Katz: Why Reaathorization is Different

Numerous posts, to date, have focused on whether Section 5 should be extended in its current form, and whether Supreme Court will uphold it if it is. With the House of Representatives scheduled to vote this week on a bill to reauthorize Section 5 for another quarter century, I thought I'd offer a couple of thoughts on the second question. Specifically, how bad do things need to be in covered jurisdictions for the Court to deem a reauthorized Section 5 constitutional?

The prevailing view seems to be "pretty bad," with supporters and opponents of reauthorization disagreeing most vigorously about precisely how bad things are. It's an odd debate, particularly for supporters of reauthorization, who find themselves simultaneously celebrating all that preclearance has accomplished while lamenting the dire state of minority political participation in covered jurisdictions.

This gloomy view reflects the indisputable fact that discrimination in voting persists, and much of it remains quite serious. But it is also the upshot of the widely shared assumption that reauthorization of Section 5 will survive constitutional scrutiny only if Congress documents pervasive unconstitutional conduct in covered jurisdictions for which preclearance offers a remedy. Pam Karlan has recently argued otherwise, and in a forthcoming article (available here ) I take issue with this assumption as well.

I agree with much of what Pam has to say and indeed have written previously (see Reinforcing Representation, 101 Mich. L. Rev. 2341 (2003)) about the deference the Court has consistently accorded to the Voting Rights Act, even as the justices have articulated new and stringent limitations on congressional power to enforce civil rights in other realms. I think, however, that there is a distinct reason why reauthorization should not hinge on pervasive unconstitutional conduct in covered jurisdictions. Simply put, Section 5 is an operational statute. It was put into place forty years ago to combat precisely the type of pervasive discrimination Supreme Court decisions like City of Boerne v. Flores now demand for new congressional legislation.

Boerne and its progeny all involved the question whether a problem Congress sought to address was significant enough to warrant a new congressional statute. In that context, documentation of pervasive unconstitutional conduct signals a problem in need of a remedy. The Court should not, however, require a record of such conduct when Congress reauthorizes an existing statute. Indeed, if, four decades out, the evidence showed that covered jurisdictions were in fact still characterized by pervasive unconstitutional conduct of the sort preclearance was meant to target, then we should scrap Section 5 and hammer out a new statute that might actually address these problems.

Put differently, Section 5's very success in addressing racial discrimination in voting is itself neither proof that preclearance has become obsolete nor license for the statute to continue indefinitely. Instead, the question whether preclearance is still needed depends not on a raw assessment of the present scope of unconstitutional conduct in covered jurisdictions, but instead on a predictive judgment about the likely prevalence of such conduct absent the constraints imposed by Section 5.

Considerable evidence suggests that things have changed dramatically for the better in covered jurisdictions. While blatantly unconstitutional conduct has hardly been eradicated, contemporary manifestations of racial discrimination in voting are jarring precisely because they are no longer the norm, as they were before Section 5 was implemented. And yet, because these developments occurred in communities subject to the constraints imposed by Section 5, and, without doubt, were shaped by them, the question arises whether they would persist in the absence of the preclearance process.

That question can hardly be answered with certainty. Still, a study we conducted here at Michigan last year examining all published decisions under Section 2 of the VRA offers one lens through which to consider this prospect. Judicial findings under Section 2's totality of circumstances test offer a rich source of information detailing political participation nationwide, and a basis on which to compare such participation in covered and non-covered jurisdictions. I won't rehash all those findings here, but a few points are worthy of note.
Covered jurisdictions account for the majority of the Section 2 lawsuits in which plaintiffs achieved successful outcomes since 1982, even though less than one-quarter of the U.S. population resides in covered jurisdictions, courts in the region arguably apply standards that make success on a Section 2 claim more difficult, and the preclearance process blocks some portion of discriminatory electoral changes that might otherwise be challenged under Section 2.

More courts, moreover, have found the so-called Senate factors to be satisfied in covered jurisdictions than in non-covered jurisdictions. In particular, courts in covered jurisdictions have both found and have been more likely to so find: acts of official discrimination that curtail voting rights, the use of devices that enhance opportunities for discrimination against minority voters, a lower level of minority voter registration and turnout, contemporary voting opportunities shaped by the continuing effects of discrimination in various socio-economic realms, racial appeals, and a lack of success by minority candidates. Courts in both covered and non-covered jurisdictions found legally significant racial bloc voting in an equal number of lawsuits, but more courts in covered jurisdictions documented voting patterns that were extremely polarized and did so in a greater proportion of cases than did courts in non-covered jurisdictions. A racially exclusive slating process is the only Senate factor that more courts have found in non-covered jurisdictions than in covered ones.

