The Supreme Court appears very likely to strike down Section Five of the Voting Rights Act this term. (That law requires nine states with a history of discrimination, as well as individual counties across the country, to obtain permission from the Justice Department or a federal judge before making changes to voting procedures.)
The probable downfall of Section Five should surprise no one. And frankly, those complaining about the justices who are likely going to strike the law down are upset with the wrong people. When Section Five falls, we should direct our anger at Congress, not the Supreme Court.
It's not like it was hard to see this coming. In 2009, the Supreme Court disposed of a case called Northwest Austin Municipal Utility District Number One v. Holder. Chief Justice John Roberts used the so-called canon of constitutional avoidance to put off directly addressing Section Five's continued constitutionality. But in Northwest Austin, every member of the court joined an opinion questioning the lack of contemporary evidence justifying the coverage formula.
Let me repeat that for emphasis: In Northwest Austin, eight members of the court joined the chief justice's opinion expressing very deep reservations about the constitutionality of Section Five as currently applied. The ninth, Clarence Thomas, flat out said that he believed the entire Voting Rights Act was unconstitutional.
Furthermore, Roberts' opinion is filled with warning after warning that any semi-competent observer of the court could immediately identify as language intended for Congress. For instance, after describing the very real improvements in securing the vote for all Americans in the South, Roberts strongly hints that the burdens placed on covered states by Section Five may no longer be justified: "[T]hese federalism costs have caused Members of this Court to express serious misgivings about the constitutionality of § 5." Later, the chief justice practically provides Congress with a roadmap as to how to fix the statute so that it will pass constitutional muster:
Past success alone, however, is not adequate justification to retain the preclearance requirements. It may be that these improvements are insufficient and that conditions continue to warrant preclearance under the Act. But the Act imposes current burdens and must be justified by current needs…departure from the fundamental principle of equal sovereignty requires a showing that a statute's disparate geographic coverage is sufficiently related to the problem that it targets…The evil that § 5 is meant to address may no longer be concentrated in the jurisdictions singled out for preclearance. The statute's coverage formula is based on data that is now more than 35 years old, and there is considerable evidence that it fails to account for current political conditions.
Being the great deliberative body that it is, one would think that Congress would hear the chief justice loud and clear and move quickly to amend the coverage formula so that its application addresses problems based on today's reality rather than a formula created some three decades ago. Nope. Between June 22, 2009 (when the court handed down its Northwest Austin) opinion and this week, Congress had done all of nothing to address the concerns the Supreme Court highlighted nearly four years ago. Instead, the solicitor general returned to the court and made… the exact same arguments that acting Solicitor General Neil Katyal made on behalf of the government in 2009.
Suffice to say, Roberts was not pleased. The following exchange pretty much summed up how the argument went for the government:
CHIEF JUSTICE ROBERTS: Do you know which state has the worst ratio of white voter turnout to African American voter turnout?
GENERAL VERRILLI: I do not.
CHIEF JUSTICE ROBERTS: Massachusetts. Do you know what has the best, where African American turnout actually exceeds white turnout? Mississippi.
GENERAL VERRILLI: Yes, Mr. Chief Justice. But Congress recognized that expressly in the findings when it reauthorized the act in 2006. It said that the first generation problems had been largely dealt with, but there persisted significant—
CHIEF JUSTICE ROBERTS: Which state has the greatest disparity in registration between white and African American?
GENERAL VERRILLI: I do not know that.
CHIEF JUSTICE ROBERTS: Massachusetts. Third is Mississippi, where again the African American registration rate is higher than the white registration rate.
And then later…
CHIEF JUSTICE ROBERTS: General [Verrilli], is it the government's submission that the citizens in the South are more racist than citizens in the North?
These questions should not have been surprising. Even many liberals could not bring themselves to try to defend the application formula. Instead, they attempted to avoid the question by claiming that Shelby County (which will likely be covered under any formula) lacks standing (no injury in fact) and, with less enthusiasm, that the court should simply defer to Congress.
The reality is that the system, as presently constituted, is ridiculous. When defenders of the current system talk about "past history of racism," what they are saying, in effect, is that they realize that the system cannot be defended on the metrics, but they nevertheless believe that if the law is struck down, the racist intent of the citizens of the South will come flying forth. Maybe so, but the 10th Amendment enshrines the principle of federalism and, as the chief justice practically shouted at Congress in his Northwest Austin opinion, restrictions on individual states require something more than "well, a lot of racists lived there in the 70s."
Fortunately, the problem is solvable. Congress can do what Roberts suggested in 2009 and amend the formula for determining which states must pre-clear election laws with DOJ. There are a variety of ways to do this, including, to name one example, imposing the requirement on jurisdictions or states that have abnormally low minority registration rates and/or minority voter turnout rates. That fix would restore the protections afforded by Section Five, and would actually improve the law by tying its applicability to states or jurisdictions that discriminate (throughout the nation) rather than generically to states in the South irrespective of actual discrimination.
So if (or, more likely, when) the court strikes down Section Five, don't blame the court. This one is all on Congress, and we should demand that our fine elected leaders do what they should have done nearly four years ago and fix the law so that minority voters remain protected… not just in "the old South," but everywhere that concrete current evidence suggests there is discrimination.
Jeb Golinkin is a 3L at the University of Texas School of Law and writes about U.S. politics and policy for TheWeek.com. From 2008 to 2011, he served as an editor and reporter for Frum Forum/New Majority. Follow him on Twitter (@JGolinkin) and email him at email@example.com.