On January 19, a panel of the U.S. Court of Appeals for the D.C. Circuit debated the constitutionality of the Voting Rights Act’s preclearance requirement, one of Act’s most important and successful provisions, which was renewed by a near unanimous Congress in 2006 and signed into law by President George W. Bush. In 2009, in NAMUDNO v. Holder, the Supreme Court came dangerously close to striking down that 2006 renewal, raising a host of constitutional concerns about the requirement that jurisdictions that have a history of engaging in racial discrimination in voting obtain federal permission before altering their voting laws and regulations, but ultimately avoiding the constitutional question. During yesterday’s argument, the panel — Judges David S. Tatel, Thomas B. Griffith and Senior Judge Stephen F. Williams — grappled with the constitutional questions raised by Chief Justice Roberts in NAMUDNO. All three members of the panel were very active during the argument, posing numerous questions to the parties, often in rapid-fire succession.
In the District Court Judge John D. Bates, a conservative judge appointed by President George W. Bush, issued a comprehensive, 151-page opinion upholding the Act, finding that the Act was an appropriate exercise of Congress’ power to enforce the Fifteenth Amendment’s constitutional prohibition on racial discrimination in voting. Applying both the law and the facts, Judge Bates fully considered the constitutional concerns raised by the Supreme Court in NAMUDNO, and rejected them. Giving due regard to the “preeminent constitutional role of Congress under the Fifteenth Amendment to determine the legislation” and the “caution required of the federal courts when undertaking the ‘grave’ and ‘delicate’ responsibility of judging the constitutionality of such legislation,” Judge Bates refused to second-guess Congress’ near-unanimous judgment that preclearance was still necessary to stamp out voting discrimination. Guided by these two fundamental constitutional principles, Judge Bates upheld the Act, finding that Congress had amply demonstrated that preclearance was a congruent and proportional response to current and ongoing racial discrimination in voting. During the argument before the D.C. Circuit, Shelby County took aim at Judge Bates’ opinion, seeking to convince the panel that the preclearance requirement was outdated and could not be extended by Congress consistent with the Constitution.