None of this, to be sure, establishes a contemporary constitutional violation. Section 2's totality of circumstance inquiry nevertheless calls for examination of these factors based on the view that they all impede minority political participation and render electoral practices more likely to result in actionable discrimination against minority groups. This actionable discrimination is not necessarily discrimination that violates the Constitution. And yet, the reasons that render these problems probative of a Section 2 violation also make them indicia of an environment in which past unconstitutional conduct has yet to be fully remedied and future constitutional injuries are likely to arise.

That, of course, is not to say that preclearance necessarily remains 'congruent and proportional' so long as a full remedy has yet to be achieved, a prospect of future constitutional injuries exists, or identifiable differences persist between covered and non-covered jurisdictions. Indeed, it is not clear that the differences identified are sufficient to render a reauthorized Section 5 congruent and proportional legislation in the eyes of the Roberts Court, or indeed whether they should. But it is a debate about differences such as these that we should be having. The debate about reauthorization has instead focused for too long on the wrong question. The scope of unconstitutional conduct in covered jurisdictions cannot tell us whether preclearance is still needed. The debate on reauthorization should focus on evidence that might.
--Ellen Katz

Gaddie Supplemental Testimony on VRA Renewal

Pildes: More on Bailout

[Note: The footnotes to this article appear below: in the extended entry portion of the post]

The bailout element of section 5 was originally designed in the 1965 Act to be integral to the overall structure, policy, and perhaps even the constitutionality of section 5. This element was to be a principal mechanism by which the coverage formula would properly adapt over time to remain congruent to where actual violations continued to occur. Congress' intent was that the unique regime of section 5 would thus unwind itself over time. Jurisdictions would bailout where appropriate; section 5 would have a more and more targeted reach; and the scope of the Act would remain tied to where problems predominated.

In the decision upholding the original section 5, the Supreme Court acknowledged that the original coverage formula might be overbroad, but that the bailout provisions, whose burdens the Court assumed would be "quite bearable" for covered jurisdictions, made the overall coverage-bailout structure sufficiently well tailored to be constitutional. South Carolina v. Katzenbach, 383 U.S. 301, 329-32 (1966). The Court also understood the bailout provisions to mean that "an area need not disprove each isolated instance of voting discrimination in order to obtain relief in the termination [i.e., bailout] proceedings." Id. at 332. As a declaratory judgment action immediately after the Act had been passed, Katzenbach was decided before the Court or Congress had any practical experience with the actual operation of the bailout mechanism.

Yet even by 1982, Congress recognized that, as a practical matter, the bailout mechanism had failed to perform its intended function. As of 1982, only nine jurisdictions had managed to bailout of section 5 coverage.[1] Congress concluded that this unanticipated low rate was caused, in part, by failures in the way the bailout provisions had been designed. Thus, Congress amended section 5 in 1982 in an effort to make bailout easier and more effective.[2] The DOJ estimated that 25% of counties in the major covered states would be eligible to bailout within two years of the amendments, by 1984.[3] At the time, this as a 'greatly softened bailout standard' and 'not a provision which the civil rights community wanted,' based on the view that the new standard would make bailout too easy.[4]

Yet as a practical matter, these amendments have failed to have much effect. Since 1982, only 9-11 counties in the entire country, all in Virginia, have attained bailout status.[5] And even these few bailouts do not appear to have broad implications. In these counties, the black population ranges from 1.1% to 9.1%, as of the last decade, the time frame in which DOJ approved bailout for these counties. The Hispanic population ranged from 0.5% to 7.2% during this same period. That only 9-11 counties -- with minority populations this low -- have managed to bailout does not appear to attest to the practical effectiveness of bailout.

In an earlier post, I noted four possible reasons bailout has not, as a practical matter, been used. I suggested there that Congress should first develop a more complete record in order to understand why bailout has not been more of a practical option, since whether legal changes are appropriate, and if so, in what form, depends on understanding the reasons it is so rarely used. Absent that more complete record, I can suggest several modifications, in order of importance, that might improve the bailout process:

1. Congress could require DOJ to take the initiative in identifying jurisdictions eligible or potentially eligible for bailout. Many witnesses that have addressed bailout have made recommendations of this sort. Thus, J. Gerald Hebert, the principal lawyer representing jurisdictions in bailout applications, has made a similar suggestion. In House hearings, his written submission stated: “I would recommend that when the legislation is reauthorized, Congress suggest the Department of Justice provide more information to localities about how to achieve bailout and encourage them to do so."[6] Professors Michael McDonald and Richard Hasen[7] have made a similar suggestion.

