The “Alabama Punting Syndrome” Revisited: Section 5 of the Voting Rights Act and the Problem of Congressional Inattention to “Constitutional Flares”

It’s fall, and the NCAA football season is in full swing. (Obligatory “Roll Tide!” omitted.) My former boss, Judge Frank M. Johnson, Jr., once wrote of the “Alabama Punting Syndrome.” See Frank M. Johnson, Jr., The Alabama Punting Syndrome: When Elected Officials Kick Their Problems to the Courts, Judges Journal, Spring 1979, at 4. By this, he was referring to his frustration with the failure of Alabama state government officials in general, and Governor George C. Wallace in particular, to respond adequately to federal court orders requiring the remediation of unconstitutional conditions in the operation of important state institutions (prisons and mental hospitals). Rather than respond in good faith to orders identifying unconstitutional conditions, the state simply did nothing and “punted” the problem back to the federal courts to resolve.

Judge Johnson, faced with the prospect of either placing important state functions into federal court receivership or permitting Alabama to continue operating state institutions in patently unconstitutional ways, elected to place the state’s prisons and mental hospitals under direct federal court supervision incident to “structural injunctions.” For an excellent discussion of the problem and Judge Johnson’s novel solution, see Owen M. Fiss, The Civil Rights Injunction (1978).

In the case of persistent unconstitutional conditions, doing nothing was simply not an option. Accordingly, when Alabama defaulted on its constitutional duties, the federal court moved to protect and enforce constitutional values. In so doing, to paraphrase Chief Justice John Marshall in Marbury, Judge Johnson ensured that where there was a constitutional right, there would be an effective remedy. At the same time, however, Judge Johnson was deeply ambivalent about federalizing important state functions; he would very much have preferred that state government officials address the constitutional problems in the day-to-day operation of the state’s prisons and mental hospitals directly and in good faith. In other words, one would be mistaken to think that Judge Johnson wanted the ball back. In fact, he firmly believed that state government officials had a duty to implement, in good faith, a lawful federal court order requiring remedial measures.

The contemporary Congress appears to have taken a page from the Alabama state government of the 1960s and 1970s. By this, I mean that Congress has “punted” important questions that will force federal courts to ask and answer questions that many federal judges would rather avoid. More specifically, I am speaking of the Supreme Court’s recent grant of a writ of certiorari in Shelby County v. Holder, No. 96-12, to consider the constitutional status of section 5 of the Voting Rights Act of 1965.

Section 5 requires covered jurisdictions to pre-clear any changes in state voting procedures with the Department of Justice; in order to become a covered jurisdiction, the Department of Justice must demonstrate a prior history of denying or abridging minority citizens’ voting rights within the jurisdiction. Section 5 is a bit like the “Hotel California” in that “you can check out, but you can never leave.” To be sure, there is a statutory provision for escaping “covered jurisdiction” status (section 4 of the Voting Rights Act), but it requires a high standard of proof and relatively few covered jurisdictions have succeed in meeting it. Meanwhile, legal and social conditions in 2012, although far from perfect, are plainly quite different than they were in 1965. (Recall that the events associated with the Selma-to-Montgomery March, of March 1965, served as a direct impetus for enactment of the Voting Rights Act.) The question that the Supreme Court will decide boils down to this: are conditions in 2012 sufficiently similar to conditions in 1965, such that requiring covered jurisdictions to seek and obtain federal approval for any changes in voting rules and procedures constitutes a justifiable policy to prevent violations of constitutionally protect voting rights?

Current case law, under City of Boerne v. Flores, 521 U.S. 507 (1997), and Board of Trustees v. Garrett, 531 U.S. 356 (2001), requires that enforcement legislation aimed at preventing violations of the Fourteenth and Fifteenth Amendments be “proportional and congruent” to the risk of future bad behavior by state governments. To over-prevent is to cease “enforcing” the substantive provision and instead to rewrite the substance of a constitutional right. If section 5 no longer addresses probable constitutional violations that would otherwise occur, the provision isn’t congruent under the logic of the Boerne/Garrett line of precedents.

