SHELBY COUNTY v. HOLDER
The Fourteenth Amendment protects every person’s right to due process of law. The Fifteenth Amendment protects citizens from having their right to vote abridged or denied due to “race, color, or previous condition of servitude.” The Tenth Amendment reserves all rights not expressly granted to the federal government to the individual states. Article Four of the Constitution guarantees the right of self-government for each state.
The Civil Rights Act of 1965 was enacted as a response to the nearly century-long history of voting discrimination. Section 5 prohibits eligible districts from enacting changes to their election laws and procedures without gaining official authorization. Section 4(b) defines the eligible districts as ones that had a voting test in place as of November 1, 1964 and less than 50% turnout for the 1964 presidential election. Such districts must prove to the Attorney General or a three-judge panel of a Washington, D.C. district court that the change “neither has the purpose nor will have the effect” of negatively impacting any individual’s right to vote based on race or minority status. Section 5 was originally enacted for five years, but has been continually renewed since that time.
Shelby County, Alabama, filed suit in district court and sought both a declaratory judgment that Section 5 and Section 4(b) are unconstitutional and a permanent injunction against their enforcement. The district court upheld the constitutionality of the Sections and granted summary judgment for the Attorney General. The U.S. Court of Appeals for the District of Columbia Circuit held that Congress did not exceed its powers by reauthorizing Section 5 and that Section 4(b) is still relevant to the issue of voting discrimination.
Does the renewal of Section 5 of the Voter Rights Act under the constraints of Section 4(b) exceed Congress’ authority under the Fourteenth and Fifteenth Amendments, and therefore violate the Tenth Amendment and Article Four of the Constitution?
Legal provision: Voting Rights Act of 1965
Yes, Section 4 of the Voting Rights Act is unconstitutional. Chief Justice John G. Roberts, Jr. delivered the opinion of the 5-4 majority. The Court held that Section 4 of the Voting Rights Act imposes current burdens that are no longer responsive to the current conditions in the voting districts in question. Although the constraints this section places on specific states made sense in the 1960s and 1970s, they do not any longer and now represent an unconstitutional violation of the power to regulate elections that the Constitution reserves for the states. The Court also held that the formula for determining whether changes to a state’s voting procedure should be federally reviewed is now outdated and does not reflect the changes that have occurred in the last 50 years in narrowing the voting turnout gap in the states in question.
In his concurring opinion, Justice Clarence Thomas argued that Section 5 of the Voting Rights Act is unconstitutional in addition to Section 4. He wrote that the blatant discrimination against certain voters that Section 5 was intended to prohibit is no longer evident. Without such extraordinary circumstances, Congress cannot constitutionally justify placing the burden of Section 5 on the states in question.
Justice Ruth Bader Ginsburg wrote a dissent in which she argued that Congress’ power to enforce the Fourteenth and Fifteenth Amendments encompasses legislative action such as the Voting Rights Act. The legislative history and text of the Amendments as well as previous judicial precedent support Congress’ authority to enact legislation that specifically targets potential state abuses. However, Congress does not have unlimited authority but must show that the means taken rationally advance a legitimate objective, as is the case with the Voting Rights Act. The evidence Congress gathered to determine whether to renew the Voting Rights Act sufficiently proved that there was still a current need to justify the burdens placed on the states in question. She also argued that, by holding Section 4 unconstitutional, the majority’s opinion makes it impossible to effectively enforce Section 5. Justice Stephen G. Breyer, Justice Sonia Sotomayor, and Justice Elena Kagan joined in the dissent.
NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
SHELBY COUNTY, ALABAMA, PETITIONER v. ERIC H. HOLDER, Jr., ATTORNEY GENERAL, et al.
on writ of certiorari to the united states court of appeals for the district of columbia circuit
[June 25, 2013]
Chief Justice Roberts delivered the opinion of the Court.
The Voting Rights Act of 1965 employed extraordinary measures to address an extraordinary problem. Section 5 of the Act required States to obtain federal permission before enacting any law related to voting—a drastic departure from basic principles of federalism. And §4 of the Act applied that requirement only to some States—an equally dramatic departure from the principle that all States enjoy equal sovereignty. This was strong medicine, but Congress determined it was needed to address entrenched racial discrimination in voting, “an insidious and pervasive evil which had been perpetuated in certain parts of our country through unremitting and ingenious defiance of the Constitution.” South Carolina v. Katzenbach, 383 U. S. 301, 309 (1966) . As we explained in upholding the law, “exceptional conditions can justify legislative measures not otherwise appropriate.” Id., at 334. Reflecting the unprecedented nature of these measures, they were scheduled to expire after five years. See Voting Rights Act of 1965, §4(a), 79Stat. 438.
Nearly 50 years later, they are still in effect; indeed, they have been made more stringent, and are now scheduled to last until 2031. There is no denying, however, that the conditions that originally justified these measures no longer characterize voting in the covered jurisdictions. By 2009, “the racial gap in voter registration and turnout [was] lower in the States originally covered by §5 than it [was] nationwide.” Northwest Austin Municipal Util. Dist. No. One v. Holder, 557 U. S. 193 –204 (2009). Since that time, Census Bureau data indicate that African-American voter turnout has come to exceed white voter turnout in five of the six States originally covered by §5, with a gap in the sixth State of less than one half of one percent. See Dept. of Commerce, Census Bureau, Re-ported Voting and Registration, by Sex, Race and His-panic Origin, for States (Nov. 2012) (Table 4b).
At the same time, voting discrimination still exists; no one doubts that. The question is whether the Act’s extraordinary measures, including its disparate treatment of the States, continue to satisfy constitutional requirements. As we put it a short time ago, “the Act imposes current burdens and must be justified by current needs.” Northwest Austin, 557 U. S., at 203.I A
The Fifteenth Amendment was ratified in 1870, in the wake of the Civil War. It provides that “[t]he right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude,” and it gives Congress the “power to enforce this article by appropriate legislation.”
“The first century of congressional enforcement of the Amendment, however, can only be regarded as a failure.” Id., at 197. In the 1890s, Alabama, Georgia, Louisiana, Mississippi, North Carolina, South Carolina, and Virginia began to enact literacy tests for voter registration and to employ other methods designed to prevent African-Americans from voting. Katzenbach, 383 U. S., at 310. Congress passed statutes outlawing some of these practices and facilitating litigation against them, but litigation remained slow and expensive, and the States came up with new ways to discriminate as soon as existing ones were struck down. Voter registration of African-Americans barely improved. Id., at 313–314.
Inspired to action by the civil rights movement, Congress responded in 1965 with the Voting Rights Act. Section 2 was enacted to forbid, in all 50 States, any “standard, practice, or procedure . . . imposed or applied . . . to deny or abridge the right of any citizen of the United States to vote on account of race or color.” 79Stat. 437. The current version forbids any “standard, practice, or procedure” that “results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color.” 42 U. S. C. §1973(a). Both the Federal Government and individuals have sued to enforce §2, see, e.g., Johnson v. De Grandy, 512 U. S. 997 (1994) , and injunctive relief is available in appropriate cases to block voting laws from going into effect, see 42 U. S. C. §1973j(d). Section 2 is permanent, applies nationwide, and is not at issue in this case.
Other sections targeted only some parts of the country. At the time of the Act’s passage, these “covered” jurisdictions were those States or political subdivisions that had maintained a test or device as a prerequisite to voting as of November 1, 1964, and had less than 50 percent voter registration or turnout in the 1964 Presidential election. §4(b), 79Stat. 438. Such tests or devices included literacy and knowledge tests, good moral character requirements, the need for vouchers from registered voters, and the like. §4(c), id., at 438–439. A covered jurisdiction could “bail out” of coverage if it had not used a test or device in the preceding five years “for the purpose or with the effect of denying or abridging the right to vote on account of race or color.” §4(a), id., at 438. In 1965, the covered States included Alabama, Georgia, Louisiana, Mississippi, South Carolina, and Virginia. The additional covered subdivisions included 39 counties in North Carolina and one in Arizona. See 28 CFR pt. 51, App. (2012).
In those jurisdictions, §4 of the Act banned all such tests or devices. §4(a), 79Stat. 438. Section 5 provided that no change in voting procedures could take effect until it was approved by federal authorities in Washington, D. C.—either the Attorney General or a court of three judges. Id., at 439. A jurisdiction could obtain such “preclearance” only by proving that the change had neither “the purpose [nor] the effect of denying or abridging the right to vote on account of race or color.” Ibid.
Sections 4 and 5 were intended to be temporary; they were set to expire after five years. See §4(a), id., at 438; Northwest Austin, supra, at 199. In South Carolina v. Katzenbach, we upheld the 1965 Act against constitutional challenge, explaining that it was justified to address “voting discrimination where it persists on a pervasive scale.” 383 U. S., at 308.
In 1970, Congress reauthorized the Act for another five years, and extended the coverage formula in §4(b) to jurisdictions that had a voting test and less than 50 percent voter registration or turnout as of 1968. Voting Rights Act Amendments of 1970, §§3–4, 84Stat. 315. That swept in several counties in California, New Hampshire, and New York. See 28 CFR pt. 51, App. Congress also extended the ban in §4(a) on tests and devices nationwide. §6, 84Stat. 315.
In 1975, Congress reauthorized the Act for seven more years, and extended its coverage to jurisdictions that had a voting test and less than 50 percent voter registration or turnout as of 1972. Voting Rights Act Amendments of 1975, §§101, 202, 89Stat. 400, 401. Congress also amended the definition of “test or device” to include the practice of providing English-only voting materials in places where over five percent of voting-age citizens spoke a single language other than English. §203, id., at 401–402. As a result of these amendments, the States of Alaska, Arizona, and Texas, as well as several counties in California, Flor-ida, Michigan, New York, North Carolina, and South Da-kota, became covered jurisdictions. See 28 CFR pt. 51, App. Congress correspondingly amended sections 2 and 5 to forbid voting discrimination on the basis of membership in a language minority group, in addition to discrimination on the basis of race or color. §§203, 206, 89Stat. 401, 402. Finally, Congress made the nationwide ban on tests and devices permanent. §102, id., at 400.
In 1982, Congress reauthorized the Act for 25 years, but did not alter its coverage formula. See Voting Rights Act Amendments, 96Stat. 131. Congress did, however, amend the bailout provisions, allowing political subdivisions of covered jurisdictions to bail out. Among other prerequisites for bailout, jurisdictions and their subdivisions must not have used a forbidden test or device, failed to receive preclearance, or lost a §2 suit, in the ten years prior to seeking bailout. §2, id., at 131–133.
We upheld each of these reauthorizations against constitutional challenge. See Georgia v. United States, 411 U. S. 526 (1973) ; City of Rome v. United States, 446 U. S. 156 (1980) ; Lopez v. Monterey County, 525 U. S. 266 (1999) .
In 2006, Congress again reauthorized the Voting Rights Act for 25 years, again without change to its coverage formula. Fannie Lou Hamer, Rosa Parks, and Coretta Scott King Voting Rights Act Reauthorization and Amend-ments Act, 120Stat. 577. Congress also amended §5 to prohibit more conduct than before. §5, id., at 580– 581; see Reno v. Bossier Parish School Bd., 528 U. S. 320, 341 (2000) (Bossier II); Georgia v. Ashcroft, 539 U. S. 461, 479 (2003) . Section 5 now forbids voting changes with “any discriminatory purpose” as well as voting changes that diminish the ability of citizens, on account of race, color, or language minority status, “to elect their preferred candidates of choice.” 42 U. S. C. §§1973c(b)–(d).
Shortly after this reauthorization, a Texas utility district brought suit, seeking to bail out from the Act’s coverage and, in the alternative, challenging the Act’s constitutionality. See Northwest Austin, 557 U. S., at 200–201. A three-judge District Court explained that only a State or political subdivision was eligible to seek bailout under the statute, and concluded that the utility district was not a political subdivision, a term that encompassed only “counties, parishes, and voter-registering subunits.” Northwest Austin Municipal Util. Dist. No. One v. Mukasey, 573 F. Supp. 2d 221, 232 (DC 2008). The District Court also rejected the constitutional challenge. Id., at 283.
We reversed. We explained that “ ‘normally the Court will not decide a constitutional question if there is some other ground upon which to dispose of the case.’ ” Northwest Austin, supra, at 205 (quoting Escambia County v. McMillan, 466 U. S. 48, 51 (1984) (per curiam)). Concluding that “underlying constitutional concerns,” among other things, “compel[led] a broader reading of the bailout provision,” we construed the statute to allow the utility district to seek bailout. Northwest Austin, 557 U. S., at 207. In doing so we expressed serious doubts about the Act’s con-tinued constitutionality.
We explained that §5 “imposes substantial federalism costs” and “differentiates between the States, despite our historic tradition that all the States enjoy equal sovereignty.” Id., at 202, 203 (internal quotation marks omitted). We also noted that “[t]hings have changed in the South. Voter turnout and registration rates now approach parity. Blatantly discriminatory evasions of federal decrees are rare. And minority candidates hold office at unprece-dented levels.” Id., at 202. Finally, we questioned whether the problems that §5 meant to address were still “concentrated in the jurisdictions singled out for preclearance.” Id., at 203.
Eight Members of the Court subscribed to these views, and the remaining Member would have held the Act unconstitutional. Ultimately, however, the Court’s construction of the bailout provision left the constitutional issues for another day.B
Shelby County is located in Alabama, a covered jurisdiction. It has not sought bailout, as the Attorney General has recently objected to voting changes proposed from within the county. See App. 87a–92a. Instead, in 2010, the county sued the Attorney General in Federal District Court in Washington, D. C., seeking a declaratory judgment that sections 4(b) and 5 of the Voting Rights Act are facially unconstitutional, as well as a permanent injunction against their enforcement. The District Court ruled against the county and upheld the Act. 811 F. Supp. 2d 424, 508 (2011). The court found that the evidence before Congress in 2006 was sufficient to justify reauthorizing §5 and continuing the §4(b) coverage formula.
The Court of Appeals for the D. C. Circuit affirmed. In assessing §5, the D. C. Circuit considered six primary categories of evidence: Attorney General objections to voting changes, Attorney General requests for more information regarding voting changes, successful §2 suits in covered jurisdictions, the dispatching of federal observers to monitor elections in covered jurisdictions, §5 preclearance suits involving covered jurisdictions, and the deterrent effect of §5. See 679 F. 3d 848, 862–863 (2012). After extensive analysis of the record, the court accepted Congress’s conclusion that §2 litigation remained inadequate in the covered jurisdictions to protect the rights of minority voters, and that §5 was therefore still necessary. Id., at 873.
Turning to §4, the D. C. Circuit noted that the evidence for singling out the covered jurisdictions was “less robust” and that the issue presented “a close question.” Id., at 879. But the court looked to data comparing the number of successful §2 suits in the different parts of the country. Coupling that evidence with the deterrent effect of §5, the court concluded that the statute continued “to single out the jurisdictions in which discrimination is concentrated,” and thus held that the coverage formula passed constitutional muster. Id., at 883.
Judge Williams dissented. He found “no positive cor-relation between inclusion in §4(b)’s coverage formula and low black registration or turnout.” Id., at 891. Rather, to the extent there was any correlation, it actually went the other way: “condemnation under §4(b) is a marker of higher black registration and turnout.” Ibid. (emphasis added). Judge Williams also found that “[c]overed jurisdictions have far more black officeholders as a proportion of the black population than do uncovered ones.” Id., at 892. As to the evidence of successful §2 suits, Judge Williams disaggregated the reported cases by State, and concluded that “[t]he five worst uncovered jurisdictions . . . have worse records than eight of the covered jurisdictions.” Id., at 897. He also noted that two covered jurisdictions—Arizona and Alaska—had not had any successful reported §2 suit brought against them during the entire 24 years covered by the data. Ibid. Judge Williams would have held the coverage formula of §4(b) “irrational” and unconstitutional. Id., at 885.
We granted certiorari. 568 U. S. ___ (2012).II
In Northwest Austin, we stated that “the Act imposes current burdens and must be justified by current needs.” 557 U. S., at 203. And we concluded that “a 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.” Ibid. These basic principles guide our review of the question before us. 1A
The Constitution and laws of the United States are “the supreme Law of the Land.” U. S. Const., Art. VI, cl. 2. State legislation may not contravene federal law. The Federal Government does not, however, have a general right to review and veto state enactments before they go into effect. A proposal to grant such authority to “negative” state laws was considered at the Constitutional Convention, but rejected in favor of allowing state laws to take effect, subject to later challenge under the Supremacy Clause. See 1 Records of the Federal Convention of 1787, pp. 21, 164–168 (M. Farrand ed. 1911); 2 id., at 27–29, 390–392.
Outside the strictures of the Supremacy Clause, States retain broad autonomy in structuring their governments and pursuing legislative objectives. Indeed, the Constitution provides that all powers not specifically granted to the Federal Government are reserved to the States or citizens. Amdt. 10. This “allocation of powers in our federal system preserves the integrity, dignity, and residual sovereignty of the States.” Bond v. United States, 564 U. S. ___, ___ (2011) (slip op., at 9). But the federal balance “is not just an end in itself: Rather, federalism secures to citizens the liberties that derive from the diffusion of sovereign power.” Ibid. (internal quotation marks omitted).
More specifically, “ ‘the Framers of the Constitution intended the States to keep for themselves, as provided in the Tenth Amendment, the power to regulate elections.’ ” Gregory v. Ashcroft, 501 U. S. 452 –462 (1991) (quoting Sugarman v. Dougall, 413 U. S. 634, 647 (1973) ; some internal quotation marks omitted). Of course, the Federal Government retains significant control over federal elections. For instance, the Constitution authorizes Congress to establish the time and manner for electing Senators and Representatives. Art. I, §4, cl. 1; see also Arizona v. Inter Tribal Council of Ariz., Inc., ante, at 4–6. But States have “broad powers to determine the conditions under which the right of suffrage may be exercised.” Carrington v. Rash, 380 U. S. 89, 91 (1965) (internal quotation marks omitted); see also Arizona, ante, at 13–15. And “[e]ach State has the power to prescribe the qualifications of its officers and the manner in which they shall be chosen.” Boyd v. Nebraska ex rel. Thayer, 143 U. S. 135, 161 (1892) . Drawing lines for congressional districts is likewise “primarily the duty and responsibility of the State.” Perry v. Perez, 565 U. S. ___, ___ (2012) (per curiam) (slip op., at 3) (internal quotation marks omitted).
Not only do States retain sovereignty under the Constitution, there is also a “fundamental principle of equal sovereignty” among the States. Northwest Austin, supra, at 203 (citing United States v. Louisiana, 363 U. S. 1, 16 (1960) ; Lessee of Pollard v. Hagan, 3 How. 212, 223 (1845); and Texas v. White, 7 Wall. 700, 725–726 (1869); emphasis added). Over a hundred years ago, this Court explained that our Nation “was and is a union of States, equal in power, dignity and authority.” Coyle v. Smith, 221 U. S. 559, 567 (1911) . Indeed, “the constitutional equality of the States is essential to the harmonious operation of the scheme upon which the Republic was organized.” Id., at 580. Coyle concerned the admission of new States, and Katzenbach rejected the notion that the principle operated as a bar on differential treatment outside that context. 383 U. S., at 328–329. At the same time, as we made clear in Northwest Austin, the fundamental principle of equal sovereignty remains highly pertinent in assessing subsequent disparate treatment of States. 557 U. S., at 203.
The Voting Rights Act sharply departs from these basic principles. It suspends “all changes to state election law—however innocuous—until they have been precleared by federal authorities in Washington, D. C.” Id., at 202. States must beseech the Federal Government for permission to implement laws that they would otherwise have the right to enact and execute on their own, subject of course to any injunction in a §2 action. The Attorney General has 60 days to object to a preclearance request, longer if he requests more information. See 28 CFR §§51.9, 51.37. If a State seeks preclearance from a three-judge court, the process can take years.
And despite the tradition of equal sovereignty, the Act applies to only nine States (and several additional counties). While one State waits months or years and expends funds to implement a validly enacted law, its neighbor can typically put the same law into effect immediately, through the normal legislative process. Even if a noncovered jurisdiction is sued, there are important differences between those proceedings and preclearance proceedings; the preclearance proceeding “not only switches the burden of proof to the supplicant jurisdiction, but also applies substantive standards quite different from those governing the rest of the nation.” 679 F. 3d, at 884 (Williams, J., dissenting) (case below).
