Lead Opinion
Opinion for the Court filed by Circuit Judge TATEL.
Dissenting opinion filed by Senior Circuit Judge WILLIAMS.
In Nоrthwest Austin Municipal Utility District No. One v. Holder,
I.
The Framers of our Constitution sought to construct a federal government powerful enough to function effectively yet limited enough to preserve the hard-earned liberty fought for in the War of Independence. They feared not state government, but centralized national government, long the hallmark of Old World monarchies. As a result, “[t]he powers delegated by the ... Constitution to the federal government, are few and defined,” while “[tjhose which are to remain in the State governments are numerous and indefinite.” The Federalist No. 45 (James Madison). Close to the people, state governments would protect their liberties.
But the experience of the nascent Republic, divided by slavery, taught that states too could threaten individual liberty. So after the Civil War, the Reconstruction Amendments were added to the Constitution to limit state power. Adopted in 1865, the Thirteenth Amendment prohibited involuntary servitude. Adopted three years later, the Fourteenth Amendment prohibited any state from “depriving] any person of life, liberty, or property, without due process of law” or “deny[ing] to any person within its jurisdiction the equal protection of the laws,” and granted Congress “power to enforce” its provisions “by appropriate legislation.” U.S. Const, amend. XIV. Finally, the Fifteenth Amendment declared that “[t]he right of citizens ... to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude” and vested Congress with “power to enforce this article by appropriate legislation.” U.S. Const, amend. XV.
Following Reconstruction, however, “the blight of racial discrimination in voting ... infected the electoral process in parts of our country for nearly a century.” South Carolina v. Katzenbach,
The courts and Congress eventually responded. The Supreme Court struck
Unlike prior legislation, the 1965 Act combined a permanent, case-by-case enforcement mechanism with a set of more stringent, temporary remedies designed to target those areas of the country where racial discrimination in voting was concentrated. Section 2, the Act’s main permanent provision, forbids any “standard, practice, or procedure” that “results in a denial or abridgment of the right of any citizen of the United States to vote on account of race or color.” 42 U.S.C. § 1973(a). Applicable nationwide, section 2 enables individuals to bring suit against any state or jurisdiction to challenge voting practices that have a discriminatory purpose or result. See Thornburg v. Gingles,
Reaching beyond case-by-ease litigation and applying only in certain “covered jurisdictions,” section 5—the focus of this litigation—“prescribes remedies ... which go into effect without any need for prior adjudication.” Katzenbach,
Prior to section 5’s enactment, states could stay ahead of plaintiffs and courts “ ‘by passing new discriminatory voting laws as soon as the old ones had been struck down.’ ” Beer v. United States,
Section 4(b) contains a formula that, as originally enacted, applied section 5’s preclearance requirements to any state or political subdivision of a state that “maintained a voting test or device as of November 1, 1964, and had less than 50% voter registration or turnout in the 1964 presidential election.” Shelby Cnty.,
Because section 4(b)’s formula could be both over- and underinclusive, Congress incorporated two procedures for adjusting coverage over time. First, as it existed in 1965, section 4(a) allowed jurisdictions to earn exemption from coverage by obtaining from a three-judge district court a declaratory judgment that in the previous five years (i.e., before they became subject to the Act) they had used no test or device “for the purpose or with the effect of denying or abridging the right to vote on account of race or color.” 1965 Act § 4(a). This “bailout” provision, as subsequently amended, addresses potential overinclusiveness, allowing jurisdictions with clean records to terminate their section 5 preclearance obligations. Second, section 3(c) authorizes federal courts to require preclearance by any non-covered state or political subdivision found to have violated the Fourteenth or Fifteenth Amendments. 42 U.S.C. § 1973a(e). Specifically, courts presiding over voting discrimination suits may “retain jurisdiction for such period as [they] may deem appropriate” and order that during that time no voting change take effect unless either approved by the court or unopposed by the Attorney General. Id. This judicial “bail-in” provision addresses the formula’s potential underinclusiveness.
As originally enacted in 1965, section 5 was to remain in effect for five years. In South Carolina v. Katzenbach, the Supreme Court sustained the constitutionality of section 5, holding that its provisions “are a valid means for carrying out the commands of the Fifteenth Amendment.”
Significantly for the issue before us, the 1982 version of the Voting Rights Act made bailout substantially more permissive. Prior to 1982, bailout was extremely limited: no jurisdiction could bail out if it had used discriminatory voting tests or practices when it first became subject, to section 5, even if it had since eliminated those practices. Shelby Cnty.,
Setting the stage for this litigation, Congress extended the Voting Rights Act for another twenty-five years in 2006. See Fannie Lou Hamer, Rosa Parks, and Coretta Scott King Voting Rights Act Reauthorization and Amendments Act of 2006, Pub.L. No. 109-246, 120 Stat. 577 (“2006 Act”). In doing so, it acted on the basis of a legislative record “over 15,000 pages in length, and includ[ing] statistics, findings by courts and the Justice Department, and first-hand accounts of discrimination.” Shelby Cnty.,
The 2006 Act’s constitutionality was immediately challenged by “a small utility district” subject to its provisions. See Nw. Austin,
II.
Shelby County filed suit in the U.S. District Court for the District of Columbia, seeking both a declaratory judgment that
Addressing these questions in a thorough opinion, the district court upheld the constitutionality of the challenged provisions and granted summary judgment for the Attorney General. After reviewing the extensive legislative record and the arguments made by Shelby County, the Attorney General, and a group of defendant-intervenors, the district court concluded that “Section 5 remains a ‘congruent and proportional remedy’ to the 21st century problem of voting discrimination in covered jurisdictions.” Id. at 428. Responding to the Supreme Court’s concerns in Northwest Austin, the district court found the record evidence of contemporary discrimination in covered jurisdictions “plainly adequate to justify section 5’s strong remedial and preventative measures,” id. at 492 (internal quotation marks omitted), and to support Congress’s predictive judgment that failure to reauthorize section 5 “‘would leave minority citizens with the inadequate remedy of a Section 2 action,’” id. at 498 (quoting H.R.Rep. No. 109-478, at 57 (2006)). This evidence consisted of thousands of pages of testimony, reports, and data regarding racial disparities in voter registration, voter turnout, and electoral success; the nature and number of section 5 objections; judicial preclearance suits and section 5 enforcement actions; successful section 2 litigation; the use of “more information requests” and federal election observers; racially polarized voting; and section 5’s deterrent effect. Id. at 465-66.
As to section 4(b), the district court acknowledged that the legislative record “primarily focused on the persistence of voting discrimination in covered jurisdictions — rather than on the comparative levels of voting discrimination in covered and non-covered jurisdictions.” Id. at 507. Nonetheless, the district court pointed to “several significant pieces of evidence suggesting that the 21st century problem of voting discrimination remains more prevalent in those jurisdictions that have historically been subject to the preclearance requirement” — including the disproportionate number of successful section 2 suits in covered jurisdictions and the “continued prevalence of voting discrimination in covered jurisdictions notwithstanding the considerable deterrent effect of Section 5.” Id. at 506-07. Thus, although observing that Congress’s reauthorization “ensured that Section 4(b) would continue to focus on those jurisdictions with the worst historical records of voting discrimination,” id. at 506, the district court found this continued focus justified by current evidence that discrimination remained concentrated in those jurisdictions. See id. (explaining that Congress did not renew the coverage formula to punish past sins, but rather because it found “substantial evidence of contemporary voting discrimination by the very same jurisdictions that had histories of unconstitutional conduct”). Finally, the district court emphasized that Congress had based reauthorization not on “a pеr
On appeal, Shelby County reiterates its argument that, given the federalism costs section 5 imposes, the provision can be justified only by contemporary evidence of the kind of “‘unremitting and ingenious defiance’ ” that existed when the Voting Rights Act was originally passed in 1965. Appellant’s Br. 8 (quoting Katzenbach,
III.
Northwest Austin sets the course for our analysis, directing us to conduct two principal inquiries. First, emphasizing that section 5 “authorizes federal intrusion into sensitive areas of state and local policymaking that imposes substantial federalism costs,” the Court made clear that “[p]ast success alone ... is not adequate justification to retain the preclearance requirements.”
