There is a certain symmetry to the Department of Justice’s decision to challenge the recent wave of new restrictive voter ID rules (under Section Five of the Voting Rights Act of 1965), beginning with South Carolina’s Voter ID law. If (or more likely, when) this matter comes before the Supreme Court, it will be the second time that South Carolina has been the battleground for a substantive challenge to the constitutionality of the Voting Rights Act of 1965, or VRA. The first was in South Carolina v. Katzenbach (1966). A look back at this case illuminates the issues likely to arise in the current controversy.
Let’s begin by sketching in the background.
The VRA was enacted in response to the ongoing denial of access to the ballot by Southern states to their African American citizens – a policy of denial that went back as far as the late nineteenth century. As late as 1940, only 3 percent of voting-age southern blacks were registered to vote. Fewer still were able actually to cast a ballot that meant anything in an election. By 1964, African American voter registration in the deep South, where most American blacks lived, stood at only 22.5 percent, with Mississippi setting the lowest level at 6.7 percent (even though that lowest level was an increase from a rate of 1.98 percent two years earlier). Worse yet, the application of such vote dilution techniques as voting lists purges, at-large elections, and full-slate and majority-vote requirements -- not to mention the ever-present threat of economic reprisals and physical violence against any black trying to vote -- meant that, even in those areas where blacks could vote, actual African American voting rates were much smaller. Although Congress enacted civil rights legislation in 1957, 1960, and 1964 that expanded the federal government’s role in protecting minority members’ right to vote, efforts to fight southern black disenfranchisement in the courts before the enactment of the VRA had proven frustrating and counterproductive.
The problem was the limited range of enforcement tools available to the federal courts. Litigation as an enforcement mechanism always has been a slow and unwieldy process. It offered recalcitrant southern election officials (not to mention segregationist federal judges) many opportunities for delay and obstructionism. Every time the courts overturned laws aimed at disenfranchising southern black voters, southern election officials simply turned to new (or, at least, different) techniques to achieve the same discriminatory end -- techniques not covered by the courts’ orders and thus still permissible until invalidated by another court proceeding. And, when the courts were about to invalidate these new procedures, southern election officials simply deployed yet another disenfranchisement law or procedure, starting the whole process over again. In consequence, opponents of black vote denial were forced to initiate court case after court case in their efforts to gain the vote –producing very few practical gains with regard to African American voting in the South.
Congress expressly designed sections Four and Five of the VRA to attack the sources of delay and obstructionism in the case-by-case litigation approach. Section 4 froze all southern election laws in place as of November 1, 1964. Section Five required that, if state or local officials wanted to change an election law or procedure, they first had to show that the revised election rule or procedure did “not have the purpose and will not have the effect of denying or abridging the right to vote on account of race or color.” Only then could they receive pre-clearance from the Justice Department or the federal courts to put that change into effect. These two sections thus effectively ended the southern strategy of using ever-shifting techniques of voter denial to derail election reforms.
South Carolina objected to the VRA in general and with specific reference to Sections Four and Five. In its complaint, the state attacked the VRA as an unconstitutional encroachment on “an area reserved to the States by the Constitution,” as a violation of the principle of equality between the states, and as an illegal bill of attainder (a legislative punishment enforced without due process of law, banned by Article I, section 9 of the U.S. Constitution). More specifically, the complaint challenged the “triggering mechanism” in section 4, which brought South Carolina (and much of the rest of the South) under the VRA’s provisions, arguing as well that section 5’s pre-clearance provisions exceeded Congress’s constitutional powers.
The federal government answered these charges by noting the long history of race-based discrimination as practiced in South Carolina and other southern states, a history that showed no sign of abating, and therefore stressing the pressing need for reform. More generally, government lawyers proclaimed Congress’s supreme authority to act in these matters under its inherent legislative powers.
In an 8-1 vote (actually, Justice Hugo Black concurred with some parts of the majority opinion while dissenting from other parts) the Supreme Court affirmed the VRA’s constitutionality. The majority justified this action in response to “the historical experience which [the Act] reflected.” As Chief Justice Earl Warren explained for the majority:
Two points emerge vividly from the voluminous legislative history of the Act . . . . First: Congress felt itself confronted by an insidious and pervasive evil which had been perpetuated in certain parts of our country through unremitting and ingenious defiance of the Constitution. Second: Congress concluded that the unsuccessful remedies which it had prescribed in the past would have to be replaced by sterner and more elaborate measures in order to satisfy the clear commands of the Fifteenth Amendment.