All this explains why, when we first upheld the Act in 1966, we described it as “stringent” and “potent.” Katzenbach, 383 U. S., at 308, 315, 337. We recognized that it “may have been an uncommon exercise of congressional power,” but concluded that “legislative measures not oth-erwise appropriate” could be justified by “exceptional con-ditions.” Id., at 334. We have since noted that the Act “authorizes federal intrusion into sensitive areas of state and local policymaking,” Lopez, 525 U. S., at 282, and represents an “extraordinary departure from the traditional course of relations between the States and the Federal Government,” Presley v. Etowah County Comm’n, 502 U. S. 491 –501 (1992). As we reiterated in Northwest Austin, the Act constitutes “extraordinary legislation otherwise unfamiliar to our federal system.” 557 U. S., at 211.B
In 1966, we found these departures from the basic features of our system of government justified. The “blight of racial discrimination in voting” had “infected the electoral process in parts of our country for nearly a century.” Katzenbach, 383 U. S., at 308. Several States had enacted a variety of requirements and tests “specifically designed to prevent” African-Americans from voting. Id., at 310. Case-by-case litigation had proved inadequate to prevent such racial discrimination in voting, in part because States “merely switched to discriminatory devices not covered by the federal decrees,” “enacted difficult new tests,” or simply “defied and evaded court orders.” Id., at 314. Shortly before enactment of the Voting Rights Act, only 19.4 percent of African-Americans of voting age were registered to vote in Alabama, only 31.8 percent in Louisiana, and only 6.4 percent in Mississippi. Id., at 313. Those figures were roughly 50 percentage points or more below the figures for whites. Ibid.
In short, we concluded that “[u]nder the compulsion of these unique circumstances, Congress responded in a permissibly decisive manner.” Id., at 334, 335. We also noted then and have emphasized since that this extra-ordinary legislation was intended to be temporary, set to expire after five years. Id., at 333; Northwest Austin, supra, at 199.
At the time, the coverage formula—the means of linking the exercise of the unprecedented authority with the problem that warranted it—made sense. We found that “Congress chose to limit its attention to the geographic areas where immediate action seemed necessary.” Katzenbach, 383 U. S., at 328. The areas where Congress found “evidence of actual voting discrimination” shared two characteristics: “the use of tests and devices for voter registration, and a voting rate in the 1964 presidential election at least 12 points below the national average.” Id., at 330. We explained that “[t]ests and devices are relevant to voting discrimination because of their long history as a tool for perpetrating the evil; a low voting rate is pertinent for the obvious reason that widespread disenfranchisement must inevitably affect the number of actual voters.” Ibid. We therefore concluded that “the coverage formula [was] rational in both practice and theory.” Ibid. It accurately reflected those jurisdictions uniquely characterized by voting discrimination “on a pervasive scale,” linking coverage to the devices used to effectuate discrimination and to the resulting disenfranchisement. Id., at 308. The formula ensured that the “stringent remedies [were] aimed at areas where voting discrimination ha[d] been most flagrant.” Id., at 315.C
Nearly 50 years later, things have changed dramati-cally. Shelby County contends that the preclearance re-quirement, even without regard to its disparate coverage, is now unconstitutional. Its arguments have a good deal of force. In the covered jurisdictions, “[v]oter turnout and registration rates now approach parity. Blatantly discriminatory evasions of federal decrees are rare. And minority candidates hold office at unprecedented levels.” Northwest Austin, 557 U. S., at 202. The tests and devices that blocked access to the ballot have been forbidden nationwide for over 40 years. See §6, 84Stat. 315; §102, 89Stat. 400.
Those conclusions are not ours alone. Congress said the same when it reauthorized the Act in 2006, writing that “[s]ignificant progress has been made in eliminating first generation barriers experienced by minority voters, including increased numbers of registered minority voters, minority voter turnout, and minority representation in Congress, State legislatures, and local elected offices.” §2(b)(1), 120Stat. 577. The House Report elaborated that “the number of African-Americans who are registered and who turn out to cast ballots has increased significantly over the last 40 years, particularly since 1982,” and noted that “[i]n some circumstances, minorities register to vote and cast ballots at levels that surpass those of white voters.” H. R. Rep. No. 109–478, p. 12 (2006). That Report also explained that there have been “significant increases in the number of African-Americans serving in elected offices”; more specifically, there has been approximately a 1,000 percent increase since 1965 in the number of African-American elected officials in the six States originally covered by the Voting Rights Act. Id., at 18.
The following chart, compiled from the Senate and House Reports, compares voter registration numbers from 1965 to those from 2004 in the six originally covered States. These are the numbers that were before Congress when it reauthorized the Act in 2006:
See S. Rep. No. 109–295, p. 11 (2006); H. R. Rep. No. 109–478, at 12. The 2004 figures come from the Census Bureau. Census Bureau data from the most recent election indicate that African-American voter turnout exceeded white voter turnout in five of the six States originally covered by §5, with a gap in the sixth State of less than one half of one percent. See Dept. of Commerce, Census Bureau, Reported Voting and Registration, by Sex, Race and Hispanic Origin, for States (Table 4b). The preclearance statistics are also illuminating. In the first decade after enactment of §5, the Attorney General objected to 14.2 percent of proposed voting changes. H. R Rep. No. 109–478, at 22. In the last decade before reenactment, the Attorney General objected to a mere 0.16 percent. S. Rep. No. 109–295, at 13.
There is no doubt that these improvements are in large part because of the Voting Rights Act. The Act has proved immensely successful at redressing racial discrimination and integrating the voting process. See §2(b)(1), 120Stat. 577. During the “Freedom Summer” of 1964, in Philadelphia, Mississippi, three men were murdered while working in the area to register African-American voters. See United States v. Price, 383 U. S. 787, 790 (1966) . On “Bloody Sunday” in 1965, in Selma, Alabama, police beat and used tear gas against hundreds marching in support of African-American enfranchisement. See Northwest Austin, supra, at 220, n. 3 (Thomas, J., concurring in judgment in part and dissenting in part). Today both of those towns are governed by African-American mayors. Problems remain in these States and others, but there is no denying that, due to the Voting Rights Act, our Nation has made great strides.
Yet the Act has not eased the restrictions in §5 or narrowed the scope of the coverage formula in §4(b) along the way. Those extraordinary and unprecedented features were reauthorized—as if nothing had changed. In fact, the Act’s unusual remedies have grown even stronger. When Congress reauthorized the Act in 2006, it did so for another 25 years on top of the previous 40—a far cry from the initial five-year period. See 42 U. S. C. §1973b(a)(8). Congress also expanded the prohibitions in §5. We had previously interpreted §5 to prohibit only those redistricting plans that would have the purpose or effect of worsening the position of minority groups. See Bossier II, 528 U. S., at 324, 335–336. In 2006, Congress amended §5 to prohibit laws that could have favored such groups but did not do so because of a discriminatory purpose, see 42 U. S. C. §1973c(c), even though we had stated that such broadening of §5 coverage would “exacerbate the substantial federalism costs that the preclearance procedure already exacts, perhaps to the extent of raising concerns about §5’s constitutionality,” Bossier II, supra, at 336 (citation and internal quotation marks omitted). In addition, Congress expanded §5 to prohibit any voting law “that has the purpose of or will have the effect of diminishing the ability of any citizens of the United States,” on account of race, color, or language minority status, “to elect their preferred candidates of choice.” §1973c(b). In light of those two amendments, the bar that covered jurisdictions must clear has been raised even as the conditions justifying that requirement have dramatically improved.
We have also previously highlighted the concern that “the preclearance requirements in one State [might] be unconstitutional in another.” Northwest Austin, 557 U. S., at 203; see Georgia v. Ashcroft, 539 U. S., at 491 (Kennedy, J., concurring) (“considerations of race that would doom a redistricting plan under the Fourteenth Amendment or §2 [of the Voting Rights Act] seem to be what save it under §5”). Nothing has happened since to alleviate this troubling concern about the current application of §5.
Respondents do not deny that there have been improvements on the ground, but argue that much of this can be attributed to the deterrent effect of §5, which dissuades covered jurisdictions from engaging in discrimination that they would resume should §5 be struck down. Under this theory, however, §5 would be effectively immune from scrutiny; no matter how “clean” the record of covered jurisdictions, the argument could always be made that it was deterrence that accounted for the good behavior.
The provisions of §5 apply only to those jurisdictions singled out by §4. We now consider whether that coverage formula is constitutional in light of current conditions.III A
When upholding the constitutionality of the coverage formula in 1966, we concluded that it was “rational in both practice and theory.” Katzenbach, 383 U. S., at 330. The formula looked to cause (discriminatory tests) and effect (low voter registration and turnout), and tailored the remedy (preclearance) to those jurisdictions exhibiting both.
By 2009, however, we concluded that the “coverage formula raise[d] serious constitutional questions.” Northwest Austin, 557 U. S., at 204. As we explained, a statute’s “current burdens” must be justified by “current needs,” and any “disparate geographic coverage” must be “sufficiently related to the problem that it targets.” Id., at 203. The coverage formula met that test in 1965, but no longer does so.
Coverage today is based on decades-old data and eradicated practices. The formula captures States by reference to literacy tests and low voter registration and turnout in the 1960s and early 1970s. But such tests have been banned nationwide for over 40 years. §6, 84Stat. 315; §102, 89Stat. 400. And voter registration and turnout numbers in the covered States have risen dramatically in the years since. H. R. Rep. No. 109–478, at 12. Racial disparity in those numbers was compelling evidence justifying the preclearance remedy and the coverage formula. See, e.g., Katzenbach, supra, at 313, 329–330. There is no longer such a disparity.
In 1965, the States could be divided into two groups: those with a recent history of voting tests and low voter registration and turnout, and those without those characteristics. Congress based its coverage formula on that distinction. Today the Nation is no longer divided along those lines, yet the Voting Rights Act continues to treat it as if it were.B
The Government’s defense of the formula is limited. First, the Government contends that the formula is “reverse-engineered”: Congress identified the jurisdictions to be covered and then came up with criteria to describe them. Brief for Federal Respondent 48–49. Under that reasoning, there need not be any logical relationship be-tween the criteria in the formula and the reason for coverage; all that is necessary is that the formula happen to capture the jurisdictions Congress wanted to single out.
The Government suggests that Katzenbach sanctioned such an approach, but the analysis in Katzenbach was quite different. Katzenbach reasoned that the coverage formula was rational because the “formula . . . was relevant to the problem”: “Tests and devices are relevant to voting discrimination because of their long history as a tool for perpetrating the evil; a low voting rate is pertinent for the obvious reason that widespread disenfranchisement must inevitably affect the number of actual voters.” 383 U. S., at 329, 330.
Here, by contrast, the Government’s reverseengineering argument does not even attempt to demonstrate the continued relevance of the formula to the problem it targets. And in the context of a decision as significant as this one—subjecting a disfavored subset of States to “extraordinary legislation otherwise unfamiliar to our federal system,” Northwest Austin, supra, at 211—that failure to establish even relevance is fatal.
The Government falls back to the argument that because the formula was relevant in 1965, its continued use is permissible so long as any discrimination remains in the States Congress identified back then—regardless of how that discrimination compares to discrimination in States unburdened by coverage. Brief for Federal Respondent 49–50. This argument does not look to “current political conditions,” Northwest Austin, supra, at 203, but instead relies on a comparison between the States in 1965. That comparison reflected the different histories of the North and South. It was in the South that slavery was upheld by law until uprooted by the Civil War, that the reign of Jim Crow denied African-Americans the most basic freedoms, and that state and local governments worked tirelessly to disenfranchise citizens on the basis of race. The Court invoked that history—rightly so—in sustaining the disparate coverage of the Voting Rights Act in 1966. See Katzenbach, supra, at 308 (“The constitutional propriety of the Voting Rights Act of 1965 must be judged with reference to the historical experience which it reflects.”).
But history did not end in 1965. By the time the Act was reauthorized in 2006, there had been 40 more years of it. In assessing the “current need[ ]” for a preclearance system that treats States differently from one another today, that history cannot be ignored. During that time, largely because of the Voting Rights Act, voting tests were abolished, disparities in voter registration and turnout due to race were erased, and African-Americans attained political office in record numbers. And yet the coverage formula that Congress reauthorized in 2006 ignores these developments, keeping the focus on decades-old data rel-evant to decades-old problems, rather than current data reflecting current needs.
The Fifteenth Amendment commands that the right to vote shall not be denied or abridged on account of race or color, and it gives Congress the power to enforce that command. The Amendment is not designed to punish for the past; its purpose is to ensure a better future. See Rice v. Cayetano, 528 U. S. 495, 512 (2000) (“Consistent with the design of the Constitution, the [Fifteenth] Amendment is cast in fundamental terms, terms transcending the particular controversy which was the immediate impetus for its enactment.”). To serve that purpose, Congress—if it is to divide the States—must identify those jurisdictions to be singled out on a basis that makes sense in light of current conditions. It cannot rely simply on the past. We made that clear in Northwest Austin, and we make it clear again today.C
In defending the coverage formula, the Government, the intervenors, and the dissent also rely heavily on data from the record that they claim justify disparate coverage. Congress compiled thousands of pages of evidence before reauthorizing the Voting Rights Act. The court below and the parties have debated what that record shows—they have gone back and forth about whether to compare covered to noncovered jurisdictions as blocks, how to disaggregate the data State by State, how to weigh §2 cases as evidence of ongoing discrimination, and whether to consider evidence not before Congress, among other issues. Compare, e.g., 679 F. 3d, at 873–883 (case below), with id., at 889–902 (Williams, J., dissenting). Regardless of how to look at the record, however, no one can fairly say that it shows anything approaching the “pervasive,” “flagrant,” “widespread,” and “rampant” discrimination that faced Congress in 1965, and that clearly distinguished the covered jurisdictions from the rest of the Nation at that time. Katzenbach, supra, at 308, 315, 331; Northwest Austin, 557 U. S., at 201.
But a more fundamental problem remains: Congress did not use the record it compiled to shape a coverage formula grounded in current conditions. It instead reenacted a formula based on 40-year-old facts having no logical relation to the present day. The dissent relies on “second-generation barriers,” which are not impediments to the casting of ballots, but rather electoral arrangements that affect the weight of minority votes. That does not cure the problem. Viewing the preclearance requirements as targeting such efforts simply highlights the irrationality of continued reliance on the §4 coverage formula, which is based on voting tests and access to the ballot, not vote dilution. We cannot pretend that we are reviewing an updated statute, or try our hand at updating the statute ourselves, based on the new record compiled by Congress. Contrary to the dissent’s contention, see post, at 23, we are not ignoring the record; we are simply recognizing that it played no role in shaping the statutory formula before us today.
The dissent also turns to the record to argue that, in light of voting discrimination in Shelby County, the county cannot complain about the provisions that subject it to preclearance. Post, at 23–30. But that is like saying that a driver pulled over pursuant to a policy of stopping all redheads cannot complain about that policy, if it turns out his license has expired. Shelby County’s claim is that the coverage formula here is unconstitutional in all its applications, because of how it selects the jurisdictions sub-jected to preclearance. The county was selected based on that formula, and may challenge it in court.D
The dissent proceeds from a flawed premise. It quotes the famous sentence from McCulloch v. Maryland, 4 Wheat. 316, 421 (1819), with the following emphasis: “Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional.” Post, at 9 (emphasis in dissent). But this case is about a part of the sentence that the dissent does not emphasize—the part that asks whether a legislative means is “consist[ent] with the letter and spirit of the constitution.” The dissent states that “[i]t cannot tenably be maintained” that this is an issue with regard to the Voting Rights Act, post, at 9, but four years ago, in an opinion joined by two of today’s dissenters, the Court expressly stated that “[t]he Act’s preclearance requirement and its coverage formula raise serious constitutional questions.” Northwest Austin, supra, at 204. The dissent does not explain how those “serious constitutional questions” became untenable in four short years.
The dissent treats the Act as if it were just like any other piece of legislation, but this Court has made clear from the beginning that the Voting Rights Act is far from ordinary. At the risk of repetition, Katzenbach indicated that the Act was “uncommon” and “not otherwise appropriate,” but was justified by “exceptional” and “unique” conditions. 383 U. S., at 334, 335. Multiple decisions since have reaffirmed the Act’s “extraordinary” nature. See, e.g., Northwest Austin, supra, at 211. Yet the dissent goes so far as to suggest instead that the preclearance requirement and disparate treatment of the States should be upheld into the future “unless there [is] no or almost no evidence of unconstitutional action by States.” Post, at 33.
In other ways as well, the dissent analyzes the question presented as if our decision in Northwest Austin never happened. For example, the dissent refuses to consider the principle of equal sovereignty, despite Northwest Austin’s emphasis on its significance. Northwest Austin also emphasized the “dramatic” progress since 1965, 557 U. S., at 201, but the dissent describes current levels of discrimination as “flagrant,” “widespread,” and “pervasive,” post, at 7, 17 (internal quotation marks omitted). Despite the fact that Northwest Austin requires an Act’s “disparate geographic coverage” to be “sufficiently related” to its targeted problems, 557 U. S., at 203, the dissent maintains that an Act’s limited coverage actually eases Congress’s burdens, and suggests that a fortuitous relationship should suffice. Although Northwest Austin stated definitively that “current burdens” must be justified by “current needs,” ibid., the dissent argues that the coverage formula can be justified by history, and that the required showing can be weaker on reenactment than when the law was first passed.
There is no valid reason to insulate the coverage for-mula from review merely because it was previously enacted 40 years ago. If Congress had started from scratch in 2006, it plainly could not have enacted the present coverage formula. It would have been irrational for Congress to distinguish between States in such a fundamental way based on 40-year-old data, when today’s statistics tell an entirely different story. And it would have been irrational to base coverage on the use of voting tests 40 years ago, when such tests have been illegal since that time. But that is exactly what Congress has done.* * *
Striking down an Act of Congress “is the gravest and most delicate duty that this Court is called on to perform.” Blodgett v. Holden, 275 U. S. 142, 148 (1927) (Holmes, J., concurring). We do not do so lightly. That is why, in 2009, we took care to avoid ruling on the constitutionality of the Voting Rights Act when asked to do so, and instead resolved the case then before us on statutory grounds. But in issuing that decision, we expressed our broader concerns about the constitutionality of the Act. Congress could have updated the coverage formula at that time, but did not do so. Its failure to act leaves us today with no choice but to declare §4(b) unconstitutional. The formula in that section can no longer be used as a basis for subjecting jurisdictions to preclearance.
Our decision in no way affects the permanent, nationwide ban on racial discrimination in voting found in §2. We issue no holding on §5 itself, only on the coverage formula. Congress may draft another formula based on current conditions. Such a formula is an initial prerequisite to a determination that exceptional conditions still exist justifying such an “extraordinary departure from the traditional course of relations between the States and the Federal Government.” Presley, 502 U. S., at 500–501. Our country has changed, and while any racial discrimination in voting is too much, Congress must ensure that the legislation it passes to remedy that problem speaks to current conditions.
The judgment of the Court of Appeals is reversed.
It is so ordered.
1 Both the Fourteenth and Fifteenth Amendments were at issue in Northwest Austin, see Juris. Statement i, and Brief for Federal Appellee 29–30, in Northwest Austin Municipal Util. Dist. No. One v. Holder, O. T. 2008, No. 08–322, and accordingly Northwest Austin guides our review under both Amendments in this case.
SUPREME COURT OF THE UNITED STATES
SHELBY COUNTY, ALABAMA, PETITIONER v. ERIC H. HOLDER, Jr., ATTORNEY GENERAL, et al.
on writ of certiorari to the united states court of appeals for the district of columbia circuit
[June 25, 2013]
Justice Ginsburg, with whom Justice Breyer, Justice Sotomayor, and Justice Kagan join, dissenting.
In the Court’s view, the very success of §5 of the Voting Rights Act demands its dormancy. Congress was of another mind. Recognizing that large progress has been made, Congress determined, based on a voluminous record, that the scourge of discrimination was not yet extirpated. The question this case presents is who decides whether, as currently operative, §5 remains justifiable, 1 this Court, or a Congress charged with the obligation to enforce the post-Civil War Amendments “by appropriate legislation.” With overwhelming support in both Houses, Congress concluded that, for two prime reasons, §5 should continue in force, unabated. First, continuance would facilitate completion of the impressive gains thus far made; and second, continuance would guard against backsliding. Those assessments were well within Congress’ province to make and should elicit this Court’s unstinting approbation.I
“[V]oting discrimination still exists; no one doubts that.” Ante, at 2. But the Court today terminates the remedy that proved to be best suited to block that discrimination. The Voting Rights Act of 1965 (VRA) has worked to combat voting discrimination where other remedies had been tried and failed. Particularly effective is the VRA’s requirement of federal preclearance for all changes to voting laws in the regions of the country with the most aggravated records of rank discrimination against minority voting rights.
A century after the Fourteenth and Fifteenth Amendments guaranteed citizens the right to vote free of discrimination on the basis of race, the “blight of racial discrimination in voting” continued to “infec[t] the electoral process in parts of our country.” South Carolina v. Katzenbach, 383 U. S. 301, 308 (1966) . Early attempts to cope with this vile infection resembled battling the Hydra. Whenever one form of voting discrimination was identified and prohibited, others sprang up in its place. This Court repeatedly encountered the remarkable “variety and persistence” of laws disenfranchising minority citizens. Id., at 311. To take just one example, the Court, in 1927, held unconstitutional a Texas law barring black voters from participating in primary elections, Nixon v. Herndon, 273 U. S. 536 ; in 1944, the Court struck down a “reenacted” and slightly altered version of the same law, Smith v. Allwright, 321 U. S. 649 ; and in 1953, the Court once again confronted an attempt by Texas to “circumven[t]” the Fifteenth Amendment by adopting yet another variant of the all-white primary, Terry v. Adams, 345 U. S. 461 .