In Northwest Austin Utility District No. 1 v. Holder, 557 U.S. 193 (2009), the Supreme Court dodged the question of whether changes in contemporary state behavior rendered the section 5 preclearance procedure overbroad – i.e., whether it seeks to prevent constitutional violations would otherwise exist in the absence of section 5. Chief Justice Roberts, writing for the majority, noted that “[i]t may be that these improvements [in securing equal voting rights] 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.” Id. at 203. He added that “[t]he 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.” Id. Thus, the Supreme Court put Congress on very clear notice that, if it wanted to see section 5 sustained as a permissible means of preventing constitutional violations, it needed to do a better job of documenting that section 5’s scope of coverage remained plausibly necessary with respect to covered jurisdictions.

Now, more than three years later, the other shoe appears ready to drop. In Shelby County v. Holder, the Supreme Court appears poised to squarely decide whether section 5 remains a proportional and congruent remedy to enforce the Fifteenth Amendment.

In light of the clear warning issued in Northwest Austin Utility District No. 1, at a minimum, some sort of fact finding about contemporary efforts to suppress minority citizens’ voting rights would seem to have been requisite. Better still, Congress could have considered amending section 4, the provision that releases covered jurisdictions from continuing federal oversight of changes in voting procedures (by liberalizing it). Some conservative members of the Supreme Court would probably prefer an even stronger second look; perhaps something like a requirement that the Department of Justice renew de novo its proof that a particular jurisdiction needs active federal supervision of its electoral machinery to avoid future constitutional violations. The Supreme Court’s cases on releasing local school districts from desegregation orders (and concomitant continuing federal court supervision) could provide some useful guideposts regarding precisely what the Justices in the conservative majority likely have in mind.

What has Congress done? Precisely nothing. Even if Congress is not much inclined to modify sections 4 or 5 of the Voting Rights Act, it might at least have considered taking the hint, if only to show that it acknowledged and credited the “constitutional flare” sent up by the Supreme Court in Northwest Austin Utility District No. 1. (On “constitutional flares,” see Krotoszynski, Constitutional Flares: On Judges, Legislatures, and Dialog, 83 Minn. L. Rev. 1 (1998).)

To be clear, I am not claiming that section 5 has clearly done its work and that no contemporary need for such a statutory provision exists. Nor am I saying that the provision is plainly needed in 2012. Rather, I am positing that, if advocates of section 5 in Congress wish to see the provision sustained as still proportional and congruent to a contemporary constitutional problem, they should have taken the time and trouble to respond in some meaningful way to the Court’s concerns – concerns expressed over three years ago in June 2009.

In my view, ignoring the Supreme Court’s clear constitutional warning constitutes a kind of “Alabama punting syndrome.” When federal courts offer a clear warning that a government policy appears to suffer from constitutional defects, the executive and legislative branches should bestir themselves to action – at least if they want the Supreme Court to sustain the statutory provision or policy in question going forward. In the case of the Voting Rights Act, Congress has punted, and this fact is going to make it much harder for the Solicitor General to convince a majority of the Supreme Court – and Justice Kennedy in particular – to vote to sustain the continuing validity of section 5.

I am quite confident that a good argument in favor of the continuing need for section 5 could be made, but Congress has failed to make it (at least to date). Moreover, I seriously doubt that the Supreme Court’s conservative majority will be willing to credit arguments from the executive branch set forth in legal briefs to the Court. Even if Congress is not much inclined to amend section 5, it should, at a minimum, craft a contemporary record of state and local government behavior that demonstrates the continuing need for strong federal medicine to prevent state governments from engaging in unconstitutional efforts to suppress voting rights. Instead, Congress has punted, and the Supreme Court is likely to respond by simply invalidating section 5 of the Voting Rights Act.

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8 Responses

  1. Adam says:

    “It’s fall, and the NCAA football season is in full swing. (Obligatory “Roll Tide!” omitted.)”

    I see this was written before this weekend.

  2. Brett Bellmore says:

    A possible problem here is that the Justice department has been refusing to pre-clear some things, like voter ID, that the Supreme court has already ruled constitutional. While Congress *does* have the power to bar some constitutional election related practices by the states, (Think literacy tests.) it doesn’t help the case if it looks like pre-clearance is being used abusively.

  3. Joe says:

    “Think literary tests.”

    The USSC upheld literary tests too. The issue here is that in a specific context, not in all cases, an otherwise neutral law might be used in a way that furthers discrimination.

