Last Friday, in the midst of a contentious election season in which many states across the country are restricting the right to vote, the U.S. Court of Appeals for the D.C. Circuit, by a vote of 2-1, upheld the constitutionality of a critical part of the Voting Rights Act, concluding that the 2006 renewal of the Act fell squarely within Congress’ power to enforce the Fourteenth Amendment’s guarantee of the equal protection of the laws and Fifteenth Amendment’s prohibition on racial discrimination in voting.  The opinion of the court in Shelby County, Alabama v. Holder, written by Circuit Judge David Tatel  and joined in full by Judge Thomas Griffith (an appointee of President George W. Bush), echoed arguments made by Constitutional Accountability Center in our “friend of the court” brief, recognizing that the Constitution expressly “entrust[s] Congress with ensuring that the right to vote – surely among the most important guarantees of political liberty in the Constitution – is not abridged on account of race.”  (For more on Congress’ power to enforce the Civil War Amendments, see CAC’s Text and History Narrative, The Shield of National Protection.)  Much as conservative jurist John Bates did in his opinion in this case at the district court level, the D.C. Circuit respectfully considered the arguments for striking down the Act’s requirements raised by Chief Justice Roberts’ opinion for the Supreme Court three years ago in NAMUDNO v. Holder, but concluded that, when Congress used its authority under the Fifteenth Amendment to protect the right to vote, “we owe much deference to the considered judgment of the People’s representatives.” 

Judge Tatel’s opinion for the panel gave a thorough and complete rebuke to Shelby County’s argument that the Voting Rights Act – one of our nation’s most iconic civil rights laws  – is an unjustified affront to state sovereignty imposed on states and local governments.  The panel began with the text and history of the Civil War Amendments, explaining that  the Reconstruction Framers added guarantees of liberty, equality, and the right to vote free from racial discrimination to our foundational charter and gave Congress the broad power to enforce these guarantees.  As the panel explained, “[t]he experience of the nascent republic, divided by slavery, taught that states too could threaten individual liberty.”  In light of this text and history, as well as numerous Supreme Court decisions, Judge Tatel explained that “racial discrimination in voting” is “one of the gravest evils Congress can seek to redress.  When Congress seeks to combat racial discrimination in voting – protecting both the right to be free from discrimination based on race and the right to be free from discrimination in voting . . . – it acts at the apex of its power.”   Indeed, as Judge Tatel noted, the Supreme Court has upheld the Voting Rights Act on four different occasions, and even recent Supreme Court cases that have imposed limits on the power of Congress to enforce constitutional guarantees have affirmed the Voting Rights Act as the quintessential example of appropriate enforcement legislation. 

In upholding the Voting Rights Act, Judge Tatel’s opinion paid very close attention to the Supreme Court’s 2009 ruling in NAMUDNO that had registered serious constitutional concerns about the Act’s preclearance requirement.  Engaging in a “probing” examination of the record while recognizing that, as judges, “we remain bound by fundamental principles of judicial restraint,” the D.C. Circuit majority concluded that the Act fell squarely within Congress’ express power to protect the right to vote free from racial discrimination.  Judge Tatel explained that, given the serious federalism costs discussed by the Supreme Court in NAMUNDO, the constitutionality of the Act depended on whether Congress’ findings established “a pattern of racial discrimination in voting so serious and widespread that case-by-case litigation is inadequate.”  Reviewing the record in abundant detail, the D.C. Circuit concluded, on the basis of Congress’ findings, that this demanding standard had been met.  

Discussing the 15,000-page legislative record developed by Congress, the panel concluded that racial discrimination in voting still plagues those jurisdictions—predominantly in the South – covered by the preclearance requirement.  Judge Tatel’s opinion discussed a number of intentionally discriminatory practices – overt hostility to African American voting power by state officials, redistricting decisions made on the basis of race, closing or relocating polling places and even cancelling elections to deprive African Americans of the right to vote – that still persist in jurisdictions covered by the Act.  The court held that Congress had acted within its broad authority in concluding that preclearance was still necessary to ensure protection for the right to vote free from racial discrimination.  “After thoroughly scrutinizing the record and given that overt racial discrimination persists in covered jurisdictions notwithstanding decades of section 5 preclearance, we . . . are satisfied that Congress’ judgment deserves judicial deference.”

In dissent, Senior Judge Stephen Williams argued that the 2006 renewal of the Voting Rights Act’s preclearance requirement exceeded the scope of Congress’ enforcement power, focusing on the fact that Congress had failed to bring up-to-date the formula used to determine which jurisdictions are covered by the Act.  Calling the formula “obsolete in practice,” Judge Wiliams argued that, given the burdens preclearance imposes on states and local governments, “Congress’s inability to agree on a currently coherent formula is not a good reason for upholding its extension of an anachronism.”  But, as Judge Tatel explained for the majority, the formula was always less important than the jurisdictions it covered.  As he observed, going all the way back to 1965, “Congress identified the jurisdictions it sought to cover – those for which it had ‘evidence of actual voting discrimination’ – and then worked backward, reverse-engineering a formula to cover those jurisdictions.”  Judge Tatel then summarized  the record Congress had amassed showing that racial discrimination in voting continues to plague the covered jurisdictions, supporting the court’s conclusion that the coverage formula “continues to single out the jurisdictions in which discrimination is concentrated.”

Almost immediately, Shelby County vowed to file a petition for writ of certiorari seeking Supreme Court review.  While it is possible the opposing sides will get to reprise their arguments before the High Court, the D.C. Circuit’s ruling demonstrates that the Voting Rights Act is both (1) supported by the Constitution’s text and history, which expressly empowers Congress to protect the right to vote free from racial discrimination, and (2) survives the demanding standard that the Supreme Court has applied to ensure that Congress respects principles of federalism.  Conservative opponents of the Voting Rights Act may hope that the Supreme Court will second-guess Congress’ exercise of its authority to protect the right to vote free from racial discrimination, but the D.C. Circuit’s ruling, joined by G.W. Bush appointee Judge Thomas Griffith, provides a roadmap for the Supreme Court to uphold (rather than strike down) this critical guarantee of our multiracial democracy.