During this era, the Court recognized that discrimination against minority voters was a quintessentially political problem requiring a political solution. As Justice Holmes explained: If “the great mass of the white population intends to keep the blacks from voting,” “relief from [that] great political wrong, if done, as alleged, by the people of a State and the State itself, must be given by them or by the legislative and political department of the government of the United States.” Giles v. Harris, 189 U. S. 475, 488 (1903) .
Congress learned from experience that laws targeting particular electoral practices or enabling case-by-case litigation were inadequate to the task. In the Civil Rights Acts of 1957, 1960, and 1964, Congress authorized and then expanded the power of “the Attorney General to seek injunctions against public and private interference with the right to vote on racial grounds.” Katzenbach, 383 U. S., at 313. But circumstances reduced the ameliorative potential of these legislative Acts:
“Voting suits are unusually onerous to prepare, sometimes requiring as many as 6,000 man-hours spent combing through registration records in preparation for trial. Litigation has been exceedingly slow, in part because of the ample opportunities for delay afforded voting officials and others involved in the proceed-ings. Even when favorable decisions have finally been obtained, some of the States affected have merely switched to discriminatory devices not covered by the federal decrees or have enacted difficult new tests designed to prolong the existing disparity between white and Negro registration. Alternatively, certain local officials have defied and evaded court orders or have simply closed their registration offices to freeze the voting rolls.” Id., at 314 (footnote omitted).
Patently, a new approach was needed.
Answering that need, the Voting Rights Act became one of the most consequential, efficacious, and amply justified exercises of federal legislative power in our Nation’s his-tory. Requiring federal preclearance of changes in voting laws in the covered jurisdictions—those States and localities where opposition to the Constitution’s commands were most virulent—the VRA provided a fit solution for minority voters as well as for States. Under the preclearance regime established by §5 of the VRA, covered jurisdictions must submit proposed changes in voting laws or procedures to the Department of Justice (DOJ), which has 60 days to respond to the changes. 79Stat. 439, codified at 42 U. S. C. §1973c(a). A change will be approved unless DOJ finds it has “the purpose [or] . . . the effect of denying or abridging the right to vote on account of race or color.” Ibid. In the alternative, the covered jurisdiction may seek approval by a three-judge District Court in the District of Columbia.
After a century’s failure to fulfill the promise of the Fourteenth and Fifteenth Amendments, passage of the VRA finally led to signal improvement on this front. “The Justice Department estimated that in the five years after [the VRA’s] passage, almost as many blacks registered [to vote] in Alabama, Mississippi, Georgia, Louisiana, North Carolina, and South Carolina as in the entire century before 1965.” Davidson, The Voting Rights Act: A Brief History, in Controversies in Minority Voting 7, 21 (B. Grofman & C. Davidson eds. 1992). And in assessing the overall effects of the VRA in 2006, Congress found that “[s]ignificant progress has been made in eliminating first generation barriers experienced by minority voters, including increased numbers of registered minority voters, minority voter turnout, and minority representation in Congress, State legislatures, and local elected offices. This progress is the direct result of the Voting Rights Act of 1965.” Fannie Lou Hamer, Rosa Parks, and Coretta Scott King Voting Rights Act Reauthorization and Amendments Act of 2006 (hereinafter 2006 Reauthorization), §2(b)(1), 120Stat. 577. On that matter of cause and effects there can be no genuine doubt.
Although the VRA wrought dramatic changes in the realization of minority voting rights, the Act, to date, surely has not eliminated all vestiges of discrimination against the exercise of the franchise by minority citizens. Jurisdictions covered by the preclearance requirement continued to submit, in large numbers, proposed changes to voting laws that the Attorney General declined to approve, auguring that barriers to minority voting would quickly resurface were the preclearance remedy elimi-nated. City of Rome v. United States, 446 U. S. 156, 181 (1980) . Congress also found that as “registration and voting of minority citizens increas[ed], other measures may be resorted to which would dilute increasing minority voting strength.” Ibid. (quoting H. R. Rep. No. 94–196, p. 10 (1975)). See also Shaw v. Reno, 509 U. S. 630, 640 (1993) (“[I]t soon became apparent that guaranteeing equal access to the polls would not suffice to root out other racially discriminatory voting practices” such as voting dilution). Efforts to reduce the impact of minority votes, in contrast to direct attempts to block access to the ballot, are aptly described as “second-generation barriers” to minority voting.
Second-generation barriers come in various forms. One of the blockages is racial gerrymandering, the redrawing of legislative districts in an “effort to segregate the races for purposes of voting.” Id., at 642. Another is adoption of a system of at-large voting in lieu of district-by-district voting in a city with a sizable black minority. By switching to at-large voting, the overall majority could control the election of each city council member, effectively eliminating the potency of the minority’s votes. Grofman & Davidson, The Effect of Municipal Election Structure on Black Representation in Eight Southern States, in Quiet Revolution in the South 301, 319 (C. Davidson & B. Grofman eds. 1994) (hereinafter Quiet Revolution). A similar effect could be achieved if the city engaged in discriminatory annexation by incorporating majority-white areas into city limits, thereby decreasing the effect of VRA-occasioned increases in black voting. Whatever the device employed, this Court has long recognized that vote dilution, when adopted with a discriminatory purpose, cuts down the right to vote as certainly as denial of access to the ballot. Shaw, 509 U. S., at 640–641; Allen v. State Bd. of Elections, 393 U. S. 544, 569 (1969) ; Reynolds v. Sims, 377 U. S. 533, 555 (1964) . See also H. R. Rep. No. 109–478, p. 6 (2006) (although “[d]iscrimination today is more subtle than the visible methods used in 1965,” “the effect and results are the same, namely a diminishing of the minority community’s ability to fully participate in the electoral process and to elect their preferred candidates”).
In response to evidence of these substituted barriers, Congress reauthorized the VRA for five years in 1970, for seven years in 1975, and for 25 years in 1982. Ante, at 4–5. Each time, this Court upheld the reauthorization as a valid exercise of congressional power. Ante, at 5. As the 1982 reauthorization approached its 2007 expiration date, Congress again considered whether the VRA’s preclearance mechanism remained an appropriate response to the problem of voting discrimination in covered jurisdictions.
Congress did not take this task lightly. Quite the opposite. The 109th Congress that took responsibility for the renewal started early and conscientiously. In October 2005, the House began extensive hearings, which continued into November and resumed in March 2006. S. Rep. No. 109–295, p. 2 (2006). In April 2006, the Senate followed suit, with hearings of its own. Ibid. In May 2006, the bills that became the VRA’s reauthorization were introduced in both Houses. Ibid. The House held further hearings of considerable length, as did the Senate, which continued to hold hearings into June and July. H. R. Rep. 109–478, at 5; S. Rep. 109–295, at 3–4. In mid-July, the House considered and rejected four amendments, then passed the reauthorization by a vote of 390 yeas to 33 nays. 152 Cong. Rec. H5207 (July 13, 2006); Persily, The Promise and Pitfalls of the New Voting Rights Act, 117 Yale L. J. 174, 182–183 (2007) (hereinafter Persily). The bill was read and debated in the Senate, where it passed by a vote of 98 to 0. 152 Cong. Rec. S8012 (July 20, 2006). President Bush signed it a week later, on July 27, 2006, recognizing the need for “further work . . . in the fight against injustice,” and calling the reauthorization “an example of our continued commitment to a united America where every person is valued and treated with dignity and respect.” 152 Cong. Rec. S8781 (Aug. 3, 2006).
In the long course of the legislative process, Congress “amassed a sizable record.” Northwest Austin Municipal Util. Dist. No. One v. Holder, 557 U. S. 193, 205 (2009) . See also 679 F. 3d 848, 865–873 (CADC 2012) (describing the “extensive record” supporting Congress’ determina-tion that “serious and widespread intentional discrimination persisted in covered jurisdictions”). The House and Senate Judiciary Committees held 21 hearings, heard from scores of witnesses, received a number of investigative reports and other written documentation of continuing discrimina-tion in covered jurisdictions. In all, the legislative record Congress compiled filled more than 15,000 pages. H. R. Rep. 109–478, at 5, 11–12; S. Rep. 109–295, at 2–4, 15. The compilation presents countless “examples of fla-grant racial discrimination” since the last reauthoriza-tion; Congress also brought to light systematic evidence that “intentional racial discrimination in voting remains so serious and widespread in covered jurisdictions that section 5 preclearance is still needed.” 679 F. 3d, at 866.
After considering the full legislative record, Congress made the following findings: The VRA has directly caused significant progress in eliminating first-generation barriers to ballot access, leading to a marked increase in minority voter registration and turnout and the number of minority elected officials. 2006 Reauthorization §2(b)(1). But despite this progress, “second generation barriers constructed to prevent minority voters from fully participating in the electoral process” continued to exist, as well as racially polarized voting in the covered jurisdictions, which increased the political vulnerability of racial and language minorities in those jurisdictions. §§2(b)(2)–(3), 120Stat. 577. Extensive “[e]vidence of continued discrimination,” Congress concluded, “clearly show[ed] the continued need for Federal oversight” in covered jurisdictions. §§2(b)(4)–(5), id., at 577–578. The overall record demonstrated to the federal lawmakers that, “without the continuation of the Voting Rights Act of 1965 protections, racial and language minority citizens will be deprived of the opportunity to exercise their right to vote, or will have their votes diluted, undermining the significant gains made by minorities in the last 40 years.” §2(b)(9), id., at 578.
Based on these findings, Congress reauthorized preclearance for another 25 years, while also undertaking to reconsider the extension after 15 years to ensure that the provision was still necessary and effective. 42 U. S. C. §1973b(a)(7), (8) (2006 ed., Supp. V). The question before the Court is whether Congress had the authority under the Constitution to act as it did.II
In answering this question, the Court does not write on a clean slate. It is well established that Congress’ judgment regarding exercise of its power to enforce the Fourteenth and Fifteenth Amendments warrants substantial deference. The VRA addresses the combination of race discrimination and the right to vote, which is “preservative of all rights.” Yick Wo v. Hopkins, 118 U. S. 356, 370 (1886) . When confronting the most constitutionally invidious form of discrimination, and the most fundamental right in our democratic system, Congress’ power to act is at its height.
The basis for this deference is firmly rooted in both constitutional text and precedent. The Fifteenth Amendment, which targets precisely and only racial discrimination in voting rights, states that, in this domain, “Congress shall have power to enforce this article by appropriate legislation.” 2 In choosing this language, the Amendment’s framers invoked Chief Justice Marshall’s formulation of the scope of Congress’ powers under the Necessary and Proper Clause:
“Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional.” McCulloch v. Maryland, 4 Wheat. 316, 421 (1819) (emphasis added).
It cannot tenably be maintained that the VRA, an Act of Congress adopted to shield the right to vote from racial discrimination, is inconsistent with the letter or spirit of the Fifteenth Amendment, or any provision of the Constitution read in light of the Civil War Amendments. Nowhere in today’s opinion, or in Northwest Austin, 3 is there clear recognition of the transformative effect the Fifteenth Amendment aimed to achieve. Notably, “the Founders’ first successful amendment told Congress that it could ‘make no law’ over a certain domain”; in contrast, the Civil War Amendments used “language [that] authorized transformative new federal statutes to uproot all vestiges of unfreedom and inequality” and provided “sweeping enforcement powers . . . to enact ‘appropriate’ legislation targeting state abuses.” A. Amar, America’s Constitution: A Biography 361, 363, 399 (2005). See also McConnell, Institutions and Interpretation: A Critique of City of Boerne v. Flores, 111 Harv. L. Rev. 153, 182 (1997) (quoting Civil War-era framer that “the remedy for the violation of the fourteenth and fifteenth amendments was expressly not left to the courts. The remedy was legislative.”).
The stated purpose of the Civil War Amendments was to arm Congress with the power and authority to protect all persons within the Nation from violations of their rights by the States. In exercising that power, then, Congress may use “all means which are appropriate, which are plainly adapted” to the constitutional ends declared by these Amendments. McCulloch, 4 Wheat., at 421. So when Congress acts to enforce the right to vote free from racial discrimination, we ask not whether Congress has chosen the means most wise, but whether Congress has rationally selected means appropriate to a legitimate end. “It is not for us to review the congressional resolution of [the need for its chosen remedy]. It is enough that we be able to perceive a basis upon which the Congress might resolve the conflict as it did.” Katzenbach v. Morgan, 384 U. S. 641, 653 (1966) .
Until today, in considering the constitutionality of the VRA, the Court has accorded Congress the full measure of respect its judgments in this domain should garner. South Carolina v. Katzenbach supplies the standard of review: “As against the reserved powers of the States, Congress may use any rational means to effectuate the constitu-tional prohibition of racial discrimination in voting.” 383 U. S., at 324. Faced with subsequent reauthorizations of the VRA, the Court has reaffirmed this standard. E.g., City of Rome, 446 U. S., at 178. Today’s Court does not purport to alter settled precedent establishing that the dispositive question is whether Congress has employed “rational means.”
For three reasons, legislation reauthorizing an existing statute is especially likely to satisfy the minimal requirements of the rational-basis test. First, when reauthorization is at issue, Congress has already assembled a legislative record justifying the initial legislation. Congress is en-titled to consider that preexisting record as well as the record before it at the time of the vote on reauthorization. This is especially true where, as here, the Court has repeatedly affirmed the statute’s constitutionality and Congress has adhered to the very model the Court has upheld. See id., at 174 (“The appellants are asking us to do nothing less than overrule our decision in South Carolina v. Katzenbach . . . , in which we upheld the constitutionality of the Act.”); Lopez v. Monterey County, 525 U. S. 266, 283 (1999) (similar).
Second, the very fact that reauthorization is necessary arises because Congress has built a temporal limitation into the Act. It has pledged to review, after a span of years (first 15, then 25) and in light of contemporary evidence, the continued need for the VRA. Cf. Grutter v. Bollinger, 539 U. S. 306, 343 (2003) (anticipating, but not guaranteeing, that, in 25 years, “the use of racial preferences [in higher education] will no longer be necessary”).
Third, a reviewing court should expect the record supporting reauthorization to be less stark than the record originally made. Demand for a record of violations equivalent to the one earlier made would expose Congress to a catch-22. If the statute was working, there would be less evidence of discrimination, so opponents might argue that Congress should not be allowed to renew the statute. In contrast, if the statute was not working, there would be plenty of evidence of discrimination, but scant reason to renew a failed regulatory regime. See Persily 193–194.
This is not to suggest that congressional power in this area is limitless. It is this Court’s responsibility to ensure that Congress has used appropriate means. The question meet for judicial review is whether the chosen means are “adapted to carry out the objects the amendments have in view.” Ex parte Virginia, 100 U. S. 339, 346 (1880) . The Court’s role, then, is not to substitute its judgment for that of Congress, but to determine whether the legislative record sufficed to show that “Congress could rationally have determined that [its chosen] provisions were appropriate methods.” City of Rome, 446 U. S., at 176–177.
In summary, the Constitution vests broad power in Congress to protect the right to vote, and in particular to combat racial discrimination in voting. This Court has repeatedly reaffirmed Congress’ prerogative to use any rational means in exercise of its power in this area. And both precedent and logic dictate that the rational-means test should be easier to satisfy, and the burden on the statute’s challenger should be higher, when what is at issue is the reauthorization of a remedy that the Court has previously affirmed, and that Congress found, from contemporary evidence, to be working to advance the legislature’s legitimate objective.III
The 2006 reauthorization of the Voting Rights Act fully satisfies the standard stated in McCulloch, 4 Wheat., at 421: Congress may choose any means “appropriate” and “plainly adapted to” a legitimate constitutional end. As we shall see, it is implausible to suggest otherwise.A
I begin with the evidence on which Congress based its decision to continue the preclearance remedy. The surest way to evaluate whether that remedy remains in order is to see if preclearance is still effectively preventing discriminatory changes to voting laws. See City of Rome, 446 U. S., at 181 (identifying “information on the number and types of submissions made by covered jurisdictions and the number and nature of objections interposed by the Attorney General” as a primary basis for upholding the 1975 reauthorization). On that score, the record before Congress was huge. In fact, Congress found there were more DOJ objections between 1982 and 2004 (626) than there were between 1965 and the 1982 reauthorization (490). 1 Voting Rights Act: Evidence of Continued Need, Hearing before the Subcommittee on the Constitution of the House Committee on the Judiciary, 109th Cong., 2d Sess., p. 172 (2006) (hereinafter Evidence of Continued Need).
All told, between 1982 and 2006, DOJ objections blocked over 700 voting changes based on a determination that the changes were discriminatory. H. R. Rep. No. 109–478, at 21. Congress found that the majority of DOJ objections included findings of discriminatory intent, see 679 F. 3d, at 867, and that the changes blocked by preclearance were “calculated decisions to keep minority voters from fully participating in the political process.” H. R. Rep. 109–478, at 21. On top of that, over the same time period the DOJ and private plaintiffs succeeded in more than 100 actions to enforce the §5 preclearance requirements. 1 Evidence of Continued Need 186, 250.
In addition to blocking proposed voting changes through preclearance, DOJ may request more information from a jurisdiction proposing a change. In turn, the jurisdiction may modify or withdraw the proposed change. The number of such modifications or withdrawals provides an indication of how many discriminatory proposals are deterred without need for formal objection. Congress received evidence that more than 800 proposed changes were altered or withdrawn since the last reauthorization in 1982. H. R. Rep. No. 109–478, at 40–41. 4 Congress also received empirical studies finding that DOJ’s requests for more information had a significant effect on the degree to which covered jurisdictions “compl[ied] with their obligatio[n]” to protect minority voting rights. 2 Evidence of Continued Need 2555.
Congress also received evidence that litigation under §2 of the VRA was an inadequate substitute for preclearance in the covered jurisdictions. Litigation occurs only after the fact, when the illegal voting scheme has already been put in place and individuals have been elected pursuant to it, thereby gaining the advantages of incumbency. 1 Evidence of Continued Need 97. An illegal scheme might be in place for several election cycles before a §2 plaintiff can gather sufficient evidence to challenge it. 1 Voting Rights Act: Section 5 of the Act—History, Scope, and Purpose: Hearing before the Subcommittee on the Constitution of the House Committee on the Judiciary, 109th Cong., 1st Sess., p. 92 (2005) (hereinafter Section 5 Hearing). And litigation places a heavy financial burden on minority voters. See id., at 84. Congress also received evidence that preclearance lessened the litigation burden on covered jurisdictions themselves, because the preclearance process is far less costly than defending against a §2 claim, and clearance by DOJ substantially reduces the likelihood that a §2 claim will be mounted. Reauthorizing the Voting Rights Act’s Temporary Provisions: Policy Perspectives and Views From the Field: Hearing before the Subcommittee on the Constitution, Civil Rights and Property Rights of the Senate Committee on the Judiciary, 109th Cong., 2d Sess., pp. 13, 120–121 (2006). See also Brief for States of New York, California, Mississippi, and North Carolina as Amici Curiae 8–9 (Section 5 “reduc[es] the likelihood that a jurisdiction will face costly and protracted Section 2 litigation”).
The number of discriminatory changes blocked or deterred by the preclearance requirement suggests that the state of voting rights in the covered jurisdictions would have been significantly different absent this remedy. Sur-veying the type of changes stopped by the preclearance procedure conveys a sense of the extent to which §5 continues to protect minority voting rights. Set out below are characteristic examples of changes blocked in the years leading up to the 2006 reauthorization:
In 1995, Mississippi sought to reenact a dual voter registration system, “which was initially enacted in 1892 to disenfranchise Black voters,” and for that reason, was struck down by a federal court in 1987. H. R. Rep. No. 109–478, at 39.
Following the 2000 census, the City of Albany, Georgia, proposed a redistricting plan that DOJ found to be “designed with the purpose to limit and retrogress the increased black voting strength . . . in the city as a whole.” Id., at 37 (internal quotation marks omitted).
In 2001, the mayor and all-white five-member Board of Aldermen of Kilmichael, Mississippi, abruptly canceled the town’s election after “an unprecedented number” of African-American can-didates announced they were running for office. DOJ required an election, and the town elected its first black mayor and three black aldermen. Id., at 36–37.
In 2006, this Court found that Texas’ attempt to redraw a congressional district to reduce the strength of Latino voters bore “the mark of intentional discrimination that could give rise to an equal protection violation,” and ordered the district redrawn in compliance with the VRA. League of United Latin American Citizens v. Perry, 548 U. S. 399, 440 (2006) . In response, Texas sought to undermine this Court’s order by curtailing early voting in the district, but was blocked by an action to enforce the §5 preclearance requirement. See Order in League of United Latin American Citizens v. Texas, No. 06–cv–1046 (WD Tex.), Doc. 8.