    The USSC upheld a facial challenge of a specific voter id law. There are various types of voter id laws. The USSC left open the chance an as applied challenge of even the specific law in question might be successful. Another voter id, particularly one (unlike there) where more evidence was present of problems would particularly not be necessarily valid.

    The legislation in question, via a lot of congressional fact finding plus some history, determines that specific areas of the country warrant a special burden be met, with examination by the executive to weigh the evidence as is often done. I’m not seen the “abuse” yet.

  4. Joe says:

    “bestir themselves to action”

    How often do legislatures actually do this with all due respect to the USSC? Also, the Holder case was three years ago. That isn’t exactly that long ago as legislative things go, particularly the U.S. Congress.

    The “proportional and congruent” rule first was used in Boerne to point out that a nation-wide law that in effect countermanded a USSC case to deal with a limited number of wrongs was not sound. The law at issue here was passed pre-Holder; it was not in the teeth of direct precedent on the question or even a case that gave a broad hint the specific matter was on thin ice.

    There was loads of material submitted to back up the re-authorization. It passed by a supermajority. This is somewhat novel for such a major piece of legislation so it is not surprising that Congress did not “bestir” itself to amend it and be forced to deal with a lot of controversial ongoing controversies instead of taking the conservative path of reauthorizing what was in place already. One that put forth a reasonable argument.

    The opt out measure IS there even if “relatively few” successfully managed it. I’m not sure how much change from 1965 should be enough. Maybe, duly elected individuals and administrations are the best people to determine that given problems (see the record to the law) continue.

    I think ideally the law should be expanded, see problems in Ohio, but it probably could have been deemed underinclusive back in 1965 too. Legislation is imperfect. Maybe, the case will nudge Congress to update things. That might be ideal. And, the supermajority that passed it the last time around (though the situation in Congress is not quite the same) might lead to some optimism. I guess.

  5. Brett Bellmore says:

    Yes, it might be; In the case of literacy tests, the problem was that they weren’t being honestly administered. (IIRC) You could be a black scholar and fail one, most places.

    It’s not impossible that Voter ID laws could be administered in a discriminatory manner, too. But it doesn’t appear to me that Justice department decisions on preclearance are being predicated on that issue, but instead on whether the state policies conform to administration preferences.

    That’s arguably a kind of abuse, for a law supposedly intended to prevent discrimination, not merely to permit the President to dictate state election laws.

  6. Joe says:

    “It doesn’t appear to me that Justice department decisions on preclearance are being predicated on that issue, but instead on whether the state policies conform to administration preferences.”

    “Administrative preferences” = judgment that such and such a law in practice would be discriminatory. Let’s take South Carolina:

    “Officials in DOJ’s Civil Rights Division found a significant racial disparity in the data provided by South Carolina, which must have changes to its election laws precleared under Section 5 of the Voting Rights Act, because of past history of discrimination.” [etc.]

    We can debate the facts here but that is the argument and as in some other case, some administration might weigh everything differently, but that is the nature of agency discretion etc. — who is in power matters.

    I still don’t see the “abuse.”

    The concern for any number of voting regulations was and is that in practice they would not be applied honestly. Selectively, concern for “fraud,” e.g., would be in place. So that absentee ballots (often favoring Republicans) would be accepted, while far and in between in person voting fraud would require picture id. And the result would burden the certain voters various constitutional provisions particularly are concerned about.

    Literary tests and other types might not have the exact same concerns, but the general principle is similar.

  7. Brett Bellmore says:

    The question is whether 5 members of the Supreme court are going to agree that disparate impact really qualifies a law as “discriminatory” if it is both facially neutral, and honestly administered. That kind of reasoning leaves very few laws NOT “discriminatory”, after all.

    I see no basis for being confident about it in either direction.

  8. Joe says:

    The fact the five members of the USSC disagrees with the executive, at times via opinions that in fact set forth new law (e.g., as Citizens United did, overturning a previous precedent) doesn’t tell me where the “abuse” is either.

    Changing decades worth of voting law in this area is quite possible, but again, not “abuse” for the President or others to follow the existing path, particularly since disparate impact as a red flag was a core reason for the preclearance rule in the first place. Each law wasn’t facially discriminatory but in practice discriminatory application occurred.