by Mike Dorf
I have sometimes criticized Jeff Toobin's New Yorker articles as dumbing down the law too much in order to reach a broad audience (e.g., here), so I feel some obligation to say that his latest New Yorker piece--on the Voting Rights Act case of Shelby County v. Holder, which will be argued in the SCOTUS next month--is excellent. Toobin argues that in light of the GOP's efforts to disenfranchise likely Democratic voters in November's election, it is ironic bordering on perverse that the Court is choosing this historical moment to consider whether the VRA (or, to be more precise, the 2006 reauthorization of the Section 5 preclearance mechanism of the VRA) is unconstitutional as beyond the powers of Congress.
As Toobin concedes--and as I would concede as well--contemporary disenfranchisement is rooted more in politics than in the racism of the Jim Crow period. Republicans don't want African Americans (or non-Cuban Latinos) to vote because they generally vote for Democrats, not because Republicans (necessarily) harbor racist views about African Americans (or other minority voters). Republicans are happy trying to disenfranchise Democratic-leaning affluent white college students too.
But that shouldn't matter because the touchstone of forbidden race discrimination is the use of racial categories, not the purpose for which those categories are being used. The Court's affirmative action cases make that clear. A state university or employer that expressly employs race as a means of advancing a benign objective--like redressing past discrimination or increasing racial diversity--must satisfy strict scrutiny, even though the use of race is not rooted in animus towards any racial group. Likewise here. Even assuming that suppression of Democratic votes is a legitimate government objective (about which more, momentarily), pursuing it through race-conscious means would violate the Fourteenth and Fifteenth Amendments--and thus Congress acts within its authority to enforce those amendments when it requires special procedures for scrutinizing laws that may be restricting the vote based on race.
To be sure, none of the laws being used these days is expressly race-based, but that was true under Jim Crow as well. Just as back then, a literacy test or a poll tax would have been imposed in Alabama for the obvious purpose of disenfranchising African Americans--and was therefore a sufficient predicate for the original VRA--so too today, the adoption of Voter ID laws for the obvious purpose of exploiting their disparate impact on poor minority voters (who tend to vote for Democrats) should count as a sufficient predicate for the continued validity of the VRA.
Moreover, it's not even clear that the argument for the VRA's continuing validity rests on the conclusion that today's voter suppression efforts are tacitly race-based. In Vieth v. Jubelirer the Supreme Court held that complaints about political gerrymandering are not justiciable, although a concurrence in the judgment by Justice Kennedy, providing the necessary fifth vote, left open the possibility that in some future case the Court might be amenable to invalidating gerrymandering if sufficiently determinate judicial criteria could be developed. As I read the case, it does not stand for the proposition that complaints about voting procedures are non-justiciable (a position that might be attributable to Justice Frankfurter a couple of generations ago) but rather that the nature of the districting process is so inherently political that the courts cannot establish judicially manageable standards. Vieth thus leaves open the possibility that other efforts to shut out or diminish the political impact of particular voting blocs--even if for political rather than ultimately racial reasons--could give rise to a justiciable claim.
Moreover, even if Vieth were read broadly to express judicial reluctance to enter the fray of regulating elections, it would only reflect the Court's skepticism of its own ability to develop manageable standards. In the Voting Rights Act, Congress has provided the standards.
The foregoing argument responds to justiciability objections rooted in the separation of powers but what about federalism? Where does Congress get the affirmative authority to regulate the voting process? The answer--quite apart from any interest in tamping down race discrimination via the Fifteenth Amendment--is Section 5 of the Fourteenth Amendment. Although the Supreme Court's Section 5 cases are arguably somewhat contradictory, the closest thing to a synthetic principle that emerges from them is this: Where Congress seeks to remedy or prevent violations of rights that are protected by heightened scrutiny under the judicially developed doctrines, the Court will give substantial deference to Congress. That principle explains the results in the Hibbs case (where the semi-suspectness of sex discrimination gives rise to heightened scrutiny) and the Lane case (where the fundamental right to court access gives rise to heightened scrutiny).
Thus, because the right to vote is "fundamental" within the Court's cases, Congress has fairly wide latitude to enact preventive and remedial measures. If the Court applies its existing Section 5 jurisprudence, it therefore ought to uphold the VRA. But don't count on it. In the NAMUDNO case, the conservative Justices pretty clearly signaled that they're itching to invalidate the VRA.