In 2003, after African-Americans won a majority of the seats on the school board for the first time in history, Charleston County, South Carolina, proposed an at-large voting mechanism for the board. The proposal, made without consulting any of the African-American members of the school board, was found to be an “ ‘exact replica’ ” of an earlier voting scheme that, a federal court had determined, violated the VRA. 811 F. Supp. 2d 424, 483 (DDC 2011). See also S. Rep. No. 109–295, at 309. DOJ invoked §5 to block the proposal.
In 1993, the City of Millen, Georgia, proposed to delay the election in a majority-black district by two years, leaving that district without representation on the city council while the neighboring majority-white district would have three representatives. 1 Section 5 Hearing 744. DOJ blocked the proposal. The county then sought to move a polling place from a predominantly black neighborhood in the city to an inaccessible location in a predominantly white neighborhood outside city limits. Id., at 816.
In 2004, Waller County, Texas, threatened to prosecute two black students after they announced their intention to run for office. The county then attempted to reduce the availability of early voting in that election at polling places near a historically black university. 679 F. 3d, at 865–866.
In 1990, Dallas County, Alabama, whose county seat is the City of Selma, sought to purge its voter rolls of many black voters. DOJ rejected the purge as discriminatory, noting that it would have disquali-fied many citizens from voting “simply because they failed to pick up or return a voter update form, when there was no valid requirement that they do so.” 1 Section 5 Hearing 356.
These examples, and scores more like them, fill the pages of the legislative record. The evidence was indeed sufficient to support Congress’ conclusion that “racial discrimination in voting in covered jurisdictions [remained] serious and pervasive.” 679 F. 3d, at 865. 5
Congress further received evidence indicating that formal requests of the kind set out above represented only the tip of the iceberg. There was what one commentator described as an “avalanche of case studies of voting rights violations in the covered jurisdictions,” ranging from “outright intimidation and violence against minority voters” to “more subtle forms of voting rights deprivations.” Persily 202 (footnote omitted). This evidence gave Congress ever more reason to conclude that the time had not yet come for relaxed vigilance against the scourge of race discrimination in voting.
True, conditions in the South have impressively improved since passage of the Voting Rights Act. Congress noted this improvement and found that the VRA was the driving force behind it. 2006 Reauthorization §2(b)(1). But Congress also found that voting discrimination had evolved into subtler second-generation barriers, and that eliminating preclearance would risk loss of the gains that had been made. §§2(b)(2), (9). Concerns of this order, the Court previously found, gave Congress adequate cause to reauthorize the VRA. City of Rome, 446 U. S., at 180–182 (congressional reauthorization of the preclearance requirement was justified based on “the number and nature of objections interposed by the Attorney General” since the prior reauthorization; extension was “necessary to pre-serve the limited and fragile achievements of the Act and to promote further amelioration of voting discrimination”) (internal quotation marks omitted). Facing such evidence then, the Court expressly rejected the argument that disparities in voter turnout and number of elected officials were the only metrics capable of justifying reauthorization of the VRA. Ibid.B
I turn next to the evidence on which Congress based its decision to reauthorize the coverage formula in §4(b). Because Congress did not alter the coverage formula, the same jurisdictions previously subject to preclearance continue to be covered by this remedy. The evidence just described, of preclearance’s continuing efficacy in blocking constitutional violations in the covered jurisdictions, itself grounded Congress’ conclusion that the remedy should be retained for those jurisdictions.
There is no question, moreover, that the covered jurisdictions have a unique history of problems with racial discrimination in voting. Ante, at 12–13. Consideration of this long history, still in living memory, was altogether appropriate. The Court criticizes Congress for failing to recognize that “history did not end in 1965.” Ante, at 20. But the Court ignores that “what’s past is prologue.” W. Shakespeare, The Tempest, act 2, sc. 1. And “[t]hose who cannot remember the past are condemned to repeat it.” 1 G. Santayana, The Life of Reason 284 (1905). Congress was especially mindful of the need to reinforce the gains already made and to prevent backsliding. 2006 Reauthorization §2(b)(9).
Of particular importance, even after 40 years and thousands of discriminatory changes blocked by preclearance, conditions in the covered jurisdictions demonstrated that the formula was still justified by “current needs.” Northwest Austin, 557 U. S., at 203.
Congress learned of these conditions through a report, known as the Katz study, that looked at §2 suits between 1982 and 2004. To Examine the Impact and Effectiveness of the Voting Rights Act: Hearing before the Subcommittee on the Constitution of the House Committee on the Judiciary, 109th Cong., 1st Sess., pp. 964–1124 (2005) (hereinafter Impact and Effectiveness). Because the private right of action authorized by §2 of the VRA applies nationwide, a comparison of §2 lawsuits in covered and noncovered jurisdictions provides an appropriate yardstick for measuring differences between covered and noncovered jurisdictions. If differences in the risk of voting discrimination between covered and noncovered jurisdictions had disappeared, one would expect that the rate of successful §2 lawsuits would be roughly the same in both areas. 6 The study’s findings, however, indicated that racial discrimination in voting remains “concentrated in the jurisdictions singled out for preclearance.” Northwest Austin, 557 U. S., at 203.
Although covered jurisdictions account for less than 25 percent of the country’s population, the Katz study revealed that they accounted for 56 percent of successful §2 litigation since 1982. Impact and Effectiveness 974. Controlling for population, there were nearly four times as many successful §2 cases in covered jurisdictions as there were in noncovered jurisdictions. 679 F. 3d, at 874. The Katz study further found that §2 lawsuits are more likely to succeed when they are filed in covered jurisdictions than in noncovered jurisdictions. Impact and Effectiveness 974. From these findings—ignored by the Court—Congress reasonably concluded that the coverage formula continues to identify the jurisdictions of greatest concern.
The evidence before Congress, furthermore, indicated that voting in the covered jurisdictions was more racially polarized than elsewhere in the country. H. R. Rep. No. 109–478, at 34–35. While racially polarized voting alone does not signal a constitutional violation, it is a factor that increases the vulnerability of racial minorities to dis-criminatory changes in voting law. The reason is twofold. First, racial polarization means that racial minorities are at risk of being systematically outvoted and having their interests underrepresented in legislatures. Second, “when political preferences fall along racial lines, the natural inclinations of incumbents and ruling parties to entrench themselves have predictable racial effects. Under circumstances of severe racial polarization, efforts to gain political advantage translate into race-specific disadvantages.” Ansolabehere, Persily, & Stewart, Regional Differences in Racial Polarization in the 2012 Presidential Election: Implications for the Constitutionality of Section 5 of the Voting Rights Act, 126 Harv. L. Rev. Forum 205, 209 (2013).
In other words, a governing political coalition has an incentive to prevent changes in the existing balance of voting power. When voting is racially polarized, efforts by the ruling party to pursue that incentive “will inevitably discriminate against a racial group.” Ibid. Just as buildings in California have a greater need to be earthquake-proofed, places where there is greater racial polarization in voting have a greater need for prophylactic measures to prevent purposeful race discrimination. This point was understood by Congress and is well recognized in the academic literature. See 2006 Reauthorization §2(b)(3), 120Stat. 577 (“The continued evidence of racially polarized voting in each of the jurisdictions covered by the [preclearance requirement] demonstrates that racial and language minorities remain politically vulnerable”); H. R. Rep. No. 109–478, at 35; Davidson, The Recent Evolution of Voting Rights Law Affecting Racial and Language Minorities, in Quiet Revolution 21, 22.
The case for retaining a coverage formula that met needs on the ground was therefore solid. Congress might have been charged with rigidity had it afforded covered jurisdictions no way out or ignored jurisdictions that needed superintendence. Congress, however, responded to this concern. Critical components of the congressional design are the statutory provisions allowing jurisdictions to “bail out” of preclearance, and for court-ordered “bail ins.” See Northwest Austin, 557 U. S., at 199. The VRA permits a jurisdiction to bail out by showing that it has complied with the Act for ten years, and has engaged in efforts to eliminate intimidation and harassment of vot-ers. 42 U. S. C. §1973b(a) (2006 ed. and Supp. V). It also authorizes a court to subject a noncovered jurisdiction to federal preclearance upon finding that violations of the Fourteenth and Fifteenth Amendments have occurred there. §1973a(c) (2006 ed.).
Congress was satisfied that the VRA’s bailout mechanism provided an effective means of adjusting the VRA’s coverage over time. H. R. Rep. No. 109–478, at 25 (the success of bailout “illustrates that: (1) covered status is neither permanent nor over-broad; and (2) covered status has been and continues to be within the control of the jurisdiction such that those jurisdictions that have a genuinely clean record and want to terminate coverage have the ability to do so”). Nearly 200 jurisdictions have successfully bailed out of the preclearance requirement, and DOJ has consented to every bailout application filed by an eligible jurisdiction since the current bailout procedure became effective in 1984. Brief for Federal Respondent 54. The bail-in mechanism has also worked. Several jurisdictions have been subject to federal preclearance by court orders, including the States of New Mexico and Arkansas. App. to Brief for Federal Respondent 1a–3a.
This experience exposes the inaccuracy of the Court’s portrayal of the Act as static, unchanged since 1965. Congress designed the VRA to be a dynamic statute, capable of adjusting to changing conditions. True, many covered jurisdictions have not been able to bail out due to recent acts of noncompliance with the VRA, but that truth reinforces the congressional judgment that these jurisdictions were rightfully subject to preclearance, and ought to remain under that regime.IV
Congress approached the 2006 reauthorization of the VRA with great care and seriousness. The same cannot be said of the Court’s opinion today. The Court makes no genuine attempt to engage with the massive legislative record that Congress assembled. Instead, it relies on increases in voter registration and turnout as if that were the whole story. See supra, at 18–19. Without even identifying a standard of review, the Court dismissively brushes off arguments based on “data from the record,” and declines to enter the “debat[e about] what [the] record shows.” Ante, at 20–21. One would expect more from an opinion striking at the heart of the Nation’s signal piece of civil-rights legislation.
I note the most disturbing lapses. First, by what right, given its usual restraint, does the Court even address Shelby County’s facial challenge to the VRA? Second, the Court veers away from controlling precedent regarding the “equal sovereignty” doctrine without even acknowledging that it is doing so. Third, hardly showing the respect ordinarily paid when Congress acts to implement the Civil War Amendments, and as just stressed, the Court does not even deign to grapple with the legislative record.A
Shelby County launched a purely facial challenge to the VRA’s 2006 reauthorization. “A facial challenge to a legislative Act,” the Court has other times said, “is, of course, the most difficult challenge to mount successfully, since the challenger must establish that no set of circumstances exists under which the Act would be valid.” United States v. Salerno, 481 U. S. 739, 745 (1987) .
“[U]nder our constitutional system[,] courts are not roving commissions assigned to pass judgment on the validity of the Nation’s laws.” Broadrick v. Oklahoma, 413 U. S. 601 –611 (1973). Instead, the “judicial Power” is limited to deciding particular “Cases” and “Controversies.” U. S. Const., Art. III, §2. “Embedded in the traditional rules governing constitutional adjudication is the principle that a person to whom a statute may constitutionally be applied will not be heard to challenge that statute on the ground that it may conceivably be applied unconstitutionally to others, in other situations not before the Court.” Broadrick, 413 U. S., at 610. Yet the Court’s opinion in this case contains not a word explaining why Congress lacks the power to subject to preclearance the particular plaintiff that initiated this lawsuit—Shelby County, Alabama. The reason for the Court’s silence is apparent, for as applied to Shelby County, the VRA’s preclearance requirement is hardly contestable.
Alabama is home to Selma, site of the “Bloody Sunday” beatings of civil-rights demonstrators that served as the catalyst for the VRA’s enactment. Following those events, Martin Luther King, Jr., led a march from Selma to Montgomery, Alabama’s capital, where he called for passage of the VRA. If the Act passed, he foresaw, progress could be made even in Alabama, but there had to be a steadfast national commitment to see the task through to completion. In King’s words, “the arc of the moral universe is long, but it bends toward justice.” G. May, Bending Toward Justice: The Voting Rights Act and the Transformation of American Democracy 144 (2013).
History has proved King right. Although circumstances in Alabama have changed, serious concerns remain. Between 1982 and 2005, Alabama had one of the highest rates of successful §2 suits, second only to its VRA-covered neighbor Mississippi. 679 F. 3d, at 897 (Williams, J., dissenting). In other words, even while subject to the restraining effect of §5, Alabama was found to have “deni[ed] or abridge[d]” voting rights “on account of race or color” more frequently than nearly all other States in the Union. 42 U. S. C. §1973(a). This fact prompted the dissenting judge below to concede that “a more narrowly tailored coverage formula” capturing Alabama and a handful of other jurisdictions with an established track record of racial discrimination in voting “might be defensible.” 679 F. 3d, at 897 (opinion of Williams, J.). That is an understatement. Alabama’s sorry history of §2 violations alone provides sufficient justification for Congress’ determination in 2006 that the State should remain subject to §5’s preclearance requirement. 7
A few examples suffice to demonstrate that, at least in Alabama, the “current burdens” imposed by §5’s preclearance requirement are “justified by current needs.” Northwest Austin, 557 U. S., at 203. In the interim between the VRA’s 1982 and 2006 reauthorizations, this Court twice confronted purposeful racial discrimination in Alabama. In Pleasant Grove v. United States, 479 U. S. 462 (1987) , the Court held that Pleasant Grove—a city in Jefferson County, Shelby County’s neighbor—engaged in purposeful discrimination by annexing all-white areas while rejecting the annexation request of an adjacent black neighborhood. The city had “shown unambiguous opposition to racial integration, both before and after the passage of the fed-eral civil rights laws,” and its strategic annexations appeared to be an attempt “to provide for the growth of a monolithic white voting block” for “the impermissible purpose of minimizing future black voting strength.” Id., at 465, 471–472.
Two years before Pleasant Grove, the Court in Hunter v. Underwood, 471 U. S. 222 (1985) , struck down a provision of the Alabama Constitution that prohibited individuals convicted of misdemeanor offenses “involving moral turpitude” from voting. Id., at 223 (internal quotation marks omitted). The provision violated the Fourteenth Amendment’s Equal Protection Clause, the Court unanimously concluded, because “its original enactment was motivated by a desire to discriminate against blacks on account of race[,] and the [provision] continues to this day to have that effect.” Id., at 233.
Pleasant Grove and Hunter were not anomalies. In 1986, a Federal District Judge concluded that the at-large election systems in several Alabama counties violated §2. Dillard v. Crenshaw Cty., 640 F. Supp. 1347, 1354–1363 (MD Ala. 1986). Summarizing its findings, the court stated that “[f ]rom the late 1800’s through the present, [Alabama] has consistently erected barriers to keep black persons from full and equal participation in the social, economic, and political life of the state.” Id., at 1360.
The Dillard litigation ultimately expanded to include 183 cities, counties, and school boards employing discriminatory at-large election systems. Dillard v. Baldwin Cty. Bd. of Ed., 686 F. Supp. 1459, 1461 (MD Ala. 1988). One of those defendants was Shelby County, which eventually signed a consent decree to resolve the claims against it. See Dillard v. Crenshaw Cty., 748 F. Supp. 819 (MD Ala. 1990).
Although the Dillard litigation resulted in overhauls of numerous electoral systems tainted by racial discrimination, concerns about backsliding persist. In 2008, for example, the city of Calera, located in Shelby County, requested preclearance of a redistricting plan that “would have eliminated the city’s sole majority-black district, which had been created pursuant to the consent decree in Dillard.” 811 F. Supp. 2d 424, 443 (DC 2011). Although DOJ objected to the plan, Calera forged ahead with elections based on the unprecleared voting changes, resulting in the defeat of the incumbent African-American councilman who represented the former majority-black district. Ibid. The city’s defiance required DOJ to bring a §5 enforcement action that ultimately yielded appropriate redress, including restoration of the majority-black district. Ibid.; Brief for Respondent-Intervenors Earl Cunningham et al. 20.
A recent FBI investigation provides a further window into the persistence of racial discrimination in state politics. See United States v. McGregor, 824 F. Supp. 2d 1339, 1344–1348 (MD Ala. 2011). Recording devices worn by state legislators cooperating with the FBI’s investigation captured conversations between members of the state legislature and their political allies. The recorded conversations are shocking. Members of the state Senate derisively refer to African-Americans as “Aborigines” and talk openly of their aim to quash a particular gambling-related referendum because the referendum, if placed on the ballot, might increase African-American voter turnout. Id., at 1345–1346 (internal quotation marks omitted). See also id., at 1345 (legislators and their allies expressed concern that if the referendum were placed on the ballot, “ ‘[e]very black, every illiterate’ would be ‘bused [to the polls] on HUD financed buses’ ”). These conversations oc-curred not in the 1870’s, or even in the 1960’s, they took place in 2010. Id., at 1344–1345. The District Judge presiding over the criminal trial at which the recorded conversations were introduced commented that the “recordings represent compelling evidence that political exclusion through racism remains a real and enduring problem” in Alabama. Id., at 1347. Racist sentiments, the judge observed, “remain regrettably entrenched in the high echelons of state government.” Ibid.
These recent episodes forcefully demonstrate that §5’s preclearance requirement is constitutional as applied to Alabama and its political subdivisions. 8 And under our case law, that conclusion should suffice to resolve this case. See United States v. Raines, 362 U. S. 17 –25 (1960) (“[I]f the complaint here called for an application of the statute clearly constitutional under the Fifteenth Amendment, that should have been an end to the question of constitutionality.”). See also Nevada Dept. of Human Resources v. Hibbs, 538 U. S. 721, 743 (2003) (Scalia, J., dissenting) (where, as here, a state or local government raises a facial challenge to a federal statute on the ground that it exceeds Congress’ enforcement powers under the Civil War Amendments, the challenge fails if the opposing party is able to show that the statute “could constitutionally be applied to some jurisdictions”).
This Court has consistently rejected constitutional challenges to legislation enacted pursuant to Congress’ enforcement powers under the Civil War Amendments upon finding that the legislation was constitutional as applied to the particular set of circumstances before the Court. See United States v. Georgia, 546 U. S. 151, 159 (2006) (Title II of the Americans with Disabilities Act of 1990 (ADA) validly abrogates state sovereign immunity “insofar as [it] creates a private cause of action . . . for conduct that actually violates the Fourteenth Amendment”); Tennessee v. Lane, 541 U. S. 509 –534 (2004) (Title II of the ADA is constitutional “as it applies to the class of cases implicating the fundamental right of access to the courts”); Raines, 362 U. S., at 24–26 (federal statute proscribing deprivations of the right to vote based on race was constitutional as applied to the state officials before the Court, even if it could not constitutionally be applied to other parties). A similar approach is warranted here. 9
The VRA’s exceptionally broad severability provision makes it particularly inappropriate for the Court to allow Shelby County to mount a facial challenge to §§4(b) and 5 of the VRA, even though application of those provisions to the county falls well within the bounds of Congress’ legislative authority. The severability provision states:
“If any provision of [this Act] or the application thereof to any person or circumstances is held invalid, the remainder of [the Act] and the application of the provision to other persons not similarly situated or to other circumstances shall not be affected thereby.” 42 U. S. C. §1973p.
In other words, even if the VRA could not constitutionally be applied to certain States—e.g., Arizona and Alaska, see ante, at 8—§1973p calls for those unconstitutional applications to be severed, leaving the Act in place for juris-dictions as to which its application does not transgress constitutional limits.
Nevertheless, the Court suggests that limiting the jurisdictional scope of the VRA in an appropriate case would be “to try our hand at updating the statute.” Ante, at 22. Just last Term, however, the Court rejected this very argument when addressing a materially identical severability provision, explaining that such a provision is “Congress’ explicit textual instruction to leave unaffected the remainder of [the Act]” if any particular “application is unconstitutional.” National Federation of Independent Business v. Sebelius, 567 U. S. __, __ (2012) (plurality opinion) (slip op., at 56) (internal quotation marks omitted); id., at __ (Ginsburg, J., concurring in part, concurring in judgment in part, and dissenting in part) (slip op., at 60) (agreeing with the plurality’s severability analysis). See also Raines, 362 U. S., at 23 (a statute capable of some constitutional applications may nonetheless be susceptible to a facial challenge only in “that rarest of cases where this Court can justifiably think itself able confidently to discern that Congress would not have desired its legislation to stand at all unless it could validly stand in its every application”). Leaping to resolve Shelby County’s facial challenge without considering whether application of the VRA to Shelby County is constitutional, or even addressing the VRA’s severability provision, the Court’s opinion can hardly be described as an exemplar of restrained and moderate decisionmaking. Quite the opposite. Hubris is a fit word for today’s demolition of the VRA.B
The Court stops any application of §5 by holding that §4(b)’s coverage formula is unconstitutional. It pins this result, in large measure, to “the fundamental principle of equal sovereignty.” Ante, at 10–11, 23. In Katzenbach, however, the Court held, in no uncertain terms, that the principle “applies only to the terms upon which States are admitted to the Union, and not to the remedies for local evils which have subsequently appeared.” 383 U. S., at 328–329 (emphasis added).