Second, the Act, through section 4(b)’s coverage formula, “differentiates between the States, despite our historic tradition that all the States enjoy equal sovereignty.” Id. (internal quotation marks omitted). And while equal sovereignty “ ‘does not bar ... remedies for local evils,’ ” id. (omission in original) (quoting Katzenbach,
Before addressing Northwest Austin’s two questions, we must determine the appropriate standard of review. As the Supreme Court noted, the standard applied to legislation enacted pursuant to Congress’s Fifteenth Amendment power remains unsettled. See id. at 2512-13 (noting, but declining to resolve the parties’ dispute over the appropriate standard of review). Reflecting this uncertainty, Shelby County argues that the “congruence and proportionality” standard for Fourteenth Amendment legislation applies, see City of Boerne,
Of course, this does not mean that the Supreme Court’s prior decisions upholding the Voting Rights Act are no longer relevant. Quite to the contrary, Katzenbach and City of Rome tell us a great deal about “[t]he evil that § 5 is meant to address,” Nw. Austin,
We can likewise seek guidance from the Court’s Fourteenth Amendment decisions applying the congruent and proportional standard to other legislation. In those cases, the Court made clear that the record compiled by Congress must contain evidence of state “conduct transgressing the Fourteenth Amendment’s substantive provisions,” Coleman v. Court of Appeals of Md., — U.S. -,
We read this case law with two important qualifications. First, we deal here with racial discrimination in voting, one of the gravest evils that Congress can seek to redress. See Yick Wo v. Hopkins,
Second, although the federalism costs imposed by the statutes at issue in Hibbs and Lane (abrogating sovereign immunity to allow suits against states for money damages) are no doubt substantial, the federalism costs imposed by section 5 are a great deal more significant. To be sure, in most cases the preclearance process is “routine” and “efficient ],” resulting in prompt approval by the Attorney General and rarely if ever delaying elections. See Reauthorizing the Voting Rights Act’s Temporary Provisions: Policy Perspectives and Views from the Field: Hearing Before the Subcomm. on the Constitution, Civil Rights and Property Rights of the S. Comm, on the Judiciary, 109th Cong. 312-13 (2006) (testimony of Donald M. Wright, North Carolina State Board of Elections) (stating that most preclearance submissions “take only a few minutes to prepare” and that the Justice Department cooperates with jurisdictions to ensure that “preclearance issue[s] d[o] not delay an election”). But section 5 sweeps broadly, requiring preclearance of every voting change no matter how minor. Section 5 also places the burden on covered jurisdictions to demonstrate to the Attorney General or a three-judge district court here in Washington that the proposed law is not discriminatory. Given these significant burdens, in order to determine whether section 5 remains congruent and proportional we are obligated to undertake a review of the record more searching than the Supreme Court’s review in Hibbs and Lane.
Although our examination of the record will be probing, we remain bound by fundamental principles of judicial restraint. Time and time again the Supreme Court has emphasized that Congress’s laws are entitled to a “presumption of validity.” City of Boerne,
A.
Guided by these principles, we begin with Northwest Austin’s first question: Are the current burdens imposed by section 5 “justified by current needs”?
But Congress found that this progress did not tell the whole story. It documented “continued registration and turnout disparities” in both Virginia and South Carolina. Id. at 25. Virginia, in particular, “remain[ed] an outlier,” S.Rep. No. 109-295, at 11 (2006): although 71.6 percent of white, non-Hispanic voting age residents registered to vote in 2004, only 57.4 percent of black voting age residents registered, a 14.2-point difference. U.S. Census Bureau, Reported Voting and Registration of the Total Voting-Age Population, at tbl.4a, available at http://www. census.gov/hhes/www/socdemo/voting/ publications/p20/2004/tables.html (last visited May 9, 2012). Also, although the number of African Americans holding elected office had increased significantly, they continued to face barriers to election for statewide positions. Congress found that not one African American had yet been elected to statewide office in Mississippi, Louisiana, or South Carolina. In other covered states, “ ‘often it is only after blacks have been first appointed to a vacancy that they are able to win statewide office as incumbents.’ ” H.R.Rep. No. 109-478, at 33 (quoting Nat’l Comm’n on the Voting Rights Act, Protecting Minority Voters: The Voting Rights Act at Work 1982-2005, at 38 (2006) (“Nat’l Comm’n Report”)).
Congress considered other types of evidence that, in its judgment, “show[ed] that attempts to discriminate persist and evolve, such that Section 5 is still needed to protect minority voters in the future.” Id. at 21. It heard accounts of specific instances of racial discrimination in voting. It heard analysis and opinions by experts on all sides of the issue. It considered, among other things, six distinct categories
Before delving into the legislative record ourselves, we consider two arguments raised by Shelby County that, if meritorious, would significantly affect how we evaluate that record.
First, Shelby County argues that section 5 can be sustained only on the basis of current evidence of “a widespread pattern of electoral gamesmanship showing systematic resistance to the Fifteenth Amendment.” Appellant’s Br. 23. According to the County, the preclearance remedy may qualify as congruent and proportional only “when it addresses a coordinated campaign of discrimination intended to circumvent the remedial effects of direct enforcement of Fifteenth Amendment voting rights.” Id. at 7. We disagree. For one thing, how could we demand evidence of gamesmanship of the sort present at the time of Katzenbach given that section 5 preclearance makes such tactics virtually impossible? Equally important, Shelby County’s argument rests on a misreading of Katzenbach. Although the Court did describe the situation in 1965 as one of “unremitting and ingenious defiance of the Constitution,” Katzenbach,
This emphasis on the inadequacy of case-by-case litigation makes sense: if section 2 litigation is adequate
Second, Shelby County urges us to disregard much of the evidence Congress considered because it involves “vote dilution, going to the weight of the vote once cast, not access to the ballot.” Appellant’s Br. 26. Specifically, the County faults Congress for relying on selective annexations, certain redistricting techniques, at-large elections, and other practices that do not prevent minorities from voting but instead “dilute minority voting strength,” 2006 Act § 2(b)(4)(A). According to the County, because the Supreme Court has “never held that vote dilution violates the Fifteenth Amendment,” Bossier II,
It is true that neither the Supreme Court nor this court has ever held that intentional vote dilution violates the Fifteenth Amendment. But the Fourteenth Amendment prohibits vote dilution intended “invidiously to minimize or cancel out the voting potential of racial or ethnic minorities.” City of Mobile v. Bolden,
Consideration of this evidence is especially important given that so-called “second generation” tactics like intentional vote dilution are in fact decades-old forms of gamesmanship. That is, “as African Americans made progress in abolishing some of the devices whites had used to prevent them from voting,” both in thе late nineteenth century and again in the 1950s and 1960s, “[ojfficials responded by adopting new measures to minimize the impact of black reenfranchisement.” Voting Rights Act: Evidence of Continued Need: Hearing Before the Subcomm. on the Constitution of the H. Comm, on the Judiciary, 109th Cong. 141-43 (2006) (“Evidence of Continued Need ”). These measures— “well-known” tactics such as “ ‘packing]’ ” minorities into a single district, spreading minority voters thinly among several districts, annexing predominately white suburbs, and so on — were prevalent “forms of vote dilution” then, and Congress determined that these persist today. Id. Specifically, Congress found that while “first generation barriers” — flagrant attempts to deny access to the polls that were pervasive at the time of Katzenbach — have diminished, “second generation barriers” such as vote dilution have been “constructed to prevent minority voters from fully participating in the electoral process.” 2006 Act § 2(b)(2) (congressional findings). Although such methods may be “more subtle than the visible methods used in 1965,” Congress concluded that their “effect and results are the same, namely a diminishing of the minority community’s ability to fully participate in the electoral process and to elect their preferred candidates of choice.” H.R.Rep. No. 109^178, at 6.
Having resolved these threshold issues, we return to the basic question: Does the legislative record contain sufficient probative evidence from which Congress could reasonably conclude that racial discrimination in voting in covered jurisdictions is so serious and pervasive that section 2 litigation remains an inadequate remedy? Reviewing the record ourselves and focusing on the evidence most probative of ongoing constitutional violations, we believe it does.
To begin with, the record contains numerous “examples of modern instances” of racial discrimination in voting, City of Boerne,
• Kilmichael, Mississippi’s abrupt 2001 decision to cancel an election when “an unprecedented number” of African Americans ran for office, H.R.Rep. No. 109^178, at 36-37 (internal quotation marks omitted);
• Webster County, Georgia’s 1998 proposal to reduce the black population in three of the education board’s five single-member districts after the school district elected a majority black school board for the first time, Voting Rights Act: Section 5 of the Act — History, Scope, and Purpose: Hearing Before Subcomm. on the Constitution of the House Judiciary Comm., 109th Cong. 830-31 (2006) (“History, Scope, and Purpose ”);
• Mississippi’s 1995 attempt to evade preclearance and revive a dual registration system “initially enacted in 1892 to disenfranchise Black voters” and previously struck down by a federal court, H.R.Rep. No. 109-478, at 39;
• Washington Parish, Louisiana’s 1993 attempt to reduce the impact of a majority-African American district by “immediately creating] a new at-large seat to ensure that no white incumbent would lose his seat,” id. at 38;
• Waller County, Texas’s 2004 attempt to reduce early voting at polling places near a historically black university and its threats to prosecute students for*866 “illegal voting,” after two black students announced their intent to run for office, Evidence of Continued Need 185-86.
