Tagged: Voting Rights; Frank Johnson; Civil Rights; Congressional Enforcement Power; Voting Rights Act


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.