Katzenbach, the Court acknowledges, “rejected the notion that the [equal sovereignty] principle operate[s] as a bar on differential treatment outside [the] context [of the admission of new States].” Ante, at 11 (citing 383 U. S., at 328–329) (emphasis omitted). But the Court clouds that once clear understanding by citing dictum from Northwest Austin to convey that the principle of equal sovereignty “remains highly pertinent in assessing subsequent disparate treatment of States.” Ante, at 11 (citing 557 U. S., at 203). See also ante, at 23 (relying on Northwest Austin’s “emphasis on [the] significance” of the equal-sovereignty principle). If the Court is suggesting that dictum in Northwest Austin silently overruled Katzenbach’s limitation of the equal sovereignty doctrine to “the admission of new States,” the suggestion is untenable. Northwest Austin cited Katzenbach’s holding in the course of declining to decide whether the VRA was constitutional or even what standard of review applied to the question. 557 U. S., at 203–204. In today’s decision, the Court ratchets up what was pure dictum in Northwest Austin, attributing breadth to the equal sovereignty principle in flat contradiction of Katzenbach. The Court does so with nary an explanation of why it finds Katzenbach wrong, let alone any discussion of whether stare decisis nonetheless counsels adherence to Katzenbach’s ruling on the limited “significance” of the equal sovereignty principle.
Today’s unprecedented extension of the equal sover-eignty principle outside its proper domain—the admission of new States—is capable of much mischief. Federal statutes that treat States disparately are hardly novelties. See, e.g., 28 U. S. C. §3704 (no State may operate or permit a sports-related gambling scheme, unless that State conducted such a scheme “at any time during the period beginning January 1, 1976, and ending August 31, 1990”); 26 U. S. C. §142(l) (EPA required to locate green building project in a State meeting specified population criteria); 42 U. S. C. §3796bb (at least 50 percent of rural drug enforcement assistance funding must be allocated to States with “a population density of fifty-two or fewer persons per square mile or a State in which the largest county has fewer than one hundred and fifty thousand people, based on the decennial census of 1990 through fiscal year 1997”); §§13925, 13971 (similar population criteria for funding to combat rural domestic violence); §10136 (specifying rules applicable to Nevada’s Yucca Mountain nuclear waste site, and providing that “[n]o State, other than the State of Nevada, may receive financial assistance under this subsection after December 22, 1987”). Do such provisions remain safe given the Court’s expansion of equal sovereignty’s sway?
Of gravest concern, Congress relied on our pathmarking Katzenbach decision in each reauthorization of the VRA. It had every reason to believe that the Act’s limited geographical scope would weigh in favor of, not against, the Act’s constitutionality. See, e.g., United States v. Morrison, 529 U. S. 598 –627 (2000) (confining preclearance regime to States with a record of discrimination bolstered the VRA’s constitutionality). Congress could hardly have foreseen that the VRA’s limited geographic reach would render the Act constitutionally suspect. See Persily 195 (“[S]upporters of the Act sought to develop an evidentiary record for the principal purpose of explaining why the covered jurisdictions should remain covered, rather than justifying the coverage of certain jurisdictions but not others.”).
In the Court’s conception, it appears, defenders of the VRA could not prevail upon showing what the record overwhelmingly bears out, i.e., that there is a need for continuing the preclearance regime in covered States. In addition, the defenders would have to disprove the existence of a comparable need elsewhere. See Tr. of Oral Arg. 61–62 (suggesting that proof of egregious episodes of racial discrimination in covered jurisdictions would not suffice to carry the day for the VRA, unless such episodes are shown to be absent elsewhere). I am aware of no precedent for imposing such a double burden on defenders of legislation.C
The Court has time and again declined to upset legislation of this genre unless there was no or almost no evidence of unconstitutional action by States. See, e.g., City of Boerne v. Flores, 521 U. S. 507, 530 (1997) (legislative record “mention[ed] no episodes [of the kind the legislation aimed to check] occurring in the past 40 years”). No such claim can be made about the congressional record for the 2006 VRA reauthorization. Given a record replete with examples of denial or abridgment of a paramount federal right, the Court should have left the matter where it belongs: in Congress’ bailiwick.
Instead, the Court strikes §4(b)’s coverage provision because, in its view, the provision is not based on “current conditions.” Ante, at 17. It discounts, however, that one such condition was the preclearance remedy in place in the covered jurisdictions, a remedy Congress designed both to catch discrimination before it causes harm, and to guard against return to old ways. 2006 Reauthorization §2(b)(3), (9). Volumes of evidence supported Congress’ de-termination that the prospect of retrogression was real. Throwing out preclearance when it has worked and is continuing to work to stop discriminatory changes is like throwing away your umbrella in a rainstorm because you are not getting wet.
But, the Court insists, the coverage formula is no good; it is based on “decades-old data and eradicated practices.” Ante, at 18. Even if the legislative record shows, as engaging with it would reveal, that the formula accurately identifies the jurisdictions with the worst conditions of voting discrimination, that is of no moment, as the Court sees it. Congress, the Court decrees, must “star[t] from scratch.” Ante, at 23. I do not see why that should be so.
Congress’ chore was different in 1965 than it was in 2006. In 1965, there were a “small number of States . . . which in most instances were familiar to Congress by name,” on which Congress fixed its attention. Katzenbach, 383 U. S., at 328. In drafting the coverage formula, “Congress began work with reliable evidence of actual voting discrimination in a great majority of the States” it sought to target. Id., at 329. “The formula [Congress] eventually evolved to describe these areas” also captured a few States that had not been the subject of congressional factfinding. Ibid. Nevertheless, the Court upheld the formula in its entirety, finding it fair “to infer a significant danger of the evil” in all places the formula covered. Ibid.
The situation Congress faced in 2006, when it took up reauthorization of the coverage formula, was not the same. By then, the formula had been in effect for many years, and all of the jurisdictions covered by it were “familiar to Congress by name.” Id., at 328. The question before Congress: Was there still a sufficient basis to support continued application of the preclearance remedy in each of those already-identified places? There was at that point no chance that the formula might inadvertently sweep in new areas that were not the subject of congressional findings. And Congress could determine from the record whether the jurisdictions captured by the coverage for-mula still belonged under the preclearance regime. If they did, there was no need to alter the formula. That is why the Court, in addressing prior reauthorizations of the VRA, did not question the continuing “relevance” of the formula.
Consider once again the components of the record before Congress in 2006. The coverage provision identified a known list of places with an undisputed history of serious problems with racial discrimination in voting. Recent evidence relating to Alabama and its counties was there for all to see. Multiple Supreme Court decisions had upheld the coverage provision, most recently in 1999. There was extensive evidence that, due to the preclearance mechanism, conditions in the covered jurisdictions had notably improved. And there was evidence that preclearance was still having a substantial real-world effect, having stopped hundreds of discriminatory voting changes in the covered jurisdictions since the last reauthorization. In addition, there was evidence that racial polarization in voting was higher in covered jurisdictions than elsewhere, increasing the vulnerability of minority citizens in those jurisdictions. And countless witnesses, reports, and case studies documented continuing problems with voting dis-crimination in those jurisdictions. In light of this record, Congress had more than a reasonable basis to conclude that the existing coverage formula was not out of sync with conditions on the ground in covered areas. And certainly Shelby County was no candidate for release through the mechanism Congress provided. See supra, at 22–23, 26–28.
The Court holds §4(b) invalid on the ground that it is “irrational to base coverage on the use of voting tests 40 years ago, when such tests have been illegal since that time.” Ante, at 23. But the Court disregards what Congress set about to do in enacting the VRA. That extraordinary legislation scarcely stopped at the particular tests and devices that happened to exist in 1965. The grand aim of the Act is to secure to all in our polity equal citizenship stature, a voice in our democracy undiluted by race. As the record for the 2006 reauthorization makes abundantly clear, second-generation barriers to minority voting rights have emerged in the covered jurisdictions as attempted substitutes for the first-generation barriers that originally triggered preclearance in those jurisdictions. See supra, at 5–6, 8, 15–17.
The sad irony of today’s decision lies in its utter failure to grasp why the VRA has proven effective. The Court appears to believe that the VRA’s success in eliminating the specific devices extant in 1965 means that preclearance is no longer needed. Ante, at 21–22, 23–24. With that belief, and the argument derived from it, history repeats itself. The same assumption—that the problem could be solved when particular methods of voting discrimination are identified and eliminated—was indulged and proved wrong repeatedly prior to the VRA’s enactment. Unlike prior statutes, which singled out particular tests or devices, the VRA is grounded in Congress’ recognition of the “variety and persistence” of measures designed to impair minority voting rights. Katzenbach, 383 U. S., at 311; supra, at 2. In truth, the evolution of voting discrimination into more subtle second-generation barriers is powerful evidence that a remedy as effective as preclearance remains vital to protect minority voting rights and prevent backsliding.
Beyond question, the VRA is no ordinary legislation. It is extraordinary because Congress embarked on a mission long delayed and of extraordinary importance: to realize the purpose and promise of the Fifteenth Amendment. For a half century, a concerted effort has been made to end racial discrimination in voting. Thanks to the Voting Rights Act, progress once the subject of a dream has been achieved and continues to be made.
The record supporting the 2006 reauthorization of the VRA is also extraordinary. It was described by the Chairman of the House Judiciary Committee as “one of the most extensive considerations of any piece of legislation that the United States Congress has dealt with in the 27½ years” he had served in the House. 152 Cong. Rec. H5143 (July 13, 2006) (statement of Rep. Sensenbrenner). After exhaustive evidence-gathering and deliberative process, Congress reauthorized the VRA, including the coverage provision, with overwhelming bipartisan support. It was the judgment of Congress that “40 years has not been a sufficient amount of time to eliminate the vestiges of discrimination following nearly 100 years of disregard for the dictates of the 15th amendment and to ensure that the right of all citizens to vote is protected as guaranteed by the Constitution.” 2006 Reauthorization §2(b)(7), 120Stat. 577. That determination of the body empowered to enforce the Civil War Amendments “by appropriate legislation” merits this Court’s utmost respect. In my judgment, the Court errs egregiously by overriding Congress’ decision.* * *
For the reasons stated, I would affirm the judgment of the Court of Appeals.
1 The Court purports to declare unconstitutional only the coverage formula set out in §4(b). See ante, at 24. But without that formula, §5 is immobilized.
2 The Constitution uses the words “right to vote” in five separate places: the Fourteenth, Fifteenth, Nineteenth, Twenty-Fourth, and Twenty-Sixth Amendments. Each of these Amendments contains the same broad empowerment of Congress to enact “appropriate legislation” to enforce the protected right. The implication is unmistakable: Under our constitutional structure, Congress holds the lead rein in making the right to vote equally real for all U. S. citizens. These Amendments are in line with the special role assigned to Congress in protecting the integrity of the democratic process in federal elections. U. S. Const., Art. I, §4 (“[T]he Congress may at any time by Law make or alter” regulations concerning the “Times, Places and Manner of holding Elections for Senators and Representatives.”); Arizona v. Inter Tribal Council of Ariz., Inc., ante, at 5–6.
3 Acknowledging the existence of “serious constitutional questions,” see ante, at 22 (internal quotation marks omitted), does not suggest how those questions should be answered.
4 This number includes only changes actually proposed. Congress also received evidence that many covered jurisdictions engaged in an “informal consultation process” with DOJ before formally submitting a proposal, so that the deterrent effect of preclearance was far broader than the formal submissions alone suggest. The Continuing Need for Section 5 Pre-Clearance: Hearing before the Senate Committee on the Judiciary, 109th Cong., 2d Sess., pp. 53–54 (2006). All agree that an unsupported assertion about “deterrence” would not be sufficient to justify keeping a remedy in place in perpetuity. See ante, at 17. But it was certainly reasonable for Congress to consider the testimony of witnesses who had worked with officials in covered jurisdictions and observed a real-world deterrent effect.
5 For an illustration postdating the 2006 reauthorization, see South Carolina v. United States, 898 F. Supp. 2d 30 (DC 2012), which involved a South Carolina voter-identification law enacted in 2011. Concerned that the law would burden minority voters, DOJ brought a §5 enforcement action to block the law’s implementation. In the course of the litigation, South Carolina officials agreed to binding interpretations that made it “far easier than some might have expected or feared” for South Carolina citizens to vote. Id., at 37. A three-judge panel precleared the law after adopting both interpretations as an express “condition of preclearance.” Id., at 37–38. Two of the judges commented that the case demonstrated “the continuing utility of Section 5 of the Voting Rights Act in deterring problematic, and hence encouraging non-discriminatory, changes in state and local voting laws.” Id., at 54 (opinion of Bates, J.).
6 Because preclearance occurs only in covered jurisdictions and can be expected to stop the most obviously objectionable measures, one would expect a lower rate of successful §2 lawsuits in those jurisdictions ifthe risk of voting discrimination there were the same as elsewhere in the country.
7 This lawsuit was filed by Shelby County, a political subdivision of Alabama, rather than by the State itself. Nevertheless, it is appropriate to judge Shelby County’s constitutional challenge in light of instances of discrimination statewide because Shelby County is subject to §5’s preclearance requirement by virtue of Alabama’s designation as a covered jurisdiction under §4(b) of the VRA. See ante, at 7. In any event, Shelby County’s recent record of employing an at-large electoral system tainted by intentional racial discrimination is by itself sufficient to justify subjecting the county to §5’s preclearance mandate. See infra, at 26.
8 Congress continued preclearance over Alabama, including Shelby County, after considering evidence of current barriers there to minority voting clout. Shelby County, thus, is no “redhead” caught up in an arbitrary scheme. See ante, at 22.
9 The Court does not contest that Alabama’s history of racial discrimination provides a sufficient basis for Congress to require Alabama and its political subdivisions to preclear electoral changes. Nevertheless, the Court asserts that Shelby County may prevail on its facial challenge to §4’s coverage formula because it is subject to §5’s preclearance requirement by virtue of that formula. See ante, at 22 (“The county was selected [for preclearance] based on th[e] [coverage] formula.”). This misses the reality that Congress decided to subject Alabama to preclearance based on evidence of continuing constitutional violations in that State. See supra, at 28, n. 8.
SUPREME COURT OF THE UNITED STATES
SHELBY COUNTY, ALABAMA, PETITIONER v. ERIC H. HOLDER, Jr., ATTORNEY GENERAL, et al.
on writ of certiorari to the united states court of appeals for the district of columbia circuit
[June 25, 2013]
Justice Thomas, concurring.
I join the Court’s opinion in full but write separately to explain that I would find §5 of the Voting Rights Act unconstitutional as well. The Court’s opinion sets forth the reasons.
“The Voting Rights Act of 1965 employed extraordinary measures to address an extraordinary problem.” Ante, at 1. In the face of “unremitting and ingenious defiance” of citizens’ constitutionally protected right to vote, §5 was necessary to give effect to the Fifteenth Amendment in particular regions of the country. South Carolina v. Katzen-bach, 383 U. S. 301, 309 (1966) . Though §5’s preclearance requirement represented a “shar[p] depart[ure]” from “basic principles” of federalism and the equal sovereignty of the States, ante, at 9, 11, the Court upheld the measure against early constitutional challenges because it was necessary at the time to address “voting discrimination where it persist[ed] on a pervasive scale.” Katzenbach, supra, at 308.
Today, our Nation has changed. “[T]he conditions that originally justified [§5] no longer characterize voting in the covered jurisdictions.” Ante, at 2. As the Court explains: “ ‘[V]oter turnout and registration rates now approach parity. Blatantly discriminatory evasions of federal decrees are rare. And minority candidates hold office at un-precedented levels.’ ” Ante, at 13–14 (quoting Northwest Austin Municipal Util. Dist. No. One v. Holder, 557 U. S. 193, 202 (2009) ).
In spite of these improvements, however, Congress increased the already significant burdens of §5. Following its reenactment in 2006, the Voting Rights Act was amended to “prohibit more conduct than before.” Ante, at 5. “Section 5 now forbids voting changes with ‘any dis-criminatory purpose’ as well as voting changes that diminish the ability of citizens, on account of race, color, or language minority status, ‘to elect their preferred candidates of choice.’ ” Ante, at 6. While the pre-2006 version of the Act went well beyond protection guaranteed under the Constitution, see Reno v. Bossier Parish School Bd., 520 U. S. 471 –482 (1997), it now goes even further.
It is, thus, quite fitting that the Court repeatedly points out that this legislation is “extraordinary” and “unprecedented” and recognizes the significant constitutional problems created by Congress’ decision to raise “the bar that covered jurisdictions must clear,” even as “the conditions justifying that requirement have dramatically improved.” Ante, at 16–17. However one aggregates the data compiled by Congress, it cannot justify the considerable burdens created by §5. As the Court aptly notes: “[N]o one can fairly say that [the record] shows anything approaching the ‘pervasive,’ ‘flagrant,’ ‘widespread,’ and ‘rampant’ discrimination that faced Congress in 1965, and that clearly distinguished the covered jurisdictions from the rest of the Nation at that time.” Ante, at 21. Indeed, circumstances in the covered jurisdictions can no longer be characterized as “exceptional” or “unique.” “The extensive pattern of discrimination that led the Court to previously uphold §5 as enforcing the Fifteenth Amendment no longer exists.” Northwest Austin, supra, at 226 (Thomas, J., concurring in judgment in part and dissenting in part). Section 5 is, thus, unconstitutional.
While the Court claims to “issue no holding on §5 itself,” ante, at 24, its own opinion compellingly demonstrates that Congress has failed to justify “ ‘current burdens’ ” with a record demonstrating “ ‘current needs.’ ” See ante, at 9 (quoting Northwest Austin, supra, at 203). By leaving the inevitable conclusion unstated, the Court needlessly prolongs the demise of that provision. For the reasons stated in the Court’s opinion, I would find §5 unconstitutional.
ORAL ARGUMENT OF BERT W. REIN ON BEHALF OF THE PETITIONER
Chief Justice John G. Roberts: We'll hear argument first this morning in Case 12-96, Shelby County v. Holder.
Bert W Rein: Mr. Chief Justice, and may it please the Court:
Almost 4 years ago, eight Justices of the Court agreed the 2005 25-year extension of Voting Rights Act Section 5's preclearance obligation, uniquely applicable to jurisdictions reached by Section 4(b)'s antiquated coverage formula, raised a serious constitutional question.
Those Justices recognized that the record before the Congress in 2005 made it unmistakable that the South had changed.
They questioned whether current remedial needs justified the extraordinary federalism and cost burdens of preclearance.
Justice Sonia Sotomayor: May I ask you a question?
Assuming I accept your premise, and there's some question about that, that some portions of the South have changed, your county pretty much hasn't.
Bert W Rein: Well, I--
Justice Sonia Sotomayor: In -- in the period we're talking about, it has many more discriminating -- 240 discriminatory voting laws that were blocked by Section 5 objections.
There were numerous remedied by Section 2 litigation.
You may be the wrong party bringing this.
Bert W Rein: --Well, this is an on-face challenge, and might I say, Justice Sotomayor--
Justice Sonia Sotomayor: But that's the standard.
And why would we vote in favor of a county whose record is the epitome of what caused the passage of this law to start with?
Bert W Rein: --Well, I don't agree with your premises, but let me just say, number one, when I said the South has changed, that is the statement that is made by the eight Justices in the Northwest Austin case.
And I certainly--
Justice Ruth Bader Ginsburg: And Congress -- Congress said that, too.
Nobody -- there isn't anybody in -- on any side of this issue who doesn't admit that huge progress has been made.
Congress itself said that.
But in line with Justice Sotomayor's question, in the D.C. Court of Appeals, the dissenting judge there, Judge Williams, said,
"If this case were about three States, Mississippi, Louisiana, and Alabama, those States have the worst records, and application of Section 5 to them might be okay. "
Bert W Rein: --Justice Ginsburg, Judge Williams said that, as he assessed various measures in the record, he thought those States might be distinguished.
He did not say, and he didn't reach the question, whether those States should be subject to preclearance.
In other words, whether on an absolute basis, there was sufficient record to subject them--
Justice Elena Kagan: But think about this State that you're representing, it's about a quarter black, but Alabama has no black statewide elected officials.
If Congress were to write a formula that looked to the number of successful Section 2 suits per million residents, Alabama would be the number one State on the list.
If you factor in unpublished Section 2 suits, Alabama would be the number two State on the list.
If you use the number of Section 5 enforcement actions, Alabama would again be the number two State on the list.
I mean, you're objecting to a formula, but under any formula that Congress could devise, it would capture Alabama.
Bert W Rein: --Well, if -- if I might respond, because I think Justice Sotomayor had a similar question, and that is why should this be approached on face.
Going back to Katzenbach, and all of the cases that have addressed the Voting Rights Act preclearance and the formula, they've all been addressed to determine the validity of imposing preclearance under the circumstances then prevailing, and the formula, because Shelby County is covered, not by an independent determination of Congress with respect to Shelby County, but because it falls within the formula as part of the State of Alabama.
So I -- I don't think that there's any reluctance upon on this--
Justice Sonia Sotomayor: But facial challenges are generally disfavored in our law.
And so the question becomes, why do we strike down a formula, as Justice Kagan said, which under any circumstance the record shows the remedy would be congruent, proportional, rational, whatever standard of review we apply, its application to Alabama would happen.