The legislative record also contains examples of overt hostility to black voting power by those who control the electoral process. In Mississippi, fоr instance, state legislators opposed an early 1990s redistricting plan that would have increased the number of black majority districts, referring to the plan publicly as the “black plan” and privately as the “nigger plan,” Modem Enforcement of the Voting Rights Act: Hearing Before the S. Comm, on the Judiciary, 109th Cong. 22 (2006) (“Modem Enforcement ”) (internal quotation marks omitted); see also S.Rep. No. 109-295, at 14. In Georgia, the state House Reapportionment Committee Chairman “told his colleagues on numerous occasions, T don’t want to draw nigger districts,’ ” H.R.Rep. No. 109-478, at 67 (quoting Busbee v. Smith,
In addition to these examples of flagrant racial discrimination, several categories of evidence in the record support Congress’s conclusion that intentional racial discrimination in voting remains so serious and widespread in covered jurisdictions that section 5 preclearance is still needed. We explore each in turn.
First, Congress documented hundreds of instances in which the Attorney General, acting pursuant to section 5, objected to proposed voting changes that he found would have a discriminatory purpose or effect. Significantly, Congress found that the absolute number of objections has not declined since the 1982 reauthorization: the Attorney General interposed at least 626 objections during the twenty-two years from 1982 to 2004 (an average of 28.5 each year), compared to 490 interposed during the seventeen years from 1965 to 1982 (an average of 28.8 each year). Evidence of Continued Need 172; see also S.Rep. No. 109-295, at 13-14 (finding 754 objections between 1982 and the first half of 2006).
Formal objections were not the only way the Attorney General blocked potentially discriminatory changes under section 5. Congress found that between 1990 and 2005, “more information requests” (MIRs) prompted covered jurisdictions to withdraw or modify over 800 proposed voting changes. Evidence of Continued Need 2553, 2565; H.R.Rep. No. 109-478, at 40-41. Although MIRs take no position on the merits of a preclearance request, Congress had evidence indicating that the Attorney General sometimes uses them to “send signals to a submitting jurisdiction about the assessment of their proposed voting change” and to “promot[e] compliance by covered jurisdictions.” Evidence of Continued Need 2541. Congress found that because “[t]he actions taken by a jurisdiction [in response to an MIR] are often illustrative of [its] motives,” the high number of withdrawals and modifications made in response to MIRs constitutes additional evidence of “[e]fforts to discriminate over the past 25 years.” H.R.Rep. No. 109-478, at 40-41.
Shelby County contends that section 5 objections and MIRs, however numerous, “do[ ] not signal intentional voting discrimination” because they represent only the Attorney General’s opinion and need not be based on discriminatory intent. Appellant’s Br. 30-31; see also id. at 32. Underlying this argument is a fundamental principle with which we agree: to sustain section 5, the record must contain “evidence of a pattern of constitutional violations,” Hibbs,
Shelby County also points out that the percentage of proposed voting changes blocked by Attorney General objections has steadily declined — from a height of 4.06 percent (1968-1972) to 0.44 percent (1978-1982) to 0.17 percent (1993-1997) and to 0.05 percent (1998-2002). An Introduction to the Expiring Provisions of the Voting Rights Act and Legal Issues Relating to Reauthorization: Hearing Before the S. Comm, on the Judiciary, 109th Cong. 219 (2006) (“Introduction to the Expiring Provisions”). But the most dramatic decline in the objection rate — which, as the district court observed, “has always been low,” Shelby Cnty.,
As for MIRs, we agree with Shelby County that they are less probative of discrimination than objections. An MIR does not represent a judgment on the merits, and submitting jurisdictions might have many reasons for modifying or withdrawing a proposed change in response to one. But the record contains evidence from which Congress could “reasonably] infer[ ],” id. (internal quotation marks omitted), that at least some withdrawals or modifications reflect the submitting jurisdiction’s acknowledgement that the proposed change was discriminatory. See Evidence of Continued Need 178 (stating that a jurisdiction’s decision to withdraw a proposed changes in response to an MIR “is frequently a tacit admission of one or more proposed discriminatory changes”); id. at 809-10 (explaining that after the Attorney General requested more information on a redistricting plan containing only two majority-black districts, the jurisdiction withdrew the proposal and ultimately adopted a redistricting plan with three majority-black districts); H.R.Rep. No. 109-478, at 41 (explaining that Monterey County’s proposal to reduce the number of polling places received preclearance only after the County withdrew five polling place consolidations in response to an MIR). Given this, Congress reasonably concluded that some of the 800-plus withdrawals and modifications in response to MIRs “reflect! ]” “[e]fforts to discriminate over the past 25 years.” H.R.Rep. No. 109-478, at 40.
The second category of evidence relied on by Congress, successful section 2 litigation, reinforces the pattern of discrimination revealed by objections and MIRs. The record shows that between 1982 and 2005, minority plaintiffs obtained favorable outcomes in some 653 section 2 suits filed in covered jurisdictions, providing relief from discriminatory voting practices in at least 825 counties. Evidence of Continued Need 208, 251. Shelby County faults the district court for relying on evidence of successful section 2 litigation “even though ‘a violation of Section 2 does not require a showing of unconstitutional discriminatory intent.’ ” Appellant’s Br. 34 (quoting Shelby Cnty.,
Third, Congress relied on evidence of “the tens of thousands of Federal observers that have been dispatched to observe elections in covered jurisdictions.” 2006 Act § 2(b)(5). Specifically, 300 to 600 observers were dispatched annually between 1984 and 2000, H.R.Rep. No. 109-478, at 44, amounting to 622 separate dispatches (most or all involving multiple observers) to covered jurisdictions, Evidence of Continued Need 180-82; see also 42 U.S.C. § 1973f(a)(2) (authorizing dispatch of federal observers to covered jurisdictions based upon either “written meritorious complaints from residents, elected officials, or civic participation organizations,” or the Attorney General’s judgment that observers are necessary to enforce the Fourteenth or Fifteenth Amendment). Of these, sixty-six percent were concentrated in five of the six states originally covered by section 5 — Alabama, Georgia, Louisiana, Mississippi, and South Carolina. H.R.Rep. No. 109-478, at 44. In some instances, monitoring by federal observers “bec[ame] the foundation of Department of Justice enforcement efforts,” as in Conecuh County, Alabama, and Johnson County, Georgia, where reports by federal observers enabled the federal government to bring suit against county officials for discriminatory conduct in polling locations, ultimately resulting in consent decrees. Id.; see also Voting Rights Act: Sections 6 and 8 — The Federal Examiner and Observer Program: Hearing Before the Sub-comm. on the Constitution of the H. Comm, on the Judiciary, 109th Cong. 42-43 (2006) (“Sections 6 and 8 ”). As Congress saw it, this continued need for federal observers in covered jurisdictions is indicative of discrimination and “demonstrates that the discriminatory conduct experienced by minority voters is not solely limited to tactics to dilute the voting strength of minorities but continues to include tactics to disenfranchise, such as harassment and intimidation inside polling locations.” H.R.Rep. No. 109-478, at 44.
