By Mike Dorf
I've scheduled this post to go live just as I'm beginning my Federalist Society-sponsored debate with Hans von Spakovsky on the Supreme Court's decision last Term in Shelby County v. Holder and the Voting Rights Act (VRA) more generally. Mr. von Spakovsky is best known for his contention that in-person voter impersonation is a serious problem justifying voter ID laws. That contention has been challenged by, among others, UC Irvine Law Professor Rick Hasen (in this post at Talking Points Memo) and Jane Mayer of The New Yorker (in both this article and a follow-up in response to a rejoinder by von Spakovsky). Hasen and Mayer acknowledge that people sometimes try to steal elections but argue that von Spakovsky has produced very little evidence of in-person voter impersonation. I hope that our debate will focus on issues besides voter ID laws, about which I plan to make two main points:
(1) In-person voter impersonation is an inefficient means of stealing an election, and so we would expect that people intent on stealing elections would chiefly rely on other means, such as stuffing the ballot box or falsifying results. Accordingly, the burden of persuasion should rest with those, like von Spakovsky, who claim that there is a substantial amount of in-person voter impersonation.
(2) Even if one thinks that there is substantial in-person voter impersonation, that is not a reason to think that Section 4 (or any other part) of the VRA is unconstitutional. If a state or other covered jurisdiction can show that voter ID requirements or other changes in its election laws do not have the purpose or "effect of denying or abridging the right to vote on account of race or color," then those voter ID requirements can be sustained in a preclearance proceeding under Sections 4 and 5 of the VRA (or at least they could prior to the Shelby County ruling). And in fact, prior to Shelby County, the Department of Justice did not block all voter ID laws, only the most restrictive ones.
From there, I'll pivot to make three main points in criticism of the Supreme Court's ruling in Shelby County.
(1) The Supreme Court's approach in Shelby County rests on the assumption that the pre-clearance requirement is extraordinary because states have primary authority for regulating elections. But with respect to congressional elections, Article I, Sec. 4 authorizes Congress to "make or alter" regulations of elections, notwithstanding state law. It's true that the original Constitution provides no authority for Congress to make or alter state election law with respect to state offices, but Section 2 of the Fifteenth Amendment undoubtedly does--as the substantive right against race-based disenfranchisement protected by Section 1 applies in state as well as federal elections. So the baseline should be that Congress does have power to make rules for how states conduct their elections, so long as Congress has reason to think that doing so is necessary and proper to protect the right to vote against race-based restrictions.
The question then is whether the requirement of pre-clearance is an appropriate means by which Congress can exercise its 15A.2 power. (In a technical sense, there isn't even a pre-clearance requirement, as covered jurisdictions could opt instead to go directly to the DC District Court for a declaratory judgment. Pre-clearance is an additional option for covered jurisdictions. Nonetheless, I understand the federalism objection to be an objection to the requirement of any federal supervision, judicial or executive, so I'll treat the judicial route as equivalent to the executive route.)
In his majority opinion in Shelby County, CJ Roberts notes correctly that the 1787 Constitutional Convention rejected the proposal that Congress be given the general power to "negative" state laws. Insofar as the VRA Section 5 pre-clearance mechanism gives to the federal government a kind of negative, he implies that it is extraordinary--and thus requires an extraordinary justification.
I think that's a rhetorically powerful but analytically weak move because, at bottom, pre-clearance is simply a less intrusive means of federal preemption than is direct preemption. Under 15A.2, Congress could enact all manner of direct regulations of state and local level voting in order to prevent or remedy race-based disenfranchisement. Pre-clearance is a mechanism that permits covered states and localities to exercise primary regulatory authority over elections, with the federal government only stepping in when there is a genuine threat of race-based retrogression. And in fact, the Justice Dep't has allowed just that, pre-clearing over 99% of changes from covered jurisdictions.
But the larger point is that there's nothing extraordinary here. As Harvard Law School Professors David Barron and Todd Rakoff argued in a recent Columbia Law Review article, other statutes (including the No Child Left Behind Act) enacted pursuant to other powers of Congress, grant the federal executive branch the power to waive what would otherwise be statutory requirements for the states. And measured against the baseline of permissible preemption, such a power is a protection for states, not an intrusion on their sovereignty.
(2) There are two ways to understand the Supreme Court's disapproval of the VRA Sec. 4 coverage formula. Perhaps the Court means to say that the extroardinary nature of the pre-clearance requirement warrants some form of heightened scrutiny, and thus the failure of Congress to update the coverage formula means that it fails such heightened scrutiny. As I have just noted, however, pre-clearance, properly understood, is not extraordinary, and so this argument fails.
But it is also possible to read the majority opinion in Shelby County as imposing heightened scrutiny because of a separate, freestanding obligation of Congress to respect the "equal sovereignty of the States," a principle that the opinion repeatedly cites. In this view, Congress must enact legislation that applies uniformly throughout the country--or at least must do so absent a very good justification, and a decades-old coverage formula doesn't count as a very good justification.
Where does the obligation to legislate equally among the States come from? It certainly does not appear anywhere in the Constitution or prior case law. And for good reason: Local and regional circumstances differ, so Congress often has reason to apply different rules of law to different places. For example, federal statutes set different reimbursement rates for expenses of Senators from different states (given the differing costs of transportation, etc.); federal law allocates funds to particular states for disaster relief on a piecemeal basis; federal law establishes national parks, military bases and public works projects in an ad hoc and political way that advantages some states while disadvantaging others. Yet courts quite properly do not apply anything resembling heightened scrutiny to the hundreds of federal laws that expressly treat different states differently.
(3) Nor is there any general requirement that Congress periodically update its laws--whether they contain coverage formulas like Section 4 or are out of date in some other way. Would it be a good idea? Maybe. Thomas Jefferson thought that all laws should expire every twenty years and Congress sometimes includes sunset provisions in various laws (including the VRA). But that too is generally considered a matter for legislative judgment. Many laws have been on the books unaltered for much longer than the coverage formula of the VRA.
Moreover, as Justice Ginsburg noted pithily in dissent, it is hardly clear that the coverage formula is outdated because preclearance itself prevented the covered jurisdictions from adopting racially retrogressive measures. She wrote: "Throwing out preclearance when it has worked and is continuing to work to stop discriminatory changes is like throwing away your umbrella in a rainstorm because you are not getting wet."
In seeming vindication of her observation, in the wake of Shelby County, two covered jurisdictions--Texas and North Carolina--showed that while the deluge of race-based disenfranchsiement that first occasioned the enactment of the VRA may have slowed, it is still raining. Texas announced that it would enforce a restrictive voter ID law and North Carolina enacted a new such law (which also includes other retrogressive measures). Perhaps the Justice Department will succeed in blocking these and other racially retrogressive laws under Sections 2 and 3 of the VRA, but it shouldn't have to. The whole premise of the VRA Sections 4 and 5 mechanism is that after-the-fact enforcement actions are much less effective than a pre-clearance requirement.
And even if Sections 2 and 3 were an adequate substitute for Sections 4 and 5, so what? That doesn't make Sections 4 and 5 unconstitutional. To extend Justice Ginsburg's metaphor, the existence of raincoats hardly demonstrates the uselessness of umbrellas.