the life of Section 5 for another 25 years.
And, while some make much of the 3,700-page record that Congress assembled to support its decision to preserve the statutory coverage in amber, that record fails to address why the formula should continue to use election results that were then 35 years old. In fact, if Congress had looked at more recent presidential elections, some non-covered jurisdictions would have been in danger because their voter turnout was less than 50%. In the presidential election of 1988, Arkansas, Kentucky, Maryland, Nevada, Tennessee, and West Virginia didn’t reach the 50% turnout level, and Arkansas, Delaware, Illinois, Indiana, Kentucky, Maryland, Nevada, Pennsylvania, Tennessee, Utah, and West Virginia didn’t make it in 1996. Maybe the Congress critters from those states figured out updating the formula by looking at more recent elections might not be helpful to their constituents. One way or another, as Rick Pildes, a liberal voting rights scholar, noted, Congress just kicked the can down the road in 2006.
As for the number of elected African-American officials, the record hardly favors the non-covered states. Chief Justice Roberts told the Solicitor General at oral argument that Mississippi leads the country in the number of elected black officials, and that Massachusetts is dead last.
Looking at things like the number of objections or the sending of observers is a circular exercise. USDOJ doesn’t get Section 5 submissions from noncovered jurisdictions, so noncovered jurisdictions have no objections. As for the covered jurisdictions, the number of objections is minuscule. And, observers go where USDOJ sends them, often at the request of interested parties.
The number of Section 2 cases is tricky for several reasons. Section 2 of the Voting Rights Act applies nationwide and prohibits the imposition or application of voting standards and procedures that result in the denial or abridgment of the right to vote on account of race or color. It covers both intentional discrimination and actions that have a disproportionate effect on minority voters and is frequently called on in redistricting litigation.
Because it covers both purposeful discrimination and nonpurposeful results, simply counting Section 2 cases sweeps too broadly. Furthermore, when they’re counted, only some of the covered states have more successful Section 2 cases than some uncovered states. In his dissenting opinion in the D.C. Circuit, Judge Williams pointed out that the five worst noncovered jurisdictions (including Illinois and Arkansas) had worse records than eight of the covered jurisdictions, and that only four of the ten jurisdictions with the greatest number of successful Section 2 lawsuits were covered.
Alabama was one of them, but even its numbers need to be carefully parsed. The vast majority of the cases arose out of a challenge to at-large election schemes. When that challenge succeeded, more than 180 counties and municipalities got their own cases challenging one statewide practice of at-large elections. Known as Dillard cases, some involved municipalities with fewer than 200 residents. Counting Dillard wins over places like Loachapoka (180 residents in the 2010 Census) and Orrville (204) overlooks strategic factors like the ability to handle legal fees, something places like Loachapoka, Orrville, and other towns of that size are not well equipped to do.
Four years ago, in Northwest Austin Municipal Utility District No. 1 v. Holder, the Supreme Court warned that Section 5 “imposes current burdens and must be justified by current needs.” Today’s needs are not those of 1965, and 35-year-old elections are hardly current.
Congress put a formula in the law in 1965. It should be able to do it again. There’s no good reason why the Court shouldn’t tell Congress to get with it and update the coverage formula.