Bert W Rein: --There -- there are two separate questions.
One is whether the formula needs to be addressed.
In Northwest Austin, this Court addressed the formula, and the circumstances there were a very small jurisdiction, as the Court said, approaching a very big question.
It did the same in Rome, the City of Rome.
It did the same in Katzenbach.
The -- so the formula itself is the reason why Shelby County encounters the burdens, and it is the reason why the Court needs to address it.
Justice Sonia Sotomayor: Interestingly enough, in Katzenbach the Court didn't do what you're asking us to do, which is to look at the record of all the other States or all of the other counties.
It basically concentrated on the record of the two litigants in the case, and from that extrapolate -- extrapolated more broadly.
Bert W Rein: I don't think that--
Justice Sonia Sotomayor: You're asking us to do something, which is to ignore your record and look at everybody else's.
Bert W Rein: --I don't think that's a fair reading of Katzenbach.
In Katzenbach, what the Court did was examined whether the -- the formula was rational in practice and theory.
And what the Court said is, while we don't have evidence on every jurisdiction that's reached by the formula, that by devising two criteria which were predictive of where discrimination might lie, the Congress could then sweep in jurisdictions as to which it had no specific findings.
So we're not here to parse the jurisdictions.
We are here to challenge this formula because in and of itself it speaks to old data, it isn't probative with respect to the kinds of discrimination that Congress was focusing on and it is an inappropriate vehicle to sort out the sovereignty of individual States.
I could tell you that in Alabama the number of legislators in the Alabama legislature are proportionate to the number of black voters.
There's a very high registration and turnout of black voters in Alabama.
But I don't think that that really addresses the issue of the rationality in theory and practice in the formula.
If Congress wants to write another statute, another hypothetical statute, that would present a different case.
But we're here facing a county, a State that are swept in by a formula that is neither rational in theory nor in practice.
That's the -- that's the hub of the case.
Justice Anthony Kennedy: I suppose the thrust of the questions so far has been if you would be covered under any formula that most likely would be drawn, why are you injured under this one?
Bert W Rein: Well, we don't agree that we would be covered under any formula.
Justice Anthony Kennedy: But that's -- that's the hypothesis.
If you could be covered under most suggested formulas for this kind of statute, why are you injured by this one?
I think that's the thrust of the question.
Bert W Rein: Well, I think that if -- if Congress has the power to look at jurisdictions like Shelby County individually and without regard to how they stand against other States -- other counties, other States, in other words, what is the discrimination here among the jurisdictions, and after thoroughly considering each and every one comes up with a list and says this list greatly troubles us, that might present a vehicle for saying this is a way to sort out the covered jurisdictions--
Justice Samuel Alito: Suppose Congress passed a law that said, everyone whose last name begins with A shall pay a special tax of $1,000 a year.
And let's say that tax is challenged by somebody whose last name begins with A.
Would it be a defense to that challenge that for some reason this particular person really should pay a $1,000 penalty that people with a different last name do not pay?
Bert W Rein: --No, because that would just invent another statute, and this is all a debate as to whether somebody might invent a statute which has a formula that is rational.
Justice Antonin Scalia: I was about to ask a similar question.
If someone is acquitted of a Federal crime, would it -- would the prosecution be able to say, well, okay, he didn't commit this crime, but Congress could have enacted a different statute which he would have violated in this case.
Of course, you wouldn't listen to that, would you?
Bert W Rein: No, I agree with you.
Justice Sonia Sotomayor: The problem with those hypotheticals is obvious that it starts from a predicate that the application has no basis in any record, but there's no question that Alabama was rightly included in the original Voting Rights Act.
There's no challenge to the reauthorization acts.
The only question is whether a formula should be applied today.
And the point is that the record is replete with evidence to show that you should.
Bert W Rein: Well, I mean--
Justice Sonia Sotomayor: It's not like there's some made-up reason for why the $1,000 is being applied to you or why a different crime is going to be charged against you.
It's a real record as to what Alabama has done to earn its place on the list.
Bert W Rein: --Justice Sotomayor, with all respect, the question whether Alabama was properly placed under the act in 1964 was -- it was answered in Katzenbach, because it came under a formula then deemed to be rational in theory and in practice.
There's no independent determination by the Congress that Alabama singly should be covered.
Congress has up -- you know, has readopted the formula and it is the formula that covers Alabama and thus Shelby County--
Justice Stephen G. Breyer: Now, the reason for the formula -- of course, part of the formula looks back to what happened in 1965.
And it says are you a jurisdiction that did engage in testing and had low turnout or -- or low registration?
Now, that isn't true of Alabama today.
Bert W Rein: --That's correct.
Justice Stephen G. Breyer: So when Congress in fact reenacted this in 2005, it knew what it was doing was picking out Alabama.
It understood it was picking out Alabama, even though the indicia are not -- I mean, even though they're not engaging in that particular thing.
But the underlying evil is the discrimination.
So the closest analogy I could think of is imagine a State has a plant disease and in 1965 you can recognize the presence of that disease, which is hard to find, by a certain kind of surface movement or plant growing up.
Now, it's evolved.
So by now, when we use that same formula, all we're doing is picking out that State.
But we know one thing: The disease is still there in the State.
Because this is a question of renewing a statute that in fact has worked.
And so the question I guess is, is it rational to pick out at least some of those States?
And to go back to Justice Sotomayor's question, as long as it's rational in at least some instances directly to pick out those States, at least one or two of them, then doesn't the statute survive a facial challenge?
That's the question.
Bert W Rein: Thank you.
Justice Breyer, a couple of things are important.
The Court said in Northwest Austin, an opinion you joined,
"Current needs have to generate the current burden. "
So what happened in 1965 in Alabama, that Alabama itself has said was a disgrace, doesn't justify a current burden.
Justice Stephen G. Breyer: But this is then the question, does it justify?
I mean, this isn't a question of rewriting the statute.
This is a question of renewing a statute that by and large has worked.
Bert W Rein: Justice Breyer--
Justice Stephen G. Breyer: And if you have a statute that sunsets, you might say: I don't want it to sunset if it's worked, as long as the problem is still there to some degree.
That's the question of rationality.
Isn't that what happened?
Bert W Rein: --If you base it on the findings of 1965.
I could take the decision in City of Rome, which follows along that line.
We had a huge problem at the first passage of the Voting Rights Act and the Court was tolerant of Congress's decision that it had not yet been cured.
There were vestiges of discrimination.
So when I look at those statistics today and look at what Alabama has in terms of black registration and turnout, there's no resemblance.
We're dealing with a completely changed situation--
Justice Ruth Bader Ginsburg: You keep -- you keep--
Bert W Rein: --to which if you apply those metrics -- excuse me.
Justice Ruth Bader Ginsburg: --Mr. Rein, you keep emphasizing over and over again in your brief registration and you said it a couple of times this morning.
Congress was well aware that registration was no longer the problem.
This legislative record is replete with what they call second generation devices.
Congress said up front: We know that the registration is fine.
That is no longer the problem.
But the discrimination continues in other forms.
Bert W Rein: Let me speak to that, because I think that that highlights one of the weaknesses here.
On the one hand, Justice Breyer's questioning, well, could Congress just continue based on what it found in '65 and renew?
And I think your question shows it's a very different situation.
Congress is not continuing its efforts initiated in 1975 to allow people--
Justice Sonia Sotomayor: Counsel, the reason Section 5 was created was because States were moving faster than litigation permitted to catch the new forms of discriminatory practices that were being developed.
As the courts struck down one form, the States would find another.
And basically, Justice Ginsburg calls it secondary.
I don't know that I'd call anything secondary or primary.
Discrimination is discrimination.
And what Congress said is it continues, not in terms of voter numbers, but in terms of examples of other ways to disenfranchise voters, like moving a voting booth from a convenient location for all voters to a place that historically has been known for discrimination.
I think that's an example taken from one of the Section 2 and 5 cases from Alabama.
Bert W Rein: --Justice Sotomayor--
Justice Sonia Sotomayor: I mean, I don't know what the difference is except that this Court or some may think that secondary is not important.
But the form of discrimination is still discrimination if Congress has found it to be so.
Bert W Rein: --When Congress is addressing a new evil, it needs then -- and assuming it can find this evil to a level justifying--
Justice Sonia Sotomayor: But that's not--
Bert W Rein: --the extraordinary remedy--
Justice Sonia Sotomayor: --what it did with Section 5.
It said we can't keep up with the way States are doing it.
Bert W Rein: --I think we're dealing with two different questions.
One is was that kind of remedy, an unusual remedy, never before and never after invoked by the Congress, putting States into a prior restraint in the exercise of their core sovereign functions, was that justified?
And in Katzenbach, the Court said we're confronting an emergency in the country, we're confronting people who will not, who will not honor the Fifteenth Amendment and who will use--
Justice Elena Kagan: And in 1986 -- or excuse me, 2006 -- Congress went back to the problem, developed a very substantial record, a 15,000-page legislative record, talked about what problems had been solved, talked about what problems had yet to be solved, and decided that, although the problem had changed, the problem was still evident enough that the act should continue.
It's hard to see how Congress could have developed a better and more thorough legislative record than it did, Mr. Rein.
Bert W Rein: --Well, I'm not questioning whether Congress did its best.
The question is whether what Congress found was adequate to invoke this unusual remedy.
Justice Antonin Scalia: Indeed, Congress must have found that the situation was even clearer and the violations even more evident than originally, because originally, the vote in the Senate, for example, was something like 79 to 18, and in the 2006 extension, it was 98 to nothing.
It must have been even clearer in 2006 that these States were violating the Constitution.
Do you think that's true?
Bert W Rein: No.
I think the Court has to--
Justice Elena Kagan: Well, that sounds like a good argument to me, Justice Scalia.
It was clear to 98 Senators, including every Senator from a covered State, who decided that there was a continuing need for this piece of legislation.
Justice Antonin Scalia: Or decided that perhaps they'd better not vote against it, that there's nothing, that there's no -- none of their interests in voting against it.
Justice Stephen G. Breyer: I don't know what they're thinking exactly, but it seems to me one might reasonably think this: It's an old disease, it's gotten a lot better, a lot better, but it's still there.
So if you had a remedy that really helped it work, but it wasn't totally over, wouldn't you keep that remedy?
Bert W Rein: --Well--
Justice Stephen G. Breyer: Or would you not at least say that a person who wants to keep that remedy, which has worked for that old disease which is not yet dead, let's keep it going.
Is that an irrational decision?
Bert W Rein: --That is a hypothetical that doesn't address what happened, because what happened is the old disease, limiting people's right to register and vote, to have--
Justice Stephen G. Breyer: No, I'm sorry.
The old disease is discrimination under the Fifteenth Amendment, which is abridging a person's right to vote because of color or race.
Bert W Rein: --But the focus of the Congress in 1965 and in Katzenbach in 1964 and in Katzenbach was on registration and voting, precluding--
Justice Sonia Sotomayor: It was on voter dilution as well.
It had already evolved away from that, or started to.
Bert W Rein: --I beg your pardon, but I think, Justice Sotomayor, that this Court has never decided that the Fifteenth Amendment governs vote dilution.
It has said the Fourteenth Amendment does, but the original enactment was under the Fifteenth Amendment.
Justice Elena Kagan: Well, the Fifteenth Amendment says “ denial or abridgement ”.
What would “ abridgement ” mean except for dilution?
Bert W Rein: Well, “ abridgement ” might mean, for example, I let you vote in one election but not in another; for example, separate primary rules from election rules.
Abridgement can be done in many ways.
I think dilution is a different concept.
We're not saying that dilution isn't covered by the Fourteenth Amendment, but I was responding to Justice Breyer in saying there was an old disease and that disease is cured.
If you want to label it “ disease ” and generalize it, you can say, well, the new disease is still a disease.
Justice Anthony Kennedy: Well, some of--
Bert W Rein: But I think that's not what happened.
Justice Anthony Kennedy: --Some of the questions asked to this point I think mirror what the Government says toward the end of its brief, page 48 and page 49.
It's rather proud of this reverse engineering: We really knew it was some specific States we were interested in, and so we used these old categories to cover that State.
Is that a methodology that in your view is appropriate under the test of congruence and -- and proportionality?
Bert W Rein: No, I think it is not.
First of all, I don't accept that it was, quote, “ reverse engineered ”.
I think it was just, as Justice Breyer indicated, continued because it was there.
If you look at what was done and was approved in 1964, what Congress said, well, here are the problem areas that we detect.
We've examined them in detail.
We've identified the characteristics that would let somebody say, yes, that's where the discrimination is ripe.
They're using a tester device.
The turnout is below the national average by a substantial margin.
That spells it out and we have a relief valve in the then-existing bailout.
So it was all very rational.
Here you'd have to say is the finding with respect to every State -- Alaska, Arizona, the covered jurisdictions in New York City -- is the designation of them congruent to the problem that you detect in each one?
Even assuming -- and we don't accept -- that any of these problems require the kind of extraordinary relief, what's the congruence and what's the proportionality of this remedy to the violation you detect State by State.
So merely saying it's reverse engineered, first of all it says, well, Congress really thought about it and said, we made up a list in our heads and, gee whiz, this old formula miraculously covered the list.
There's no record that that happened.
Justice Sonia Sotomayor: Counsel, are you--
Justice Anthony Kennedy: Suppose -- suppose there were and suppose that's the rationale, because that's what I got from the Government's brief and what I'm getting -- getting from some of the questions from the bench.
What is wrong with that?
Bert W Rein: If -- if there was a record sufficient for each of those States to sacrifice their -- their inherent core power to preclearance, to prior restraint, I think that you certainly could argue that, well, how Congress described them, as long as it's rational, might work.
But I don't think that we have that record here, so--
Justice Anthony Kennedy: Well, and -- and I don't know why -- why you even go that far.
I don't know why under the equal footing doctrine it would be proper to just single out States by name, and if that in effect is what is being done, that seemed to me equally improper.
But you don't seem to make that argument.
Bert W Rein: --Well, I think that--
Justice Antonin Scalia: I thought -- I thought the same thing.
I thought it's sort of extraordinary to say Congress can just pick out, we want to hit these eight States, it doesn't matter what formula we use; so long as we want to hit these eight States, that's good enough and that makes it constitutional.
I doubt that that's true.
Bert W Rein: --Justice Scalia, I agree with that.
What I was saying here is that Congress did--
Justice Sonia Sotomayor: --Why?
Why does Congress have to fix any problem immediately?
Justice Anthony Kennedy: I would like to hear the answer to the question.
Bert W Rein: --Okay.
The answer, Justice Kennedy, is Congress cannot arbitrarily pick out States.
Congress has to treat each State with equal dignity.
It has to examine all the States.
The teaching of Katzenbach is that when Congress has done that kind of examination, it can devise a formula even if it understands that that formula will not apply across all 50 States.
Justice Elena Kagan: Well, the formula that has--
Bert W Rein: So we accept Katzenbach.
But in terms of just picking out States and saying, I'm going to look at you and I'm going to look at you, no, that -- that does not protect the equal dignity of the States.
Justice Elena Kagan: --Well, Mr. Rein, the formula that -- that is applied right now, under that formula covered jurisdictions, which have less than 25 percent of the nation's total population, they account for 56 percent of all successful published Section 2 lawsuits.
If you do that on a per capita basis, the successful Section 2 lawsuits, four times higher in covered jurisdictions than in noncovered jurisdictions.
So the formula -- you can, you know, say maybe this district shouldn't be covered, maybe this one should be covered.
The formula seems to be working pretty well in terms of going after the actual violations on the ground and who's committing them.
Bert W Rein: There are -- there are two fallacies, Justice Kagan, in -- in that statement.
Number one is treating the covered jurisdictions as some kind of entity, a lump: Let us treat them.
And as Judge Williams did in his dissent, if you look at them one by one, giving them their equal dignity, you won't reach the same result.
Justice Elena Kagan: Well, all formulas are underinclusive and all formulas are overinclusive.
Congress has developed this formula and has continued it in use that actually seems to work pretty well in targeting the places where there are the most successful Section 2 lawsuits, where there are the most violations on the ground that have been adjudicated.
Bert W Rein: Well, if -- if you look at the analysis State by State done by Judge Williams, that isn't true.
Congress has picked out some states that fall at the top and some that do not, and there are other States like Illinois or Tennessee, and I don't think they deserve preclearance, that clearly have comparable records.
And second, dividing by population may make it look it look better, but it is irrational.
It is not only irrational when we object to it, but note that in the brief of the Harris Respondent they say it's irrational because, after all, that makes Delaware, a small State, look worse on a list of who are the primary violators.
It's not a useful metric.
It may make a nice number.
But there is no justification for that measure.
Justice Antonin Scalia: And it happens not to be the method that Congress selected.
Bert W Rein: Correct.
Justice Antonin Scalia: If they selected that, you could say they used a rationale that works.
But just because they picked some other rationale which happens to produce this result doesn't seem to me very persuasive.
Justice Anthony Kennedy: Your time is--
Bert W Rein: Thank you.
Justice Anthony Kennedy: --about ready to expire for the rebuttal period.
But I do have this question: Can you tell me -- it seems to me that the Government can very easily bring a Section 2 suit and as part of that ask for bail-in under Section 3.
Are those expensive, time-consuming suits?
Do we have anything in the record that tells us or anything in the bar's experience that you could advise us?
Bert W Rein: Well--
Justice Anthony Kennedy: Is this an effective remedy?
Bert W Rein: --It is -- number one, it is effective.
There are preliminary injunctions.
It depends on the kind of dispute you have.
Some of them are very complex, and it would be complex if somebody brought -- a State brought a Section 5 challenge in a three-judge court saying the attorney general's denied me preclearance.
So it's the complexity of the question, not the nature of Section 2.
And might I say, if you look at the Voting Rights Act, one thing that really stands out is you are up against States with entrenched discriminatory practices in their law.
The remedy Congress put in place for those States was Section 2.
And all across the country, when you talk about equal sovereignty, if there is a problem in Ohio the remedy is Section 2.
So if Congress thought that Section 2 was an inadequate remedy, it could look to the specifics of Section 2 and say, maybe we ought to put timetables in there or modify it.
But that's not what happened.
They reenacted Section 2 just as it stood.
So I think that Section 2 covers even more broadly, because it deals with results, which the Court has said is broader than effects.
It's an effective remedy, and I think at this point, given the record, given the history, the right thing to do is go forward under Section 2 and remove the stigma of prior restraint and preclearance from the States and the unequal application based on data that has no better history than 1972.
Justice Ruth Bader Ginsburg: Mr. Rein, I just remind, because it's something we said about equal footing, in Katzenbach the Court said:
"The doctrine of the equality of the States invoked by South Carolina does not bar this approach, for that doctrine applies only to the terms upon which States are admitted to the Union and not to the remedies for local evils which have subsequently appeared. "
That's what -- has the Court changed that interpretation?
Bert W Rein: I think that that referred in Katzenbach -- I'm familiar with that statement.
It referred to the fact that once you use a formula you are not -- you are selecting out.
The Court felt the formula was rational in theory and practice and therefore it didn't on its face remove the equality of the States.
They were all assessed under the same two criteria.
Some passed, some did not.
But I think that that really doesn't mask the need for equal treatment of the sovereign States.
Justice Sonia Sotomayor: I'm going to have a hard time with that because you can't be suggesting that the Government sees a problem in one or more States and decides it's going to do something for them and not for others, like emergency relief, and that that somehow violates the equal footing doctrine.
You can't treat States the same because their problems are different, their populations are different, their needs are different.
Everything is different about the States.
Bert W Rein: Well, I think when Congress uses the powers delegated under Article I, Section 8, it has substantial latitude in how it exercises the power.
We are talking about remedial power here.
We are talking about overriding powers that are reserved to the States to correct abuse.
When Congress does that, it has to treat them equally.
It can't say--
Justice Sonia Sotomayor: Would you tell me what you think is left of the rational means test in Katzenbach and City of Rome?
Do you think the City of Boerne now controls both Fourteen -- the Fourteenth and the Fifteenth Amendment and how we look at any case that arises under them?
Bert W Rein: --Justice Sotomayor, I think that the two tests have a lot in common because in City of Boerne, the Katzenbach decision was pointed out as a model of asking the questions that Congress in proportionality asked us to address.
Number one, how does this remedy meet findings of constitutional violation?
You've got to ask that question.
They asked that question in Katzenbach.
What is the relation between the two?
And then I think you have to ask the question: All right, you know, is this killing a fly with a sledgehammer, a fair question, because when you start to invade core functions of the States I think that a great deal of caution and care is required.
So I think that the rational basis test, the McCulloch test, still applies to delegated powers.
But here on the one hand the Solicitor defends under the Fourteenth and Fifteenth Amendment saying, well, if something doesn't violate the Fifteenth it violates the Fourteenth.
And the Court's precedent under the Fourteenth Amendment is very clear that the City of Boerne congruence and proportionality test applies.
The Court has applied it, but I don't think we -- we wouldn't really need to get that far because we believe that if you examine it under McCullough, just as they did in Katzenbach, it would fail as well.