Shelby County insists that the Attorney General’s decision to dispatch federal observers “indicates only that ... there might be conduct with the effect of disenfranchising minority citizens, which might or might not be purposeful discrimination.” Appellant’s Br. 35-36. As the district court explained, however, “observers
Fourth, Congress found evidence of continued discrimination in two types of preclearance-related lawsuits. Examining the first of these — actions brought to enforce section 5’s preclearance requirement— Congress noted that “many defiant covered jurisdictions and State and local officials continue to enact and enforce changes to voting procedures without the Federal Government’s knowledge.” H.R.Rep. No. 109-478, at 41. Between 1982 and 2004, at least 105 successful section 5 enforcement actions were brought against such jurisdictions. Evidence of Continued Need 250. Shelby County believes that successful section 5 enforcement actions are “not reliable evidence of intentional voting discrimination” because “[t]he most that a section 5 enforcement action can establish ... is that a voting change — and quite possibly a nondiscriminatory voting change — was not properly submitted for preclearance.” Appellant’s Br. 34. But the legislative record does contain evidence that at least some of the 105 successful section 5 enforcement suits were initiated in response to attempts by covered jurisdictions to implement purposefully discriminatory laws without federal oversight. See Shelby Cnty.,
In addition to section 5 enforcement suits, Congress found evidence of continued discrimination in “the number of requests for declaratory judgments [for preclearance] denied by the United States District Court for the District of Columbia.” 2006 Act § 2(b)(4)(B). The number of unsuccessful judicial preclearance actions appears to have remained roughly constant since 1966: twenty-five requests were denied or withdrawn between 1982
Finally, and bolstering its conclusion that section 5 remains necessary, Congress “f[ound] that the existence of Section 5 deterred covered jurisdictions from even attempting to enact discriminatory voting changes.” H.R.Rep. No. 109-478, at 24. In Congress’s view, “Section 5’s strong deterrent effect” and “the number of voting changes that have never gone forward as a result of [that effect]” are “[a]s important as the number of objections that have been interposed to protect minority voters against discriminatory changes” that had actually been proposed. Id. As Congress explained, “ ‘[o]nee officials in covered jurisdictions become aware of the logic of preclearance, they tend to understand that submitting discriminatory changes is a waste of taxpayer time and money and interferes with their own timetables, because the chances are good that an objection will result.’ ” Id. (quoting Nat’l Comm’n Report 57). For this reason, the mere existence of section 5 “ ‘encourage[s] the legislature to ensure that any voting changes would not have a discriminatory effect on minority voters, and that it would not become embroiled in the preclearance process.’ ” Id. (quoting Laughlin McDonald, The Case for Extending and Amending the Voting Rights Act: Voting Rights Litigation, 1982-2006: A Report of the Voting Rights Project of the American Civil Liberties Union 15 (2006)). Congress considered testimony that section 5 has had just this effect on state and local redistricting processes. See H.R.Rep. No. 109-478, at 24 (describing section 5’s “critical” influence on the Georgia legislature’s redistricting process, which culminated in a plan that was precleared with no objection by the Attorney General (internal quotation marks omitted)); Evidence of Continued Need 362-63 (explaining how concerns about obtaining preclearance prevented Fredericksburg, Virginia, from eliminating an African American majority district). In other words, Congress had “some reason to believe that without [section 5’s] deterrent effect on potential misconduct,” the evidence of continued discrimination in covered jurisdictions “might be considerably worse.” S.Rep. No. 109-295, at 11.
Shelby County argues that Congress’s finding of deterrence reflects “ ‘outdated assumptions about racial attitudes in the covered jurisdictions’ ” that we should not “indulge[].” Appellant’s Br. 38 (quoting Nw. Austin,
This brings us, then, to Congress’s ultimate conclusion. After considering the entire record, including
• 626 Attorney General objections that blocked discriminatory voting changes;
• 653 successful section 2 cases;
• over 800 proposed voting changes withdrawn or modified in response to MIRs;
• tens of thousands of observers sent to covered jurisdictions;
• 105 successful section 5 enforcement actions;
• 25 unsuccessful judicial preclearance actions;
• and section 5’s strong deterrent effect, i.e., “the number of voting changes that have never gone forward as a result of Section 5,” H.R.Rep. No. 109-478, at 24;
Congress found that serious and widespread intentional discrimination persisted in covered jurisdictions and that “case-by-case enforcement alone ... would leave minority citizens with [an] inadequate remedy.” Id. at 57. In reaching this conclusion, Congress considered evidence that section 2 claims involve “intensely complex litigation that is both costly and time-consuming.” Modem Enforcement 96; see also Introduction to the Expiring Provisions 141 (describing a Federal Judicial Center study finding that voting rights cases require nearly four times more work than an average district court case and rank as the fifth most work-intensive of the sixty-three types of cases analyzed); City of Boerne, 521 U.S at 526,
According to Shelby County, “[evaluation of the probative evidence shows there is no longer systematic resistance to the Fifteenth Amendment in the covered jurisdictions that cannot be solved through case-by-case litigation.” Appellant’s Br. 38. Congress, however, reached a different conclusion, and as explained above, the County has offered no basis for thinking that Congress’s judgment is either unreasonable or unsupported by probative evidence. The dissent accuses us of “over-
The point at which section 5’s strong medicine becomes unnecessary and therefore no longer congruent and proportional turns on several critical considerations, including the pervasiveness of serious racial discrimination in voting in covered jurisdictions; the continued need for section 5’s deterrent and blocking effect; and the adequacy of section 2 litigation. These are quintessential^ legislative judgments, and Congress, after assembling and analyzing an extensive record, made its decision: section 5’s work is not yet done. Insofar as Congress’s conclusions rest on predictive judgments, we must, contrary to the dissent’s approach, apply a standard of review even “more deferential than we accord to judgments of an administrative agency.” Turner Broad.,
B.
Having concluded that section 5’s “current burdens” are indeed justified by “current needs,” we proceed to the second Northwest Austin inquiry: whether the record supports the requisite “showing that a statute’s disparate geographic coverage is sufficiently related to the problem that it targets.”
Before examining the record ourselves, we emphasize that the Act’s disparate geographic coverage — and its relation to the problem of voting discrimination' — depends not only on section 4(b)’s formula, but on the statute as a whole, including its mechanisms for bail-in and bailout. Bailout func
The most concrete evidence comparing covered and non-covered jurisdictions in the legislative record comes from a study of section 2 cases published on Westlaw or Lexis between 1982 and 2004. Impact and Effectiveness 964-1124 (report by Ellen Katz et al.). Known as the Katz study, it reached two key findings suggesting that racial discrimination in voting remains “concentrated in the jurisdictions singled out for preclearance,” Nw. Austin,
Second, the study found higher success rates in covered jurisdictions than in non-covered jurisdictions. Specifically, 40.5 percent of published section 2 decisions in covered jurisdictions resulted in favorable outcomes for plaintiffs, compared to only 30 percent in non-covered jurisdictions. Impact and Effectiveness 974.
The difference between covered and non-covered jurisdictions becomes even more pronounced when unpublished section 2 decisions — primarily court-approved settlements — are taken into account. As the Katz study noted, published section 2 lawsuits “represent only a portion of the section 2 claims filed or decided since 1982” since many claims were settled or otherwise resolved without a published opinion. Id. at 974. According to data compiled by the National Commission on the Voting Rights Act and Justice Department historian Peyton McCrary, there have been at least 686 unpublished successful section 2 cases since 1982, amounting to a total of some 800 published and unpublished cases with favorable outcomes for minority voters. See Decl. of Dr. Peyton McCrary 13 (“McCrary Decl.”). Of these, approximately 81 percent were filed in covered jurisdictions. Id. When this data is broken down state-by-state, separately identifying covered and non-covered portions of partially covered states, the concentration of successful section 2 cases in the covered jurisdictions is striking. Of the eight states with the highest number of successful published and unpublished section 2 cases per million residents — Alabama, Mississippi, Arkansas, Texas, South Carolina, Georgia, and the covered portions of South Dakota and North Carolina — all but one are covered. See Supp. Decl. of Dr. Peyton McCrary 3-7; U.S. Dep’t of Justice, Section 5 Covered Jurisdictions, http://www.justice.gov/crt/about/ vot/sec_5/covered.php (last visited May 9, 2012); U.S. Census Bureau, Annual Estimates of the Population for the United States and States, and for Puerto Rico: April 1, 2000 to July 1, 2004, available at http://www.census.gov/popest/data/ historical/2000s/vintage_2004/state.html (last visited May 9, 2012); U.S. Census Bureau, Annual Estimates of the Resident Population for Counties: April 1, 2000 to July 1, 2004, available at http://www. census.gov/popest/data/counties/totals/ 2004/CO-EST2004-01.html (last visited
Shelby County objects to the use of unpublished section 2 data, pointing out that although Congress considered the National Commission’s analysis of unpublished cases in covered jurisdictions, the legislative record does not contain McCrary’s analysis of unpublished cases in non-covered jurisdictions. We agree that there are reasons to approach this data with caution: McCrary prepared his analysis after the 2006 reauthorization, and because his data regarding unpublished cases in non-covered jurisdictions was collected separately from the data on unpublished cases in covered jurisdictions, we cannot be certain that the data collection methods
The section 2 data, moreover, does not tell the whole story. As explained above, Congress found that section 5, which operates only in covered jurisdictions, deters or blocks many discriminatory voting laws before they can ever take effect and become the target of section 2 litigation. “Section 5’s reach in preventing discrimination is broad. Its strength lies not only in the number of discriminatory voting changes it has thwarted, but can also be measured by the submissions that have been withdrawn from consideration, the submissions that have been altered by jurisdictions in order to comply with the [Voting Rights Act], or in the discriminatory voting changes that have never materialized.” H.R. Rep. No. 109-M78, at 36. Accordingly, if discrimination were evenly distributed throughout thе nation, we would expect to see fewer successful section 2 cases in covered jurisdictions than in non-covered jurisdictions. See Continuing Need 26 (explaining that section 5 “makes the covered jurisdietion[s] much ‘cleaner’ than they would have been without Section 5 coverage”). Yet we see substantially more.