The Voting Rights Act of 1965 thus reflected “Congress' firm intention to rid the country of racial discrimination in voting.” The crucial question before the Court, therefore, was the constitutional legitimacy of this “complex scheme of stringent remedies aimed at areas where voting discrimination has been most flagrant.” Did Congress have the power to pass such laws? And assuming that Congress had such broad powers, were such new and innovative enforcement techniques as pre-clearance a legitimate application of Congress’ powers under the Fifteenth Amendment? Further, did these new powers conflict with other fundamental constitutional rights and doctrines, such as those of “the equality of States,” “due process,” and the ban on federal courts issuing “advisory opinions”?
As to the general question of Congress’ power to legislate, the majority held, “After enduring nearly a century of systematic resistance to the Fifteenth Amendment, Congress” had every right to decide “to shift the advantage of time and inertia from the perpetrators of the evil to its victims.” The “language and purpose of the Fifteenth Amendment, the prior decisions construing its several provisions, and the general doctrines of constitutional interpretation, all point to one fundamental principle. As against the reserved powers of the States, Congress may use any rational means to effectuate the constitutional prohibition of racial discrimination in voting.” Furthermore, Warren noted, the VRA’s provisions were “strictly tailored to those states where the problem was most prevalent” –clearly “a permissible . . . method of dealing with the problem.”
But what of Sections Four and Five, the provisions limited “to those states where the problem was most prevalent”? Here too the Court came down in support of Congress’s powers to act as it saw fit. “The formula eventually evolved to describe these areas [that is, Section Four] was relevant to the problem of voting discrimination, and Congress was therefore entitled to infer a significant danger of the evil in . . . [these] States and political subdivisions . . . . No more was required to justify the application to these areas of Congress' express powers under the Fifteenth Amendment.” As to Section Five, Warren found the imposition of a pre-clearance requirement constitutionally permissible given the facts on the ground:
This may have been an uncommon exercise of congressional power, but the Court has recognized that exceptional conditions can justify legislative measures not otherwise appropriate. . . . [For years southern states had avoided the intent of the law by] the extraordinary stratagem of contriving new rules of various kinds for the sole purpose of perpetuating voting discrimination in the face of adverse federal court decrees. . . . [Congress knew this and properly accepted] the fact that these States might try similar maneuvers in the future in order to evade the remedies for voting discrimination contained in the Act itself. [Given such] unique circumstances, Congress responded in a permissibly decisive manner.
We can now return to the current debate over Voter ID rules. The Court’s history- and fact-based foundation for its ruling in South Carolina v. Katzenbach raise interesting possibilities in the debate over the permissibility of voter ID laws under the VRA. South Carolina likely will argue that the “unique circumstances” that gave rise to Sections Four and Five have passed; that isolating the South for extra supervision is no longer factually appropriate. The Justice Department, in turn, is likely to argue that the need for Section Five has not ended. In particular, that in renewing Section Five in 2006 Congress had expressly re-examined the “exceptional conditions” in the South and determined that the pre-clearance provisions were still a necessity.
Which way the Supreme Court will jump remains an open question. In Northwest Austin Municipal Util. District No. 2 v. Holder (2009), the Court vigorously questioned the ongoing need for Section Five’s pre-clearance provisions; however, in that case, the Justices held off ruling these provisions unconstitutional per se; instead, they ruled that as a matter of statutory construction, the VRA’s pre-clearance provisions had not been adequately applied in the case before the Court. Still, during oral argument many of the Justices expressed serious doubts whether the factual underpinnings justifying the application of Section Five were still valid. Was pre-clearance still needed to stop racial discrimination in the South? And, some Justices asked, why only in the South? Was voter discrimination in the South still worse than that practiced elsewhere in the country?
These and similar questions most likely will lie at the heart of the South Carolina Voter ID case. These facts raise the valid historical question: are the factual foundations that justified Section Four and Five still valid today? Does the South still practice vote denial and dilution based on issues of race and ethnicity? And if so, are the southern states’ practices more egregious than those practiced in other parts of the county?
In a future blog, I’ll try to answer at least some of these questions.