If there are no further questions.
Chief Justice John G. Roberts: Thank you, counsel.
Our questions have intruded on your rebuttal time, so we'll give you the 5 minutes and a commensurate increase in the General's time.
Donald B. Verrilli Jr: Thank you, Mr. Chief Justice, and may it please the Court:
There's a fundamental point that needs to be made at the outset.
Everyone acknowledges, Petitioner, its amici, this Court in Northwest Austin, that the Voting Rights Act made a huge difference in transforming the culture of blatantly racist vote suppression that characterized parts of this country for a century.
Section 5 preclearance was the principal engine of that progress.
And it has always been true that only a tiny fraction of submissions under Section 5 result in objections.
So that progress under Section 5 that follows from that has been as a result of the deterrence and the constraint Section 5 imposes on States and subjurisdictions and not on the actual enforcement by means of objection.
Now, when Congress faced the question whether to reauthorize Section 5 in 2006, it had to decide whether -- whether it could be confident that the attitudes and behaviors in covered jurisdictions had changed enough that that very effective constraint and deterrence could be confidently removed.
And Congress had, as Judge Kagan identified earlier, a very substantial record of continuing need before it when it--
Chief Justice John G. Roberts: Can I ask you just a little bit about that record.
Do you know how many submissions there were for preclearance to the Attorney General in 2005?
Donald B. Verrilli Jr: --I don't know the precise number, but many thousands.
Chief Justice John G. Roberts: 3700.
Do you know how many objections the Attorney General lodged?
Donald B. Verrilli Jr: There was one in that year.
Chief Justice John G. Roberts: One, so one out of 3700.
Donald B. Verrilli Jr: But I think -- but, Mr. Chief Justice, that is why I made the point a minute ago that the key way in which Section 5 -- it has to be the case, everyone agrees, that the significant progress that we've made is principally because of Section 5 of the Voting Rights Act.
And it has always been true that only a tiny fraction of submissions result in objections.
Justice Antonin Scalia: That will always be true forever into the future.
You could always say, oh, there has been improvement, but the only reason there has been improvement are these extraordinary procedures that deny the States sovereign powers which the Constitution preserves to them.
So, since the only reason it's improved is because of these procedures, we must continue those procedures in perpetuity.
Donald B. Verrilli Jr: No.
Justice Antonin Scalia: Is that the argument you are making?
Donald B. Verrilli Jr: That is not the argument.
We do not think that--
Justice Antonin Scalia: I thought that was the argument you were just making.
Donald B. Verrilli Jr: --It is not.
Congress relied on far more on just the deterrent effect.
There was a substantial record based on the number of objections, the types of objections, the findings of--
Justice Antonin Scalia: That's a different argument.
Donald B. Verrilli Jr: --But they are related.
Chief Justice John G. Roberts: Just to get the -- do you know which State has the worst ratio of white voter turnout to African American voter turnout?
Donald B. Verrilli Jr: I do not.
Chief Justice John G. Roberts: Massachusetts.
Do you know what has the best, where African American turnout actually exceeds white turnout?
Donald B. Verrilli Jr: 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 John G. Roberts: Which State has the greatest disparity in registration between white and African American?
Donald B. Verrilli Jr: --I do not know that.
Chief Justice John G. Roberts: Massachusetts.
Third is Mississippi, where again the African American registration rate is higher than the white registration rate.
Donald B. Verrilli Jr: But when Congress -- the choice Congress faced when it -- Congress wasn't writing on a blank slate in 2006, Mr. Chief Justice.
It faced a choice.
And the choice was whether the conditions were such that it could confidently conclude that this deterrence and this constraint was no longer needed, and in view of the record of continuing need and in view of that history, which we acknowledge is not sufficient on its own to justify reenactment, but it's certainly relevant to the judgment Congress made, because it justifies Congress having made a cautious choice in 2006 to keep the constraint and to keep the deterrence in place.
Justice Samuel Alito: Well, there's no question that--
Justice Sonia Sotomayor: Counsel, in the reauthorization--
Justice Samuel Alito: --There's no question--
Chief Justice John G. Roberts: Justice Alito.
Justice Samuel Alito: --There is no question that the Voting Rights Act has done enormous good.
It's one of the most successful statutes that Congress passed in the twentieth century and one could probably go farther than that.
But when Congress decided to reauthorize it in 2006, why wasn't it incumbent on Congress under the congruence and proportionality standard to make a new determination of coverage?
Maybe the whole country should be covered.
Or maybe certain parts of the country should be covered based on a formula that is grounded in up-to-date statistics.
But why -- why wasn't that required by the congruence and proportionality standards?
Suppose that Congress in 1965 had based the coverage formula on voting statistics from 1919, 46 years earlier.
Do you think Katzenbach would have come out the same way?
Donald B. Verrilli Jr: No, but what Congress did in 2006 was different than what Congress did in 1965.
What Congress did -- Congress in 2006 was not writing on a clean slate.
The judgment had been made what the coverage formula ought to be in 1965, this Court upheld it four separate times over the years, and that it seems to me the question before Congress under congruence and proportionality or the reasonably adapted test in McCull -- or whatever the test is, and under the formula in Northwest Austin is whether the judgment to retain that geographic coverage for a sufficient relation to the problem Congress was trying to target, and Congress did have before it very significant evidence about disproportionate results in Section 2 litigation in covered jurisdictions, and that, we submit, is a substantial basis for Congress to have made the judgment that the coverage formula should be kept in place, particularly given that it does have a bail-in mechanism and it does have a bailout mechanism which allows for tailoring over time.
Justice Anthony Kennedy: This reverse engineering that you seem so proud of, it seems to me that that obscures the -- the real purpose of -- of the statute.
And if Congress is going to single out separate States by name, it should do it by name.
If not, it should use criteria that are relevant to the existing -- and Congress just didn't have the time or the energy to do this; it just reenacted it.
Donald B. Verrilli Jr: I think the -- the formula was -- was rational and effective in 1965.
The Court upheld it then, it upheld it three more times after that.
Justice Anthony Kennedy: Well, the Marshall Plan was very good, too, the Morale Act, the Northwest Ordinance, but times change.
Donald B. Verrilli Jr: And -- but the question is whether times had changed enough and whether the differential between the covered jurisdictions and the rest of the country had changed enough that Congress could confidently make the judgment that this was no longer needed.
Justice Ruth Bader Ginsburg: General Verrilli--
Justice Stephen G. Breyer: What the question--
Justice Ruth Bader Ginsburg: --General Verrilli, could you respond to the question that Justice Kennedy asked earlier, which was for why isn't Section 2 enough now?
The Government could bring Section 2 claims if it seeks privately to do.
Why isn't -- he asked if it was expensive.
You heard the question, so.
Donald B. Verrilli Jr: Yes.
With respect to -- start with Katzenbach.
Katzenbach made the point that Section 2 litigation wasn't an effective substitute for Section 5, because what Section 5 does is shift the burden of inertia.
And there's a -- I think it is self-evident that Section 2 cannot do the work of Section 5.
Take one example: Polling place changes.
That in fact is the most frequent type of Section 5 submission, polling place changes.
Now, changes in the polling places at the last minute before an election can be a source of great mischief.
Closing polling places, moving them to inconvenient locations, et cetera.
What Section 5 does is require those kinds of changes to be pre-cleared and on a 60-day calendar which effectively prevents that kind of mischief.
And there is no way in the world you could use Section 2 to effectively police that kind of mischief.
Justice Anthony Kennedy: Well, I -- I do think the evidence is very clear that Section -- that individual suits under Section 2 type litigation were just insufficient and that Section 5 was utterly necessary in 1965.
No doubt about that.
Donald B. Verrilli Jr: And I think it remains--
Justice Anthony Kennedy: But with -- with a modern understanding of -- of the dangers of polling place changes, with prospective injunctions, with preliminary injunctions, it's not clear -- and -- and with the fact that the Government itself can commence these suits, it's not clear to me that there's that much difference in a Section 2 suit now and preclearance.
I may be wrong about that.
I don't have statistics for it.
That's why we're asking.
Donald B. Verrilli Jr: --I -- I don't -- I don't really think that that conclusion follows.
I think these under the -- there are thousands and thousands of these under-the-radar screen changes, the polling places and registration techniques, et cetera.
And in most of those I submit, Your Honor, the -- the cost-benefit ratio is going to be, given the cost of this litigation, which one of the -- one of the reasons Katzenbach said Section 5 was necessary, is going to tilt strongly against bringing these suits.
Even with respect to the big ticket items, the big redistrictings, I think the logic Katzenbach holds in that those suits are extremely expensive and they typically result in after-the-fact litigation.
Now, it is true, and the Petitioners raised the notion that there could be a preliminary injunction, but I really think the Petitioner's argument that Section 2 is a satisfactory and complete substitute for Section 5 rests entirely on their ability to demonstrate that preliminary injunctions can do comparable work to what Section 5 does.
They haven't made any effort to do that.
And while I don't have statistics for you, I can tell you that the Civil Rights Division tells me that it's their understanding that in fewer than one-quarter of ultimately successful Section 2 suits was there a preliminary injunction issued.
So, I don't think that there's a basis, certainly given the weighty question before this Court of the constitutionality of this law, to the extent the argument is that Section 2 is a valid substitute for Section 5, I just don't think that the -- that the Petitioners have given the Court anything that allows the Court to reach that conclusion and of course--
Justice Anthony Kennedy: Can you tell us how many attorneys and how many staff in the Justice Department are involved in the preclearance process?
Is it 5 or 15?
Donald B. Verrilli Jr: --It's a -- it's a very substantial number and--
Justice Anthony Kennedy: Well, what does that mean?
Donald B. Verrilli Jr: --It means I don't know the exact number, Justice Kennedy.
Justice Antonin Scalia: Hundreds?
Donald B. Verrilli Jr: I think it's dozens.
And so the -- and so it -- so it's a substantial number.
It is true in theory that those people could be used to bring Section 2 litigation.
Justice Antonin Scalia: Right.
Donald B. Verrilli Jr: But that doesn't answer the mail, I submit, because it's still -- you're never going to get at all these thousands of under-the-radar changes and you're still going to be in the position where the question will be whether preliminary injunctions are available to do the job.
There is no evidence that that's true.
And I'll point out there's a certain irony in the argument that what -- that what Petitioner wants is to substitute Section 2 litigation of that kind for the Section 5 process, which is much more efficient and much more -- and much speedier, much more efficient and much more cost effective.
Justice Samuel Alito: Then why shouldn't it apply everywhere in the country?
Donald B. Verrilli Jr: Well, because I think Congress made a reasonable judgment that the problem -- that in 2006, that its prior judgments, that there -- that there was more of a risk in the covered jurisdictions continued to be validated by the Section 2 evidence.
Justice Samuel Alito: Well, you do really think there was -- that the record in 2006 supports the proposition that -- let's just take the question of changing the location of polling places.
That's a bigger problem in Virginia than in Tennessee, or it's a bigger problem in Arizona than Nevada, or in the Bronx as opposed to Brooklyn.
Donald B. Verrilli Jr: I think the combination of the history, which I concede is not dispositive, but is relevant, because it suggests caution is in order and that's a reasonable judgment on the part of Congress, the combination of that history and the fact that there is a very significant disproportion in successful Section 2 results in the covered jurisdictions as compared to the rest of the country, that Congress was justified in concluding that there -- that it -- there was reason to think that there continued to be a serious enough differential problem to justify--
Justice Samuel Alito: Well, the statistics that I have before me show that in, let's say the 5 years prior to reauthorization, the gap between success in Section 2 suits in the covered and the non-covered jurisdiction narrowed and eventually was eliminated.
Do you disagree with that?
Donald B. Verrilli Jr: --Well, I think the -- the -- you have to look at it, and Congress appropriately looked at it through a broader -- in a -- in a broader timeframe, and it made judgments.
And I think that actually, the -- the right way to look at it is not just the population judgment that Mr. Rein was critical of, the fact is, and I think this is in the Katz amicus brief, that the covered jurisdictions contain only 14 percent of the subjurisdictions in the nation.
And so 14 percent of the subjurisdictions in the nation are generating up to 81 percent of the successful Section 2 litigation.
And I think--
Chief Justice John G. Roberts: General, is it -- is it the government's submission that the citizens in the South are more racist than citizens in the North?
Donald B. Verrilli Jr: --It is not, and I do not know the answer to that, Your Honor, but I do think it was reasonable for Congress--
Chief Justice John G. Roberts: Well, once you said it is not, and you don't know the answer to it.
Donald B. Verrilli Jr: --I -- it's not our submission.
As an objective matter, I don't know the answer to that question.
But what I do know is that Congress had before it evidence that there was a continuing need based on Section 5 objections, based on the purpose-based character of those objections, based on the disparate Section 2 rate, based on the persistence of polarized voting, and based on a gigantic wealth of jurisdiction-specific and anecdotal evidence, that there was a continuing need.
Chief Justice John G. Roberts: A need to do what?
Donald B. Verrilli Jr: To maintain the deterrent and constraining effect of the Section 5 preclearance process in the covered jurisdictions, and that--
Chief Justice John G. Roberts: And not -- and not impose it on everyone else?
Donald B. Verrilli Jr: --And -- that's right, given the differential in Section 2 litigation, there was a basis for Congress to do that.
Justice Stephen G. Breyer: --So what's the answer?
I just want to be sure that I hear your answer to an allegation, argument, an excellent argument, that's been made, or at least as I've picked up, and that is that: Yes, the problem was terrible; it has gotten a lot better; it is not to some degree cured.
I think there is a kind of common ground.
Now then the question is: Well, what about this statute that has a certain formula?
One response is: Yes, it has a formula that no longer has tremendous relevance in terms of its characteristic -- that is literacy tests.
But it still picked out nine States.
So, so far, you're with me.
So it was rational when you continue.
You know, you don't sunset it.
You just keep it going.
You're not held to quite the same criteria as if you were writing it in the first place.
But it does treat States all the same that are somewhat different.
One response to that is: Well, this is the Fifteenth Amendment, a special amendment, you know?
Maybe you're right.
Then let's proceed State by State.
Let's look at it State by State.
That's what we normally do, not as applied.
Now, I don't know how satisfactory that answer is.
I want to know what your response is as to whether we should -- if he's right -- if he's right that there is an irrationality involved if you were writing it today in treating State A, which is not too discriminatorily worse than apparently Massachusetts or something.
So -- so if that's true, do we respond State by State?
Or is this a matter we should consider not as applied, but on its face?
I just want to hear what you think about that.
Donald B. Verrilli Jr: Let me give two responses, Justice Breyer.
The first is one that focuses on the practical operation of the law and the consequences that flow from it.
I do not think that Shelby County or Alabama ought to be able to bring a successful facial challenge against this law on the basis that it ought not to have covered Arizona or Alaska.
The statute has bailout mechanism.
Those jurisdictions can try to avail themselves of it.
And if they do and it doesn't work, then they -- they may very well have an as-applied challenge that they can bring to the law.
But that doesn't justify -- given the structure of the law and that there is a tailoring mechanism in it, it doesn't justify Alabama--
Chief Justice John G. Roberts: I don't -- I don't understand the distinction between facial and as-applied when you are talking about a formula.
As applied to Shelby County, they are covered because of the formula, so they're challenging the formula as applied to them.
And we've heard some discussion.
I'm not even sure what your position is on the formula.
Is the formula congruent and proportional today, or do you have this reverse engineering argument?
Donald B. Verrilli Jr: --Congress's decision in 2006 to reenact the geographic coverage was congruent and proportional because Congress had evidence--
Chief Justice John G. Roberts: To -- to the problem or -- or was the formula congruent and proportional to the remedy?
Donald B. Verrilli Jr: --The Court has upheld the formula in four different applications.
So the Court has found four different times that the formula was congruent and proportional.
And the same kinds of problems that Mr. Rein is identifying now were--
Chief Justice John G. Roberts: Well -- I'm sorry.
Donald B. Verrilli Jr: --were true even back in City of Rome, because of course the tests and devices were eliminated by the statute, so no -- no jurisdiction could have tests and devices.
And City of Rome itself said that the registration problems had been very substantially ameliorated by then, but there were additional kinds of problems.
The ascent of these second-generation problems was true in City of Rome as a justification that made it congruent and proportional.
And we submit that it's still true now, that Congress wasn't writing on a blank slate in 2006.
Congress was making a judgment about whether this formula, which everyone agrees, and in fact Mr. Rein's case depends on the proposition that Section 5 was a big success.
Justice Antonin Scalia: Well, maybe it was making that judgment, Mr. Verrilli.
But that's -- that's a problem that I have.
This Court doesn't like to get involved in -- in racial questions such as this one.
It's something that can be left -- left to Congress.
The problem here, however, is suggested by the comment I made earlier, that the initial enactment of this legislation in a -- in a time when the need for it was so much more abundantly clear was -- in the Senate, there -- it was double-digits against it.
And that was only a 5-year term.
Then, it is reenacted 5 years later, again for a 5-year term.
Double-digits against it in the Senate.
Then it was reenacted for 7 years.
Single digits against it.
Then enacted for 25 years, 8 Senate votes against it.
And this last enactment, not a single vote in the Senate against it.
And the House is pretty much the same.
Now, I don't think that's attributable to the fact that it is so much clearer now that we need this.
I think it is attributable, very likely attributable, to a phenomenon that is called perpetuation of racial entitlement.
It's been written about.
Whenever a society adopts racial entitlements, it is very difficult to get out of them through the normal political processes.
I don't think there is anything to be gained by any Senator to vote against continuation of this act.
And I am fairly confident it will be reenacted in perpetuity unless -- unless a court can say it does not comport with the Constitution.
You have to show, when you are treating different States differently, that there's a good reason for it.
That's the -- that's the concern that those of us who -- who have some questions about this statute have.
It's -- it's a concern that this is not the kind of a question you can leave to Congress.
There are certain districts in the House that are black districts by law just about now.
And even the Virginia Senators, they have no interest in voting against this.
The State government is not their government, and they are going to lose -- they are going to lose votes if they do not reenact the Voting Rights Act.
Even the name of it is wonderful: The Voting Rights Act.
Who is going to vote against that in the future?
Chief Justice John G. Roberts: You have an extra 5 minutes.
Donald B. Verrilli Jr: Thank you.
I may need it for that question.
Justice Scalia, there's a number of things to say.
First, we are talking about the enforcement power that the Constitution gives to the Congress to make these judgments to ensure protection of fundamental rights.
So this is -- this is a situation in which Congress is given a power which is expressly given to it to act upon the States in their sovereign capacity.
And it cannot have been lost on the framers of the Fourteenth and Fifteenth Amendments that the power Congress was conferring on them was likely to be exercised in a differential manner because it was, the power was conferred to deal with the problems in the former States of the Confederacy.
So with respect to the constitutional grant of power, we do think it is a grant of power to Congress to make these judgments, now of course subject to review by this Court under the standard of Northwest Austin, which we agree is an appropriate standard.
That's the first point.
The second point is I do -- I do say with all due respect, I think it would be extraordinary to -- to look behind the judgment of Congress as expressed in the statutory findings, and -- and evaluate the judgment of Congress on the basis of that sort of motive analysis, as opposed to--
Justice Antonin Scalia: We looked behind it in Boerne.
I'm not talking about dismissing it.
I'm -- I'm talking about looking at it to see whether it makes any sense.
Donald B. Verrilli Jr: --And -- but -- but I do think that the deference that Congress is owed, as City of Boerne said, “ much deference ” -- Katzenbach said “ much deference ”.
That deference is appropriate because of the nature of the power that has been conferred here and because, frankly, of the superior institutional competence of Congress to make these kinds of judgments.
These are judgments that assess social conditions.
These are predictive judgments about human behavior and they're predictive judgments about social conditions and human behavior about something that the people in Congress know the most about, which is voting and the political process.
And I would also say I understand your point about entrenchment, Justice Scalia, but certainly with respect to the Senate, you just can't say that it's in everybody's interests -- that -- that the enforcement of Section 5 is going to make it easier for some of those Senators to win and it's going to make it harder for some of those Senators to win.
And yet they voted unanimously in favor of the statute.
Justice Anthony Kennedy: Do you think the preclearance device could be enacted for the entire United States.
Donald B. Verrilli Jr: I don't think there is a record that would substantiate that.
But I do think Congress was--
Justice Anthony Kennedy: And that is because that there is a federalism interest in each State being responsible to ensure that it has a political system that acts in a democratic and a civil and a decent and a proper and a constitutional way.
Donald B. Verrilli Jr: --And we agree with that, we respect that, we acknowledge that Northwest Austin requires an inquiry into that.
Justice Anthony Kennedy: But if -- if Alabama wants to have monuments to the heros of the Civil Rights Movement, if it wants to acknowledge the wrongs of its past, is it better off doing that if it's an own independent sovereign or if it's under the trusteeship of the United States Government?
Donald B. Verrilli Jr: Of course it would be better in the former situation.