Shelby County makes two main arguments in response to this evidence. First, citing Katzenbach’s finding that the coverage formula was “rational in both practice and theory,”
This argument rests on a misunderstanding of the coverage formula. As the district court explained, the election years that serve as coverage “triggers” under
Of course, Shelby County’s real argument is that the statute fails this test, i.e., that it no longer actually identifies the jurisdictions “uniquely interfering with the right Congress is seeking to proteсt through preclearance.” Appellant’s Br. 62. The County points out that Congress never made a finding that racial discrimination in voting was “concentrated in the jurisdictions singled out for preclearance.” Nw. Austin,
Shelby County’s first point — that Congress failed to make a finding — is easily answered. Congress did not have to. United States v. Lopez,
As explained above, however, this data presents an incomplete picture of covered jurisdictions. When we consider the Katz data in conjunction with other record evidence, the picture looks quite different. For instance, although Georgia had only three successful published section 2 cases between 1982 and 2004, during that time the state had 66 successful unpublished section 2 cases, 83 section 5 objections, and 17 successful section 5 enforcement actions. Evidence of Continued Need 250-51, 272. In addition, between 1990 and 2005, jurisdictions in Georgia withdrew 90 proposed voting changes in response to MIRs. Id. at 2566. South Carolina is similar. Although the state had only 3 successful published section 2 cases, it had 30 successful unpublished section 2 cases, 74 section 5 objections, and 10 successful section 5 enforcement actions, as well as 26 voting changes withdrawn in response to MIRs and 51 changes that could not lawfully be implemented for failure to respond to MIRs. Id. at 250-51, 272, 2566. South Carolina, moreover, is one of the covered states that not only has continued racial disparities in voter registration and turnout, but that has never elected an African American to statewide office. See supra p. 862. Accordingly, even if only a relatively small portion of objections, withdrawn voting changes, and successful section 5 enforcement actions correspond to unconstitutional conduct, and even if there are substantially more successful unpublished section 2 cases in non-covered jurisdictions than the McCrary data reveals, these middle-range covered jurisdictions appear to be engaged in much more unconstitutional discrimination compared to non-covered jurisdictions than the Katz data alone suggests. In fact, the discrepancy between covered and non-covered jurisdictions is likely even greater given that, as Congress found, the mere existence of section 5 deters unconstitutional behavior in the covered jurisdictions. That is, the middle-range covered states appear comparable to some non-covered jurisdictions only because section 5’s deterrent and blocking effect screens out discriminatory laws before section 2 litigation becomes necessary. Had section 5 not been in effect, one would expect significantly more discrimination in North Carolina, South Carolina, Virginia, Texas, and Georgia, all covered by section 5, than in the non-covered states with the worst records. See S.Rep. No. 109-295, at 11 (suggesting that “without the Voting Rights Act’s deterrent effect,” the evidence of discrimination in the covered jurisdictions “might be considerably worse”).
To be sure, the coverage formula’s fit is not perfect. But the fit was hardly perfect in 1965. Accordingly, Katzenbach’s discussion of this issue offers a helpful guide for our current inquiry, particularly when we consider all probative record evidence of recent discrimination — and not just the small subset of section 2 cases relied upon by the dissent, see Dissenting Op. at 898-99. In 1965, the formula covered three states in “which federal courts ha[d] repeatedly found substantial voting discrimination” — Alabama, Louisiana, and Mississippi, Katzenbach,
Critically, moreover, and as noted above, in determining whether section 5 is “sufficiently related to the problem that it targets,” we look not just at the section 4(b) formula, but at the statute as a whole, including its provisions for bail-in and bailout. Bail-in allows jurisdictions not captured by section 4’s coverage formula, but which nonetheless discriminate in voting, to be subjected to section 5 preclearance. Thus, two non-covered states with high numbers of successful published and unpublished section 2 cases — Arkansas and New Mexico — were subjected to partial preclearance under the bail-in provision. See Jeffers,
Bailout plays an even more important role in ensuring that section 5 covers only those jurisdictions with the worst records of racial discrimination in voting. As the Supreme Court explained in City of Boeme, the availability of bailout “reducéis] the possibility of overbreadth” and helps “ensure Congress’ means are proportionate to [its] ends.”
The importance of this significantly liberalized bailout mechanism cannot be overstated. Underlying the debate over the continued need for section 5 is a judgment about when covered jurisdictions— many with very bad historic records of racial discrimination in voting — have changed enough so that case-by-case section 2 litigation is adеquate to protect the right to vote. Bailout embodies Congress’s judgment on this question: jurisdictions originally covered because of their histories of discrimination can escape section 5 preclearance by demonstrating a clean record on voting rights for ten years in a row. See 42 U.S.C. § 1973b(a)(l) (bailout criteria). As the House Report states, “covered status has been and continues to be within the control of the jurisdiction such that those jurisdictions that have a genuinely clean record and want to terminate coverage have the ability to do so.” H.R.Rep. No. 109-478, at 25. Bailout thus helps to ensure that section 5 is “sufficiently related to the problem that it targets,” Nw. Austin,
Shelby County complains that bailout helps only “at the margins,” Appellant’s Br. 53; see also Dissenting Op. at 901, and the dissent emphasizes that only about 1 percent of covered jurisdictions and subjurisdictions have applied for bailout, Dissenting Op. at 901. But absent evidence that there are “clean” jurisdictions that would like to bail out but cannot meet the standards, the low bailout rate tells us nothing about the effectiveness of the bailout provision. See Shelby Cnty.,
C.
We turn, finally, to the dissent’s argument that section 5 “requires a jurisdiction not only to engage in some level of race-conscious decisionmaking, but also on occasion to sacrifice principles aimed at depoliticizing redistricting.” Dissenting Op. at 886; see also Nw. Austin,
The dissent’s thoughtful arguments face a serious obstacle. Shelby County neither challenges the constitutionality of the 2006 amendments or even argues that they increase section 5’s burdens, nor does it argue that section 5 requires covered jurisdictions to undertake impermissible considerations of race. These issues, in other words, are entirely unbriefed, and as we have repeatedly made clear, “appellate courts do not sit as self-directed boards of legal inquiry and research, but essentially as arbiters of legal questions presented and argued by the parties before them.” Carducci v. Regan,
Even were they not forfeited, the dissent’s concerns would not have satisfied the standards for mounting a facial constitutional challenge. Such a challenge, the Supreme Court has made clear, is “the most difficult ... to mount successfully, since the challenger must establish that no set of circumstances exists under which the Act would be valid.” Salerno,
IV.
In Northwest Austin, the Supreme Court signaled that the extraordinary federalism costs imposed by section 5 raise substantial constitutional concerns. As a lower federal court urged to strike this duly enacted law of Congress, we must proceed with great caution, bound as we are by Supreme Court precedent and confined as we must be to resolve only the precise legal question before us: Does the severe remedy of preelearance remain “congruent and proportional”? The legislative record is by no means unambiguous. But Congress drew reasonable conclusions from the extensive evidence it gathered and acted pursuant to the Fourteenth and Fifteenth Amendments, which entrust Congress with ensuring that the right to vote — surely among the most important guarantees of political liberty in the Constitution — is not abridged on account of race. In this context, we owe much deference to the considered judgment of the People’s elected representatives. We affirm.
So ordered.
Dissenting Opinion
dissenting:
Section 5 of the Voting Rights Act imposes rather extraordinary burdens on “covered” jurisdictions — nine states (and every jurisdiction therein), plus a host of jurisdictions scattered through several other states. See Voting Section, U.S. Dep’t of Justice, Section 5 Covered Jurisdictions, http://www.justice.gov/crt/about/vot/sec_5/ covered.php (last visited May 9, 2012) (listing the covered jurisdictions). Unless and until released from coverage (a process discussed below), each of these jurisdictions must seek the Justice Department’s approval for every contemplated change in election procedures, however trivial. See 42 U.S.C. § 1973c. Alternatively, it can seek approval from a three-judge district court in the District of Columbia. See id. Below I’ll address the criteria by which the Department and courts assess these proposals; for now, suffice it to say that the act not only switches the burden of proof to the supplicant jurisdiction, but also applies substantive standards quite different from those governing the rest of the nation.
