By Mike Dorf
The opinion of Chief Justice Roberts in Shelby County v. Holder--striking down the coverage formula of the Voting Rights Act (VRA)--repeatedly states that the VRA is an extraordinary piece of legislation, and therefore requires an extraordinary justification. He and the majority thus find that Congress's continued use of a 40-year-old formula doesn't work. That strikes me as a fair conclusion, given the premise. But is the premise right? What's so extraordinary about the VRA?
The Chief Justice and, to be fair, prior cases, point to two features of the VRA: 1) The fact that it treats different states (and localities within some states) differently, thus allegedly violating the principle of equal sovereignty of the states; and 2) It subjects states to a procedure whereby the federal executive "pre-clears" state laws before they take effect. Are these really extraordinary?
Let's begin with equal sovereignty. The fact is that Congress routinely writes laws that apply differently in different states. Consider federal environmental regulation, which regulates or forbids particular activities in proximity to threatened land, water or species habitats. Under such laws, an activity that may be permissible in one state or locality--logging, say--is forbidden in another state or locality. Now it's true that in these instances the law does not EXPRESSLY differentiate between the various states and localities, but so what? Federal spending measures often do draw express distinctions, as when Congress authorizes a particular national park or military base. As a matter of practical politics, Congress often attempts to disguise the fact that it has singled out some place for some special burden or goody, but this doesn't fool anyone.
Should there be some rule that requires Congress to legislate in a way that formally treats the states equally? It's hard to see why. Often there are good reasons to treat different places differently because of different contexts and circumstances. General rules can probably take that into account, and so a formal requirement of equal treatment of the states wouldn't do much damage, but for the same reason it would be relatively easy to evade. In any event, the Court in Shelby County does not say that Congress must use general rules; it says that if Congress singles out states, it has to keep the basis for the singling out reasonably up to date. Yet there doesn't appear to be any requirement that general rules with differential impact be kept up to date. And so the opinion seems rooted in formalism on this point.
What about pre-clearance? CJ Roberts cites the fact that the Constitutional Convention rejected a proposal to give Congress the authority to "negative" state laws in support of the proposition that pre-clearance is extraordinary, but this strikes me as a non sequitur. Under the Supremacy Clause, Congress does have the power to negative state laws whenever it acts pursuant to an enumerated power. It's called the preemption power. Although CJ Roberts is right that states initially set the ground rules for elections, the Fifteenth Amendment (as well as Article I, Section 4 w/r/t federal elections) gives Congress the power to change--and thus to negative--those rules. So there really is nothing extraordinary here, at least so far as the Constitution is concerned.
I don't deny that Congress does not ordinarily exercise its power to distinguish among the states or to require preclearance of potentially preempted laws, and in that sense the VRA is extraordinary. But I don't think the Court has made the case that the VRA is constitutionally extraordinary, or that if it is, that the political safeguards of federalism are inadequate to guard against abuse of these ostensibly extraordinary powers.