Four years ago, when the Supreme Court last considered the constitutionality of Section 5 of the Voting Rights Act (VRA), Justice Kennedy questioned why “[t]he sovereignty of Alabama is less than the sovereign dignity of Michigan,” and why the government of one is “to be trusted less” than the government of the other. Should the Justices now strike down the statute, as many think they are poised to do, the reason why will likely be their belief that places like Alabama are no longer any different from places like Michigan – or, better yet, Ohio, where Section 5 is wholly inapplicable. Voters may confront difficulties in Alabama, the Justices would posit, but these difficulties appear no worse than those faced by voters in those states left unregulated by Section 5. Therefore, Section 5 must be invalid. Q.E.D. Sounds plausible perhaps, but take a closer look. As an initial matter, it is not at all clear that the Court needs to compare covered and non-covered jurisdictions in order to assess the constitutionality of the VRA. The issue presented in Shelby County v. Holder is not whether the Justices think Alabama is worse than Ohio, or even whether Congress might permissibly conclude that it is. Instead, Shelby County presents a different question: whether Congress has the power to extend a remedial regime that everyone agrees it lawfully adopted based on its conclusion that the regime continues to do critical work in the places where it operates. That conclusion should not be suspect, much less invalid, simply because problems have since developed in other jurisdictions that Congress might also appropriately regulate.