Section 4(b) of the act states two criteria by which jurisdictions are chosen for this special treatment: whether a jurisdiction had (1) a “test or device” restricting the opportunity to register or vote and (2) a voter registration or turnout rate below 50%. See 42 U.S.C. § 1973b(b). But § 4(b) specifies that the elections for which these two criteria are measured must be ones that took place several decades ago. The freshest, most recent data relate to conditions in November 1972 — 34 years before Congress extended the act for an
Of course sometimes a skilled dart-thrower can hit the bull’s eye throwing a dart backwards over his shoulder. As I will try to show below, Congress hasn’t proven so adeрt. Whether the criteria are viewed in absolute terms (are they adequate in themselves to justify the extraordinary burdens of § 5?) or in relative ones (do they draw a rational line between covered and uncovered jurisdictions?), they seem to me defective. They are not, in my view, “congruent and proportional,” as required by controlling Supreme Court precedent. My colleagues find they are. I dissent.
Although it is only the irrational coverage formula of § 4(b) that I find unconstitutional, it is impossible to assess that formula without first looking at the burdens § 5 imposes on covered jurisdictions. Any answer to the question whether § 4(b) is “sufficiently related to the problem it targets,” Northwest Austin Municipal Utility Dist. No. One v. Holder,
But § 5 requires much more than notice. For covered jurisdictions, it mandates anticipatory review of state legislative or administrative acts, requiring state and local officials to go hat in hand to Justice Department officialdom to seek approval of any and all proposed voting changes. See 42 U.S.C. § 1973c(a). Since its inception, even supporters of the Voting Rights Act have recognized that the preclearance regime was particularly “strong medicine” for a particularly extreme problem. Voting Rights Act: Hearings on H.R. 6400 Before Subcomm. No. 5 of the House Comm, on the Judiciary, 89th Cong. 110 (1965) (statement of Rep. Chelf). When it first upheld the VRA, the Supreme Court recognized it as a “complex scheme of stringent remedies” and § 5 in particular as an “uncommon exercise of congressional power.” South Carolina v. Katzenbach,
A critical aspect of those costs is the shifted burden of proof (a matter I’ll dis
Of course the most critical features of § 5 are the substantive standards it applies to the covered jurisdictions. Whether a proposed voting change can be precleared turns on whether it would have a retrogressive effect on minority voters. See Beer v. United States,
Unfortunately, when Congress passed the 2006 version of the VRA, it not only disregarded but flouted Justice Kennedy’s concern. New subsections (b) and (d) were added to § 5 to overturn Georgia v. Ashcroft, thereby restricting the flexibility of states to experiment with different methods of maintaining (and perhaps even expanding) minority influence. The Georgia Court had prescribed a holistic approach to § 5, instructing courts confronting a proposed voting change “not [to] focus solely on the comparative ability of a minority group to elect a candidate of its choice,”
As amended, the act forecloses this choice. Preclearance now has an exclusive focus — whether the plan diminishes the ability of minorities (always assumed to be a monolith) to “elect their preferred candidates of choice,” irrespective of whether policymakers (including minority ones) decide that a group’s long-term interests might be better served by less concentration — and thus less of the political isolation that concentration spawns. See 42 U.S.C. § 1973c(b); id. § 1973e(d); see also Texas v. United States,
Another 2006 amendment makes the § 5 burden even heavier. Section 5 prohibits preclearance of laws that have the “purpose” of “denying or abridging the right to vote on account of race or color.” 42 U.S.C. § 1973c(a). The Court had interpreted “purpose” to be consistent with § 5’s effects prong, so that the term justified denying preclearance only to changes with a “retrogressive” purpose, rather than changes with either that or a discriminatory purpose. See Reno v. Bossier Parish School Bd.,
The majority correctly notes that Shelby did not argue that either of these amendments is unconstitutional. See Maj. Op. at 883. Neither do I. Appellant does argue however that § 4(b) is unconstitutional, that is, that § 4(b) is not a congruent and proportional response to the problem currently posed by voting discrimination. To answer that question one must necessarily first assess the severity of the consequences of coverage under § 4(b) (i.e., subjection to § 5 as it exists today). See supra at p. 885.
Whether Congress is free to impose § 5 on a select set of jurisdictions also depends in part, of course, on possible shortcomings in the remedy that § 2 provides for the country as a whole. That section creates a right to sue any jurisdiction to stop voting practices that “result[] in a denial or abridgement” of the right to vote “on account of race or color.” 42 U.S.C. § 1973(a). Doubtless the section is less drastic a remedy than § 5 (and thus by some criteria less effective). But it is easy to overstate the inadequacies of § 2, such as cost and the consequences of delay. Compare Maj. Op. at 872. Unlike in most litigation, plaintiffs’ costs for § 2 suits can in effect be assumed by the Department of Justice by its either exercising its authority to bring suit itself, see, e.g., United States v. Blaine County,
Indeed, the ubiquitous availability of § 2 is of course a reminder that § 5 was created for the specific purpose of overcoming state and local resistance to federal anti-discrimination policy. When the Supreme Court first upheld the act in 1966, it found that § 5 was necessary because “case-by-case litigation,” now governed by § 2, was “inadequate to combat the widespread and persistent discrimination in voting.” Katzenbach,
But life in the covered jurisdictions has not congealed in the 48 years since the first triggering election (or the 40 years since the most recent). “[Cjurrent burdens ... must be justified by current needs,” Northwest Austin,
In order for § 4(b) to be congruent and proportional then, the disparity in current evidence of discrimination between the covered and uncovered jurisdictions must be proportionate to the severe differential in treatment imposed by § 5. Put another way, a distinct gap must exist between the current levels of discrimination in the covered and uncovered jurisdictions in order to justify subjecting the former group to § 5’s harsh remedy, even if one might find § 5 appropriate for a subset of that group.
I now turn to assessing the evidence used to justify the § 4(b) coverage formula. The parties have offered no sophisticated statistical analysis of voting discrimination in the covered and uncovered jurisdictions, and what follows does not purport to fill the sophistication gap.
The data considered are drawn from the evidence the parties have cited, as well as the more general set compiled by Congress, especially data the Supreme Court has previously found important. For instance, when it upheld the preclearance regime in 1980, the Supreme Court noted both the “significant disparity” that still existed between African-American and white voter registration rates, and the fact that the number of black elected officials in covered jurisdictions “fell far short of being representative” of the number of African-Americans residing in covered jurisdictions. City of Rome v. United States,
Voter Registration and Turnout
Section 4(b)’s coverage formula is keyed to two indicators of voter access: voter turnout and the use of tests and devices in voter registration. See 42 U.S.C. § 1973b(b). In 1966 the Supreme Court characterized the VRA as “specifically designed” to remedy the “misuse of tests and devices” that characterized the “widespread and persistent discrimination” at the time. Katzenbach,
Figures I and II
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There appears to be no positive correlation between inclusion in § 4(b)’s coverage formula and low black registration or turnout. Quite the opposite. To the extent that any correlation exists, it appears to be negative — condemnation under § 4(b) is a marker of higher black registration and turnout. Most of the worst offenders— states where in 2004 whites turned out or were registered in significantly higher proportion than African-Americans — are not covered. These include, for example, the three worst — Massachusetts, Washington, and Colorado. And in Alabama and Mississippi, often thought of as two of the worst offenders, African-Amencans turned out in greater proportion than whites.
Black Elected Officials
The other metric that the Rome Court considered was the number of black elected officials. Figure III uses U.S. Census Bureau data from 2000 and a state-by-state breakdown of such officials from that same year and displays the number of African-Americans who had been elected to office as a proportion of their share of the total CVAP in a given state. See David A Bostis, Joint Ctr. for Pol. & Econ. Studies, Black Elected Officials: A Statis
[[Image here]]
Again the results are the inverse of § 4(b)’s presuppositions. Covered jurisdictions have far more black officeholders as a proportion of the black population than do uncovered ones. Of the ten states with the highest proportion of black elected officials relative to population, eight are covered states, with the top five all being fully covered states (Virginia, Louisiana, South Carolina, Mississippi, and Alabama). Nor can the poor scores achieved by some uncovered states be chalked up to small black populations. Illinois, Missouri, Delaware and Michigan, where African-Ameri
In upholding § 5, the district court acknowledged that the number of black elected officials had increased but found the nature of the positions insufficient, pointing particularly to the nationwide disparity between the black proportion of the population (11.9%) and the number of black officials elected to statewide office (5%). Shelby County v. Holder,
Federal Observers
Section 8 of the VRA authorizes the Department to send federal observers to covered jurisdictions in order to enter polling places and monitor elections if “necessary to enforce the guarantees of the 14th or 15th amendment.” 42 U.S.C. § 1973f(a)(2)(B). Additionally, § 3(a) permits a court to authorize the appointment of federal observers in any political subdivision, whether covered or uncovered, if the court finds it “appropriate to enforce the voting guarantees of the fourteenth or fifteenth amendment.” Id. § 1973a(a); see also id. § 1973f(a)(l). In an extensive report, the National Commission on the Voting Rights Act mapped the number of occasions these observers had been assigned to states in the 22-year period between the prior VRA authorization (1982) and the 2004 election. See Nat’l Comm’n on the Voting Rights Act, Protecting Minority Voters: The Voting Rights Act at Work 1982-2005, at 61 & Map 10B (Feb. 2006) (“Nat’l Comm’n Report”). Figure IV shows the state-by-state distribution of observer coverages per million minority residents, where the minority population is calculated by subtracting the non-Hispanic white population from the total 2004 population, as estimated by the U.S. Census Bureau. See U.S. Census Bureau, Annual Estimates of the Population for Race Alone and Hispanic or Latino Origin for the United States and States: July 1, 2004, available at http://www.census.gov/popest/ data/historical/2000s/vintage_2004/state. html.