Shifting the initiating role in bailout to DOJ would address several possible reasons bailout has been so rare. To the extent jurisdictions are not well informed, a DOJ lead role could rectify that. A DOJ role could also reduce the financial costs to jurisdictions of the bailout process. Most importantly, to the extent elected state and local officials are risk averse about the political perceptions associated with their taking the lead in seeking to have their jurisdictions removed from section 5 coverage, shifting the initiating role to DOJ could mitigate perceptions of that sort, when those perceptions are not grounded in the actual facts. My sense is that this last factor does indeed play a significant role in explaining why so few jurisdictions have sought bailout.

2. Currently, towns, cities, and other local governmental units cannot bailout unless the entire county in which they sit can bailout as well. A better approach might well be to permit these local governmental units to bailout independently. That would bring the local government-county relationship under section 5 into the same relationship as the county-state one. Currently, a county can bailout even if the state in which it exists cannot. If there are policy reasons that the same relationship should not apply at the more local level, I am not aware of them. Again, the principal lawyer representing covered jurisdictions in bailout applications, J. Gerry Hebert has made this same recommendation in the House hearings.[8]

3. Congress could exclude from section 5 jurisdictions that today have populations below certain threshold levels of the minority groups protected under the VRA. The level at which that threshold should be set would require study and discussion. Perhaps populations somewhere below 5-10% would be an appropriate threshold, but I offer that only as a starting point for consideration. Among other effects, such a change would address the oddity of certain small towns in New Hampshire, for example, being swept into section 5 by the broad coverage formula. These jurisdictions might have been brought within the sweep of section 5 not because of a considered policy judgment that they warranted inclusion, but because the simple, general coverage criteria initially adopted formally applied to them.

Most importantly, I believe there can be broad-based consensus on improving the bailout process. Doing so in appropriate ways would not only be good policy. It would also indicate that the policymaking process is capable of adjusting the unique and extraordinary mechanism of section 5 to changing realities. That can only enhance the constitutionality of section 5 as a whole, particularly if Congress does not adjust the coverage formula in any way at all. Section 5 does not expire until 2007. It would be quite unfortunate were Congress to rush the proposed bill through without determining whether broad consensus on bailout reform exists and without reflecting such a consensus in the bill.

--Rick Pildes

Footnotes

1. Michael P. McDonald, Who's Covered? The Voting Rights Act Section 4 Coverage Formula and Bailout Mechanism, in THE FUTURE OF THE VOTING RIGHTS ACT (David Epstein, Richard H. Pildes, Rodolfo de la Garza, and Sharyn O'Halloran, eds., forthcoming, Sept. 2006). For a more comprehensive examination of the history of bailouts, see Paul F. Hancock and Laura L. Tredway, The Bailout Standards of the Voting Rights Act: An Incentive to End Discrimination, 17 Urb. Law. 379 (1985).

2. For a thorough study of Congress' consideration in 1982 of, and amendments to, the bailout provisions, see Paul Winke, Why the Preclearance and Bailout Provisions of the Voting Rights Act Are Still a Constitutionally Proportional Remedy, 28 N.Y.U. REV. L. & SOC. CHANGE 69 (2003).

3. Id. See also Hancock and Tredway, supra note ___ at 412.

4. See id. at 423 (quoting testimony of NAACP Executive Director and MALDEF President and General Counsel). See also McDonald, supra note ___.

5. See The Voting Rights Act: An Examination of the Scope and Criteria for Coverage Under the Special Provisions of the Act: Oversight Hearing Before the H. Subcomm. on the Constitution, Comm. on the Judiciary, 107th Cong. 88 (Oct. 20, 2005) (statement of Gerald Hebert, Esq., former acting Chief, Civil Rights Division, U.S. Department of Justice).

6. Hebert testimony, supra note __ at 90.

7. See McDonald, supra note ___; An Introduction to the Expiring Provisions of the Voting Rights Act and Legal Issues Relating to Reauthorization, Before the S. Comm on the Judiciary, 108th Cong. 4-5 (May 9, 2006) (statement of Richard L. Hasen, Professor, Loyola Law School).

8.Hebert Testimony, supra note ___ at 91.

-- 
Rick Hasen 
William H. Hannon Distinguished Professor of Law
Loyola Law School 
919 Albany Street 
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