After the recent Supreme Court argument in the Voting Rights Act case (Shelby County v. Holder), it appears the decision may well turn on the legal standards to be applied in deciding whether Section 5 of the Act, the preclearance section, has become unconstitutional with the passage of time. The constitutional questions in the case are fundamental: how much authority does Congress possess to choose the legislative means to combat a national evil (in this case, racial discrimination in voting), and how much authority does the Supreme Court have to overrule Congress’ choice? The answers to those questions involve interpretation of the words “necessary and proper” and “appropriate legislation,” which are in the Constitution, and “congruent and proportional,” which are not in the Constitution but which the Supreme Court has adopted in recent years as aids in interpreting the first group of words.
Misconceptions about the standards are easy to have. The Chief Justice, for one, thought his Court has already applied the “congruent and proportional” test to the Voting Rights Act. Tr. Oral Arg., p. 56. He was mistaken. In the 2009 case that the Chief Justice was recalling (Northwest Austin MUD v. Holder), the “congruence and proportionality” test was put forward by the petitioner but the Court specifically declined to address this issue and decided the case on another ground.
Moreover, as discussed below, the “congruence and proportionality” test, as used in the Court’s cases thus far, has nothing to do with Section 5 of the Voting Rights Act. This is because the Court’s stated purpose for using that test has been solely to identify and weed out laws that go beyond Congress’ enforcement power because they are “substantive” rather than “remedial,” whereas Section 5 of the Voting Rights Act is, and has been repeatedly recognized by the Court, to be remedial.
The debate in the Supreme Court in the Shelby County case was largely framed as a “sufficiency of the evidence” question, as in reviewing a lower court verdict – did Congress in 2006 have a record of enough voting discrimination in the covered jurisdictions to warrant the strong remedy of Section 5 preclearance. Or, as Shelby County’s lawyer put it, “is this killing a fly with a sledgehammer?” Tr. Oral Arg., 28.
This seems to be the wrong question. There is strong Supreme Court precedent – which the City of Boerne line of cases does nothing to disturb – that in this situation the claim of “too much enforcement” is largely for Congress to decide rather than the Supreme Court.