Even if we were to assume the National Commission’s figures to be complete, and thus that every federal observer between 1982 and 2004 was sent to a jurisdiction already covered under some part of the VRA (either § 5 or § 203), this suggests another limitation on the data’s relevance: The same Department that administers § 5 preclearance also decides where to send observers, so it is unsurprising that the covered states, which are already in the Department’s sights, would also receive the most observers. Finally, § 3 forces the Justice Department to go to court for authorization to assign observers to uncovered areas, while § 8 imposes no such hurdle for the covered ones, undermining further the data’s already questionable value.
Successful Section 2 Lawsuits
The final metric for which comparative data exist is reported, successful § 2 lawsuits. Appellees point us to a comprehensive list of reported, post>-1982 § 2 cases compiled by Professor Ellen Katz and the Voting Rights Initiative at the University of Michigan Law School. See Ellen Katz & The Voting Rights Initiative, VRI Data
But the persuasive power of this statistic dissolves when we disaggregate the data by state. Figure V looks at each state’s number of successful § 2 lawsuits between 1982 and 2005, per million residents, using the same 2004 U.S. Census Bureau population estimates used above. Because Professor Katz’s database helpfully informs us whether each lawsuit was located in a covered or uncovered jurisdiction, it is possible to break out the covered portions of partially covered states from the uncovered portions:
Like the federal observer data discüssed above, Figure V suggests that a more narrowly tailored coverage formula — capturing only Mississippi, Alabama, and Louisiana, and possibly the covered portions of South Dakota and North Carolina — might be defensible. But beyond these, the covered jurisdictions appear indistinguishable from their uncovered peers. The five worst uncovered jurisdictions, including at least two quite populous states (Illinois and Arkansas), have worse records than eight of the covered jurisdictions: the six covered states appearing to the right, plus two fully covered states — Arizona and Alaska — which do not appear on the chart at all because there has been not one successful § 2 suit in those states in the whole 24-year period. Of the ten jurisdictions with the greatest number of successful § 2 lawsuits, only four are covered (five if we add back in the covered portion of South Dakota). A formula with an error rate of 50% or more does not seem “congruent and proportional.”
To bolster these numbers, the majority relies on an account of purportedly successful, but unreported § 2 cases, numbers
Additionally, defenders of the coverage scheme point to two circumstances that might also artificially reduce § 2 figures for the covered states, namely the “blocking” effect of actual § 5 vetoes, and the deterrent effect of jurisdictions’ having to seek preclearance. As to blocking, there seems little basis to infer that many of the 626 objections spread over 24 years were substitutes for successful § 2 suits. Any such inference is undermined by the Department’s ability to almost costlessly “Just Say No,” the allocation of the burden of proof to the jurisdiction, the legal fees that fighting the Department will entail, and the difference in the substantive standards governing § 2 and § 5 proceedings.
As to the imputed deterrence, it is plainly unquantifiable. If we assume that it has played a role, how much should we inflate the covered states’ figures to account for it, and which covered states? Given much weight, the supposed deterrent effect would justify continued VRA renewals out to the crack of doom. Indeed, Northwest Austin’s insistence that “current burdens ... must be justified by current needs,”
To recap, of the four metrics for which comparative data exist, one (voter registration and turnout) suggests that the coverage formula completely lacks any rational connection to current levels of voter discrimination, another (black elected officials), at best does nothing to combat that suspicion, and, at worst, confirms it, and two final metrics (federal observers and § 2 suits) indicate that the formula, though not completely perverse, is a remarkably bad fit with Congress’s concerns. Given the drastic remedy imposed on covered jurisdictions by § 5, as described above, I do not believe that such equivocal evidence can sustain the scheme.
The Supreme Court’s initial review of the formula in 1966 provides a model for evaluating such an imperfect correlation. It assessed the evidence of discrimination before it and divided the covered jurisdictions into three categories: (1) a group for which “federal courts have repeatedly found substantial voting discrimination”; (2) another group “for which there was more fragmentary evidence of recent voting discrimination”; and (3) a third set consisting of the “few remaining States
The evidence adduced above yields a far worse fit than the data reviewed in Katzenbach. Indeed, one would be hard-pressed to put any of the covered jurisdictions into Katzenbach’s first category. Based on any of the comparative data available to us, and particularly those metrics relied on in Rome, it can hardly be argued that there is evidence of a “substantial” amount of voting discrimination in any of the covered states, and certainly not at levels anywhere comparable to those the Court faced in Katzenbach. In terms of successful § 2 law suits, only three covered states — Mississippi, Louisiana, and Alabama — plus uncovered Montana — have more than two successful suits per million residents over the past quarter-century (excluding of course the covered portion of South Dakota, which scores high only because with such a small population the one suit there produces a high ratio per hypothetical million); in fact, these three states are the only ones with more than 10 successful suits in the 24 years between 1982 and 2006.
Even assuming that these small numbers would qualify as “fragmentary evidence” adequate to place those three in Katzenbach’s second category, that leaves six fully covered states (plus several jurisdictions in partially covered states) in category three, many more than in 1966, when only two fully covered states (Virginia and Alaska) were not included in either category one or two. See Katzenbach,
Moreover, the Court in 1966 relied on rather a natural inference from the data available. The tight relationship between the two trigger criteria (i.e., voter turnout and the use of voting “tests and devices”) and evidence of discrimination in the states in categories one and two, made it logical to suppose that Congress reasonably inferred a comparable fit for the remaining covered jurisdictions for which direct evidence of discrimination was missing (i.e., those in category three). But today the trigger criteria have lost any inherent link to the key concern. The newest triggering data hark back to 1972, 34 years before the current formula was enacted, and nearly 60 years before the current act expires. Indeed, if the formula were to be updated to use more recent election data, it would cover only Hawaii. See 152 Cong. Rec. H5131, H5181 (daily ed. July 13, 2006).
More critically, the Court’s acceptance of the § 4(b) formula in 1966 was explicitly based on certain reasonable understandings of § 5’s focus. Explaining why it saw no serious problem in the challengers’ claim of underinclusiveness— § 4(b)’s exclusion of localities not employing “tests or devices” but showing evidence of voting discrimination by other means — the Court observed that Congress had learned that persistent discrimination “has typically entailed the misuse of tests and devices, and this was the evil for which the new remedies were specifically designed.” Katzenbach,
Nor is the coverage formula materially helped by the VRA’s bailout provision. Although Katzenbach did note that § 4(a)’s bailout provision might alleviate concerns about overinclusiveness, see
All of this suggests that bailout may be only the most modest palliative to § 5’s burdens. One scholar hypothesizes that bailout may “exist[] more as a fictitious way out of coverage than [as] an authentic way of shoring up the constitutionality of the coverage formula.” Persily, supra, at 213. In fairness, the same scholar also entertains various other explanations, including the possibility that the eligible jurisdictions are just the ones for whom § 5 poses only a very light burden, see id. at 213-14, and ultimately concludes that no one knows which theory “best explains the relative absence of bailouts,” id. at 214. Regardless of the reason for the trivial number of bailouts, irrational rules — here made so by their encompassing six states and numerous additional jurisdictions not seriously different from the uncovered states — cannot be saved “by tacking on a waiver procedure” such as bailout. ALLTEL Corp. v. FCC,
Finally the government argues that because the VRA is meant to protect the fundamental right of racial minorities (i.e., a suspect classification), a heightened level of deference to Congress is in order. Appellees’ Br. 22-23. Purportedly supporting this proposition is Chief Justice Rehnquist’s statement in Nevada Dep’t of Human Resources v. Hibbs,
* * *
A current political dispute — state adoptions of voter identification requirements— highlights the oddity of § 4(b). In 2005, the state of Indiana enacted a law requiring its citizens to present a government-issued photo identification before voting. Against a variety of legal challenges, the Supreme Court upheld the law. See Crawford v. Marion County Election Bd.,
Why should voter ID laws from South Carolina and Texas be judged by different criteria (at a minimum, a different burden of persuasion, which is often critical in cases involving competing predictions of effect) from those governing Indiana? A glimpse at the charts shows that Indiana ranks “worse” than South Carolina and Texas in registration and voting rates, as well as in black elected officials (Figures I, II and III). As to federal observers, Indiana appears clearly “better” — it received none (Figure IV). As to successful § 2 suits South Carolina and Texas are “worse” than Indiana, but all three are below the top ten offenders, which include five uncovered states (Figure V). This distinction in evaluating the different states’ policies is rational?
