The upcoming oral argument in Shelby County v. Holder is not likely to produce any surprises – we had a sneak preview four years ago in Northwest Austin Municipal Utility District Number One v. Holder. While Northwest Austin ultimately turned on the tiny district’s eligibility to bail out from Section 5’s provisions, the oral argument centered on the broader question of Section 5’s constitutionality. The arguments in Shelby County will likely rehash those same arguments fromNorthwest Austin. In defense of Section 5, the United States will argue that most of the targeted jurisdictions have a lengthy history of intentional discrimination. Shelby County will counter that “current burdens … must be justified by current needs.” The United States will argue that but, for Section 5, covered states would revert to the blatant intentionally discriminatory practices that once justified Section 5. Shelby County will respond that such an argument assumes the culture of the South hasn’t changed in the past fifty years. The United States will also argue that the Court should defer to Congress’s 16,000-page record. Shelby County will respond that deference is uncalled for, and that the congressional record – no matter how large – fails to contain contemporary evidence that justifies singling out the covered jurisdictions.
That response by Shelby County– highlighting the inconsistencies in Section 5’s coverage formula – will also form the basis of its attack against the statute’s constitutionality. Section 5 differentiates between states on a matter fundamental to state sovereignty, yet little contemporary evidence justifies those half-century-old distinctions. On the contrary, minority registration rates and voter turnout are often better in covered jurisdictions. Claims of discriminatory voting practices are just as likely to come from non-covered jurisdictions. Covered jurisdictions elect minority candidates at least as frequently as non-covered jurisdictions. Covered jurisdictions are prohibited from making race-neutral voting changes – like voter ID laws – that are legal in non-covered jurisdictions. And so on.
In Northwest Austin, every member of the Court signed on to an opinion questioning the lack of contemporary evidence justifying the coverage formula. By finding the utility district eligible for bailout, however, the Court gave Congress a chance to correct the coverage formula’s constitutional problems. Unfortunately, Congress has taken no further action to remedy those constitutional deficiencies. It would be very surprising for a Court so skeptical of the coverage formula in 2009 to permit it to go unchanged through 2031.
Despite many claims to the contrary, the sky will not fall when the Court strikes down Section 5’s coverage formula. The constitutional problems are easily fixed. For example, Congress can impose a preclearance requirement on the states and jurisdictions that have low minority registration rates and voter turnout, or on jurisdictions that have been the most discriminatory in the past ten years. If Congress couples a narrowly tailored preclearance trigger with a relatively short expiration date – say five to ten years – it’s hard to see how the coverage formula won’t pass constitutional muster.