Despite a congressional record of over 15,000 pages and 22 hearings, Shelby County,
It goes without saying that racism persists, as evidenced by the odious examples offered by the majority, see Maj. Op. at 865-66. But without more evidence distinguishing current conditions in the covered jurisdictions from those in the uncovered ones, § 4(b)’s coverage formula appears to be as obsolete in practice as one would expect, in a dynamic society, for markers 34-to-59 years old. Accordingly, I dissent.
The analysis above is my sole basis for finding § 4(b) of the VRA unconstitutional and thus for dissenting from the court’s opinion. I need not and do not reach the constitutionality of § 5 itself. But before concluding, I want to address a critical aspect of § 5, and of some of the cases interpreting earlier versions of that section. I address it first simply as a matter of language' — specifically the use of language to obscure reality — and then in relation to the words and political philosophy of the 15th Amendment. Though unnecessary to my dissent’s outcome, the troubling tension between the act’s encouragement
Section 5(b) makes unlawful any voting practice or procedure with respect to voting “that has the purpose of or will have the effect of diminishing the ability of any citizens of the United States on account of race or color ... to elect their preferred candidates of choice.” 42 U.S.C. § 1973c(b) (emphasis added). And of course similar phrasing has been included in § 2 since 1982. See Voting Rights Act Amendments of 1982, Pub.L. No. 97-205, § 3, 96 Stat. 131,134 (codified at 42 U.S.C. § 1973(b)) (prohibiting policies that prevent minority groups’ equal opportunity “to elect representatives of their choice.”).
The language (or a close equivalent) seems to have originated in one of the Court’s earliest opinions on § 5, though only as an offhand phrase in its explanation of how a shift from district to at-large voting might dilute minority impact: “Voters who are members of a racial minority might well be in the majority in one district, but a decided minority in the county as a whole. This type of change could therefore nullify their ability to elect the candidate of their choice.” Allen v. State Bd. of Elections,
Implied from the statutory “their” is necessarily a “they.” In the context of a statute speaking of impingements on citizens’ voting “on account of race or color,” and indeed in the universally accepted understanding of the provision, the “they” are necessarily members of minority groups. But in what sense do minority groups as such have a “preferred candidate”? Individuals, of course, have preferred candidates, but groups (unless literally monolithic) can do so only in the limited sense that a majority of the group may have a preferred candidate. Thus, when the provision is translated into operational English, it calls for assuring “the ability of a minority group’s majority to elect their preferred candidates.”
This raises the question of what happened to the minority group’s oum minority — those who dissent from the preferences of the minority’s majority?
Of course in any polity that features majority rule, some people are bound to be outvoted on an issue or a candidate and thus to “lose” — on that round of the ongoing political game. Such losses are a necessary function of any system requiring less than unanimity (which would be hopelessly impractical). And in an open society that allows people freely to form associations, and to design those associations, some people obviously will be members of associations whose representatives from time to time express, in their name, opinions they do not share. But that again is a necessary function of having associations free to adopt a structure that empowers their leadership to speak with less than unanimous backing.
But the implied “they” of § 5 is not a polity in itself; nor is it an association freely created by free citizens. Quite the reverse: It is a group constructed artificially by the mandate of Congress, entirely on the lines of race or ethnicity.
On what authority has Congress constructed such groups? Purportedly the 15th Amendment to the Constitution. But that says that the “right of citizens of the
It is hard to imagine language that could more clearly invoke universal individual rights. It is “citizens” who are protected, and they are protected from any denial of their rights that might be based on the specified group characteristics — race, col- or, or previous condition of servitude. The members of Congress who launched the amendment, said Senator Willard Warner, “profess to give to each individual an equal share of political power.” Cong. Globe, 40th Cong., 3d Sess. 861 (1869).
The 15th Amendment was a pivot point in the struggle for universal human rights. The roots of the struggle are deep and obscure. Many trace the concept to the three great monotheistic religions, Judaism, Christianity, and Islam. See, e.g., Micheline R. Ishay, The History op Human Rights (2004) (noting the contributions of these three traditions, among othеrs). No matter how spotty the actual performance of those religions’ adherents may have been over the centuries, the idea of a single God, claiming the allegiance of all mankind, surely implies a recognition of the dignity and worth of all humans, undistorted by local group loyalties historically linked to local gods. Perhaps the Enlightenment, though in tension with organized religion, has a better title; it is clearly the immediate root of the French Declaration of the Rights of Man and of the Citizen. But at all events the 15th Amendment states a clear national commitment to universal, individual political rights regardless of race or color.
Of course conventional political discourse often uses such terms as “the black vote,” “the youth vote,” “the senior vote,” etc. But those who use these terms— politicians, their consultants, pundits, journalists — know perfectly well that they are oversimplifications, used to capture general political tendencies, not a justification for creating or assuming a political entity that functions through a demographic group’s “majority.” The Supreme Court has recognized that these generalizations are no such justification. In Shaw v. Reno,
bears an uncomfortable resemblance to political apartheid. It reinforces the perception that members of the same racial group — regardless of their age, education, economic status, or the community in which they live' — think alike, share the same political interests, and will prefer the same candidates at the polls. We have rejected such perceptions elsewhere as impermissible stereotypes.
Id.
The pre-Enlightenment history of continental Europe included just such entities — “estates,” whose members voted separately from those of the other estates. Most famously, separately elected representatives of the nobility, the clergy, and the “common” people gathered in 1789 in the French Estates-General. For the last time. By the middle of that year, the Estates-General had ceased to exist. By transforming itself into a National Assembly, it precipitated the French Revolution and the permanent abolition of voting by estates, ultimately throughout Europe. The 15th Amendment can be traced back to that basic development. Section 5’s mandate to advance “the ability of any citizens of the United States on account of race or color ... to elect their preferred
None of this is to suggest that the country need for a minute countenance deliberate voting rule manipulations aimed at reducing the voting impact of any racial group, whether in the form of restrictions on ballot access or of boundary-drawing. And in judicial proceedings to stamp out such manipulations, it would оf course be no defense for the perpetrators to say that they sought only to downweight a minority’s majority. But a congressional mandate to assure the electoral impact of any minority’s majority seems to me more of a distortion than an enforcement of the 15th Amendment’s ban on abridging the “right of citizens of the United States to vote ... on account of race, color, or previous condition of servitude.” Preventing intentional discrimination against a minority is radically different from actively encouraging racial gerrymandering in favor of the minority (really, the majority of the minority), as § 5 does. Assuming there are places in which a colorblind constitution does not suffice as a “universal constitutional principle,” Parents Involved in Community Schools v. Seattle School Dist. No. 1,
Notes
. Given such a standard, I cannot understand how we could apply Salerno’s “no set of circumstances” test, see Maj. Op. at 883, quite apart from the test's questionable continued vitality, see, e.g., Washington State Grange v. Washington State Republican Party,
. The discourse revolving around § 5 invariably assumes that members of a minority have virtually identical interests and preferenees. I follow that pattern here, reserving for the end of the opinion consideration of
. All the charts exclude Michigan and New Hampshire, both partially covered states, because the few small townships covered constitute only a minute portion of those states and, as far as I can tell, have never been the subject of a § 5 action.
. The only covered jurisdictions excluded are Alaska, New Hampshire, and South Dakota. Of those, only Alaska is a fully covered state. The other states excluded for want of data are Hawaii, Idaho, Iowa, Kansas, Maine, Montana, Nebraska, New Mexico, North Dakota, Oregon, Rhode Island, Utah, Vermont, West Virginia, and Wyoming.
. In order to separately calculate the populations of the covered portions of partially covered states (namely, New York, California, North Carolina, and Florida), Chart V uses the county-specific population estimates from the U.S. Census Bureau. See U.S. Census Bureau, Annual Estimates of the Resident Population for Counties: April 1, 2000 to July 1, 2004, http://www.census.gov/popest/data/ counties/totals/2004/CO-EST2004-01 .html (linking to county-specific data for these states and others); Voting Section, U.S. Dep’t of Justice, Section 5 Covered Jurisdictions, http://www.justice.gov/crt/about/vot/sec_5/ covered.php (last visited May 9, 2012).
. I exclude North Carolina here because four of its ten successful suits were located in uncovered portions of the state. See Katz Master List.