But with all due respect, Your Honor, everyone agrees that it was appropriate for -- for Congress to have exercised this express constitutional authority when it did in 1965, and everybody agrees that it was the -- was the exercise of that authority that brought about the situation where we can now argue about whether it's still necessary.
And the point, I think, is of fundamental importance here is that that history remains relevant.
What Congress did was make a cautious choice in 2006 that given the record before it and given the history, the more prudent course was to maintain the deterrent and constraining effect of Section 5, even given the federalism costs, because, after all, what it protects is a right of fundamental importance that the Constitution gives Congress the express authority to protect through appropriate legislation.
Justice Samuel Alito: Before your time expires, I would like to make sure I understand your position on this as-applied versus facial issue.
Is it your position that this would be a different case if it were brought by, let's say, a county in Alaska as opposed to Shelby County, Alabama?
Donald B. Verrilli Jr: No.
Not -- not -- no.
Let me just try to articulate clearly what our -- what our position is.
They've brought a facial challenge.
We -- we recognize that it's a facial challenge.
We're defending it as a facial challenge, but our point is that the facial challenge can't succeed because they are able to point out that there may be some other jurisdictions that ought not to be appropriately covered, and that's especially true because there is a tailoring mechanism in the statute.
And if the tailoring mechanism doesn't work, then jurisdictions that could make such a claim may well have an as-applied challenge.
That's how we feel.
Chief Justice John G. Roberts: Thank you, General.
Donald B. Verrilli Jr: Thank you, Mr. Chief Justice.
Chief Justice John G. Roberts: Mr. Adegbile.
ORAL ARGUMENT BY DEBO P. ADEGBILE ON BEHALF OF RESPONDENTS BOBBY PIERSON, ET AL.
Debo P. Adegbile: Mr. Chief Justice, and may it please the Court:
The extensive record supporting the renewal of the preclearance provisions of the Voting Rights Act illustrates two essential points about the nature and continuing aspects of voting discrimination in the affected areas.
The first speaks to this question of whether Section 2 was adequate standing alone.
As our brief demonstrates, in Alabama and in many of the covered jurisdictions, Section 2 victories often need Section 5 to realize the benefits of the -- of the ruling in the Section 2 case.
That is to say, that these measures act in tandem to protect minority communities, and we've seen it in a number of cases.
Justice Antonin Scalia: But that's true in every State, isn't it?
Debo P. Adegbile: Justice Scalia--
Justice Antonin Scalia: I mean, you know, I don't think anybody is contesting that it's more effective if you use Section 5.
The issue is why just in these States.
Debo P. Adegbile: --Fair enough.
It's beyond a question of being true in any place.
Our brief shows that specifically in the covered jurisdictions, there is a pattern, a demonstrated pattern of Section 2 and 5 being used in tandem whereas in other jurisdictions, most of the Section 2 cases are one-off examples.
We point to a whole number of examples.
Take for example Selma, Alabama.
Selma, Alabama in the 1990s, not in the 1960s but in the 1990s, had a series of objections and Section 2 activity and observers all that were necessary to continue to give effect to the minority inclusion principle that Section 5 was passed to vindicate in 1965.
Justice Anthony Kennedy: But a Section 2 case can, in effect, have an order for bail-in, correct me if I'm wrong, under Section 3 and then you basically have a mini -- something that replicates Section 5.
Debo P. Adegbile: The bail-in is available -- bail-in is available if there's an actual finding of a constitutional violation.
It has been used in -- in a number of circumstances.
The United States brief has an appendix that points to those.
One of the recent ones was in Port Chester, New York, if memory serves.
But it's quite clear that the pattern in the covered jurisdictions is such that the repetitive nature of discrimination in those places -- take, for example, the case in LULAC.
After this Court ruled that the redistricting plan after the 2000 round of redistricting bore the mark of intentional discrimination, in the remedial election, the State of Texas tried to shorten and constrain the early voting period for purposes of denying the Latino community of the opportunity to have the benefits of the ruling.
What we've seen in Section 2 cases is that the benefits of discrimination vest in incumbents who would not be there but for the discriminatory plan.
And Congress, and specifically in the House Report, I believe it's page 57, found that Section 2 continues to be an inadequate remedy to address the problem of these successive violations.
Another example that makes this point very clearly is in the 1990s in Mississippi.
There was an important Section 2 case brought finally after 100 years to break down the dual registration system that had a discriminatory purpose.
When Mississippi went to implement the National Voter Registration Act, it tried to bring back dual registration, and it was Section 5 -- Section 5 enforcement action that was able to knock it down.
Chief Justice John G. Roberts: Do you agree with the reverse engineering argument that the United States has made today?
Debo P. Adegbile: I would frame it slightly differently, Chief Justice Roberts.
My understanding is that the history bears some importance in the context of the reauthorizations, but that Congress in -- in none of the reauthorizations stopped with the historical backward look.
It takes cognizance of the experience, but it also looks to see what the experience has been on the ground.
And what Congress saw in 2006 is that there was a surprisingly high number of continuing objections after the 1982 reauthorization period and that--
Chief Justice John G. Roberts: I guess -- I guess the question is whether or not that disparity is sufficient to justify the differential treatment under Section 5.
Once you take away the formula, if you think it has to be reverse engineered and -- and not simply justified on its own, then it seems to me you have a much harder test to justify the differential treatment under Section 5.
Debo P. Adegbile: --This Court in Northwest Austin said that it needs to be sufficiently related, and I think there are two principal sources of evidence.
Chief Justice John G. Roberts: Well, we also said congruent and proportional.
Debo P. Adegbile: Indeed.
I don't understand those things to be unrelated.
I think that they're part of the same, same test, same evaluative mechanism.
The idea is, is Congress -- the first question is, is Congress remedying something or is it creating a new right.
That's essentially what Boerne is getting to, is Congress trying to go -- do an end-around, a back doorway to expand the Constitution.
We know in this area Congress is trying to implement the Fifteenth Amendment and the history tells us something about that.
But specifically to the question--
Chief Justice John G. Roberts: Well, the Fifteenth Amendment is limited to intentional discrimination, and, of course, the preclearance requirement is not so limited, right?
Debo P. Adegbile: --That's correct.
But this Court's cases have held that Congress, in proper exercise of its remedial powers, can reach beyond the -- the core of the intentional discrimination with prophylactic effect when they have demonstrated that a substantial problem exists.
The -- the two things that speak to this issue about the disparity in coverage and continuing to cover these jurisdictions, there are two major inputs.
The first is the Section 5 activity.
The Section 5 activity shows that the problem persists.
It's a range of different obstacles, and Section 5 was passed to reach the next discriminatory thing.
The case in--
Justice Samuel Alito: Well, Section 5 -- the Section 5 activity may show that there's a problem in the jurisdictions covered by Section 5, but it says nothing about the presence or absence of similar problems in noncovered jurisdictions, isn't that right?
Debo P. Adegbile: --Absolutely, Justice Alito.
Justice Samuel Alito: All right.
Debo P. Adegbile: And so I come to my second category.
The second category, of course, is the piece of the Voting Rights Act that has national application, Section 2.
And what the evidence in this case shows, and it was before Congress, is that the concentration of Section 2 successes in the covered jurisdictions is substantially more.
Justice Kagan said that it was four times more adjusting for population data.
The fact of the matter is that there is another piece of evidence in the record in this case where Peyton McCrary looks at all of the Section 2 cases, and what he shows is that the directional sense, that the Ellen Katz study pointed to dramatically understates the disparity under Section 2.
And so he found that 81 percent--
Justice Antonin Scalia: All of the noncovered states are worse in that regard than the nine covered states; is that correct?
Debo P. Adegbile: --Justice Scalia--
Justice Antonin Scalia: Every -- every one of them is worse.
Debo P. Adegbile: --Justice Scalia, it's -- it's a fair question, and -- and I was speaking to the aggregate--
Justice Antonin Scalia: It's not just a fair one, it's the crucial question.
Congress has selected these nine states.
Now, is there some good reason for selecting these nine?
Debo P. Adegbile: --What we see in the evidence is that of the top eight States with section -- favorable Section 2 outcomes, seven of them, seven of them are the covered jurisdictions.
The eighth was bailed in under the other part of the mechanism that, as Justice Kennedy points out, can bring in some jurisdictions that have special problems in voting.
And so we think that that points to the fact that this is not a static statute, it's a statute that is--
Justice Stephen G. Breyer: Yeah, but his point, I think the point is this: If you draw a red line around the States that are in, at least some of those States have a better record than some of the States that are out.
So in 1965, well, we have history.
We have 200 years or perhaps of slavery.
We have 80 years or so of legal segregation.
We have had 41 years of this statute.
And this statute has helped, a lot.
So therefore Congress in 2005 looks back and says don't change horses in the middle of the stream, because we still have a ways to go.
Now the question is, is it rational to do that?
And people could differ on that.
And one thing to say is, of course this is aimed at States.
What do you think the Civil War was about?
Of course it was aimed at treating some States differently than others.
And at some point that historical and practical sunset/no sunset, renew what worked type of justification runs out.
And the question, I think, is has it run out now?
And now you tell me when does it run out?
What is the standard for when it runs out?
That's something you have heard people worried about.
Does it never run out?
Or does it run out, but not yet?
Or do we have a clear case where at least it doesn't run out now?
Now, I would like you to address that.
Debo P. Adegbile: --Fair enough, Justice Breyer.
I think that the -- what the evidence shows before Congress is that it hasn't run out yet.
The whole purpose of this act is that we made progress and Congress recognized the progress that we made.
And, for example, they took away the examiner provision which was designed to address the registration problem.
In terms of when we are there, I think it will be some point in the future.
Our great hope is that by the end of this next reauthorization we won't be there.
Indeed, there is an overlooked provision that says in 15 years, which is now 9 years from where I stand here today before you, Congress should go back and look and see if it's still necessary.
So we don't think that this needs to be there in perpetuity.
But based on the record and a 2011 case in which a Federal judge in Alabama cited this Court's opinion in Northwest Austin -- there were legislators that sit today that were caught on tape referring to African American voters as illiterates.
Their peers were referring to them as aborigines.
And the judge, citing the Northwest Austin case -- it's the McGregor case cited in our brief -- said that, yes, the South has changed and made progress, but some things remain stubbornly the same and the trained effort to deny African American voters the franchise is part of Alabama's history to this very day.
Chief Justice John G. Roberts: Have there been episodes, egregious episodes of the kind you are talking about in States that are not covered?
Debo P. Adegbile: Absolutely, Chief Justice Roberts.
Chief Justice John G. Roberts: Well, then it doesn't seem to help you make the point that the differential between covered and noncovered continues to be justified.
Debo P. Adegbile: But the great weight of evidence -- I think that it's fair to look at -- on some level you have to look piece by piece, State by State.
But you also have to step back and look at the great mosaic.
This statute is in part about our march through history to keep promises that our Constitution says for too long were unmet.
And this Court and Congress have both taken these promises seriously.
In light of the substantial evidence that was adduced by Congress, it is reasonable for Congress to make the decision that we need to stay the course so that we can turn the corner.
To be fair, this statute cannot go on forever, but our experience teaches that six amendments to the Constitution have had to be passed to ensure safeguards for the right to vote, and there are many Federal laws.
They protect uniform voters, some protect eligible voters who have not had the opportunity yet to register.
But together these protections are important because our right to vote is what the United States Constitution is about.
Chief Justice John G. Roberts: Thank you, counsel.
Mr. Rein, 5 minutes.
REBUTTAL ARGUMENT OF BERT W. REIN ON BEHALF OF THE PETITIONER
Bert W Rein: Thank you, Mr. Chief Justice.
Justice Sonia Sotomayor: Do you think that the right to vote is a racial entitlement in Section 5?
Bert W Rein: No.
The Fifteenth Amendment protects the right of all to vote and--
Justice Sonia Sotomayor: I asked a different question.
Do you think Section 5 was voted for because it was a racial entitlement?
Bert W Rein: --Well, Congress--
Justice Sonia Sotomayor: Do you think there was no basis to find that--
Bert W Rein: --was reacting -- may I say Congress was reacting in 1964 to a problem of race discrimination which it thought was prevalent in certain jurisdictions.
So to that extent, as the intervenor said, yes, it was intended to protect those who had been discriminated against.
If I might say, I think that Justice Breyer--
Justice Sonia Sotomayor: --Do you think that racial discrimination in voting has ended, that there is none anywhere?
Bert W Rein: --I think that the world is not perfect.
No one -- we are not arguing perfectibility.
We are saying that there is no evidence that the jurisdictions that are called out by the formula are the places which are uniquely subject to that kind of problem--
Justice Sonia Sotomayor: But shouldn't--
Bert W Rein: --We are not trying--
Justice Sonia Sotomayor: --You've given me some statistics that Alabama hasn't, but there are others that are very compelling that it has.
Why should we make the judgment, and not Congress, about the types and forms of discrimination and the need to remedy them?
Bert W Rein: --May I answer that?
Number one, we are not looking at Alabama in isolation.
We are looking at Alabama relative to other sovereign States.
And coming to Justice Kennedy's point, the question has is Alabama, even in isolation, and those other States reached the point where they ought to be given a chance, subject to Section 2, subject to cases brought directly under the Fifteenth Amendment, to exercise their sovereignty--
Justice Sonia Sotomayor: How many other States have 240 successful Section 2 and Section 5--
Bert W Rein: --Justice Sotomayor, I could parse statistics, but we are not here to try Alabama or Massachusetts or any other State.
The question is the validity of the formula.
That's what brings Alabama in.
If you look at Alabama, it has a number of black legislators proportionate to the black population of Alabama.
It hasn't had a Section 5 rejection in a long period.
I want to come to Justice Breyer's point because I think that -- I think he's on a somewhat different wavelength, which is isn't this a mere continuation?
Shouldn't the fact that we had it before mean, well, let's just try a little bit more until somebody is satisfied that the problem is cured?
Justice Stephen G. Breyer: Don't change horses.
You renew what is in the past--
Bert W Rein: Right.
Justice Stephen G. Breyer: --where it works, as long as the problem isn't solved.
Bert W Rein: Well, and I think the problem to which the Voting Rights Act was addressed is solved.
You look at the registration, you look at the voting.
That problem is solved on an absolute as well as a relative basis.
So that's like saying if I detect that there is a disease afoot in the population in 1965 and I have a treatment, a radical treatment that may help cure that disease, when it comes to 2005 and I see a new disease or I think the old disease is gone, there is a new one, why not apply the old treatment?
Justice Elena Kagan: Well, Mr. Rein--
Bert W Rein: I wouldn't--
Justice Elena Kagan: --that is the question, isn't it?
You said the problem has been solved.
But who gets to make that judgment really?
Is it you, is it the Court, or is it Congress?
Bert W Rein: --Well, it is certainly not me.
Justice Antonin Scalia: That's a good answer.
I was hoping you would say that.
Bert W Rein: But I think the question is Congress can examine it, Congress makes a record; it is up to the Court to determine whether the problem indeed has been solved and whether the new problem, if there is one--
Justice Elena Kagan: Well, that's a big, new power that you are giving us, that we have the power now to decide whether racial discrimination has been solved?
I did not think that that fell within our bailiwick.
Bert W Rein: --I did not claim that power, Justice Kagan.
What I said is, based on the record made by the Congress, you have the power, and certainly it was recognized in Northwest Austin, to determine whether that record justifies the discrimination among--
Justice Stephen G. Breyer: But there is this difference, which I think is a key difference.
You refer to the problem as the problem identified by the tool for picking out the States, which was literacy tests, et cetera.
But I suspect the problem was the denial or abridgement by a State of the right to vote on the basis of race and color.
And that test was a way of picking out places where that problem existed.
Now, if my version of the problem is the problem, it certainly is not solved.
If your version of the problem, literacy tests, is the problem, well, you have a much stronger case.
So how, in your opinion, do we decide what was the problem that Congress was addressing in the Voting Rights Act?
Bert W Rein: --I think you look at Katzenbach and you look at the evidence within the four corners of the Voting Rights Act.
It responds to limited registration and voting as measured and the use of devices.
The devices are gone.
That problem has been resolved by the Congress definitively.
So it can't be the basis for further -- further legislation.
I think what we are talking about here is that Congress looks and says, well, we did solve that problem.
As everyone agrees, it's been very effective, Section 5 has done its work.
People are registering and voting and, coming to Justice Scalia's point, Senators who see that a very large group in the population has politically wedded themselves to Section 5 are not going to vote against it; it will do them no good.
And so I think, Justice Scalia, that evidence that everybody votes for it would suggest some of the efficacy of Section 5.
You have a different constituency from the constituency you had in 1964.
But coming to the point, then if you think there is discrimination, you have to examine that nationwide.
They didn't look at some of the problems of dilution and the like because they would have found them all over the place in 1965.
But they weren't responding to that.
They were responding to an acute situation where people could not register and vote.
There was intentional denial of the rights under the Fifteenth Amendment.
Chief Justice John G. Roberts: Thank you, counsel.
Bert W Rein: Thank you.
Chief Justice John G. Roberts: Counsel.
The case is submitted.
Justice Ruth Bader Ginsburg: The majority and the dissenters agree on two points.
First, race-based voting discrimination still exist, no one does that.
Second, the Voting Rights Act addresses an extraordinary problem, a mere century of disregard for the dictates of the Fifteenth Amendment and Congress has taken extraordinary measures to meet the problem.
Beyond those two points the Court divides sharply.
Congress failed to redo the coverage formula the Court holds -- the Court holds that that renders inoperative, the preclearance remedy of Section 5.
Section 5 cannot operate without the formula.
Section 5 is the provision far more effective than any other in securing minority voting rights and stopping backsliding.
Justices Breyer, Sotomayor, Kagan, and I are of the view that Congress's decision to renew the Act and keep the coverage formula was in all together rational means to serve the end of achieving what was once the subject of a dream, the equal citizenship stature of all in our polity, a voice to every voter in our democracy undiluted by race.
Most fundamentally, we see the issue as a “who decides” question.
In this regard we note that the very First Amendment to our constitution exhibits a certain suspicion of Congress.
It instructs Congress shall make no law abridging the freedom of speech or of the press.
The Civil War Amendments are of a distinctly different thrust as the Fifteenth Amendment instructs that the right to vote shall not be denied or abridged on account of race and it vests in Congress as to the Thirteenth and Fourteenth Amendments how to enforce the guaranteed right by appropriate legislation.
As the standard setting decision South Carolina v. Katzenbach puts it as against the reserved powers of states, Congress may use any rational means to effectuate the constitutional prohibition of race discrimination in voting.
Congress sought to do just that in 1965, when it initially passed the Voting Rights Act and in each reauthorization including the most recent one.
Indeed, the 2006 Reauthorization was the product of the most earnest consideration.
Over a span of more than 20 months, the House and Senate Judiciary Committees held 21 hearings heard from scores of witnesses, received numerous investigative reports and other documentation showing that serious and widespread intentional discrimination persist in covered jurisdictions.
In all, the legislative records filled more than 15,000 pages, Representative Sensen Brenner, then the Chair of the House Judiciary Committee, described the record supporting the authorization as one of the most extensive considerations of any piece of legislation that the United States Congress had dealt with in the 27 and a half years he had served in the House.
The Reauthorization passed the House by a vote of 390-to-33.
The vote in the Senate was 98-to-0.
President Bush signed the reauthorization a week after he received it, noting the need for further work in the fight against injustice and calling the extension an example of our continued commitment to a united America where every person is treated with dignity and respect.
Why was Congress intent on renewing Section 5 particularly?
As the Chief Justice explained, Section 5 requires cover jurisdictions to obtain preclearance before making changes in voting laws that might introduce new methods of voting discrimination.
Congress found, first of all, that Section 5 had been enormously successful in increasing minority registration and access to the ballot.
But it also learned how essential Section 5 was to prevent a return to old ways.
In 1995, for example, the State of Mississippi was stopped by Section 5 from bringing back to its Jim Crow era to voter registration system.
And in 2006, Texas was stopped from curtailing early voting in a predominantly Latino District in defiance of this Court's order to reinstate the District after Texas tried to eliminate it.
Congress confronted similar examples of discrimination in covered jurisdictions by this score.
Of signal importance Congress found that as registration and voting by minority citizens impressively increased, other barriers sprang up to replace the tests and devices that once impeded access to the ballot.
The second generation barriers included racial gerrymandering, switching from district by district voting to at-large voting, discriminatory annexations, methods more subtle than the visible methods used in 1965 but serving effectively to diminish a minority community's ability to exercise clout in the electoral process.
Congress retained Section 5 to put down the second generation barriers before they got off the ground.
But the coverage formula is no good, the Court insist, for it is based on decades-old data and eradicated practices, so Congress must start from scratch.
But suppose the record shows as engaging with it would reveal that the formula continuous to identify the jurisdiction of gravest concern, jurisdiction with the worst current records of voting discrimination.
If Congress could determine from the reams of evidence it gathered that these jurisdictions still belonged under the preclearance regime, why did it need to alter the formula.
Bear in mind that Shelby County has now did a facial challenge to the reauthorization.
By what right does the Court address the county's claim?
On the basis the Court has explained that facial challenges are the most difficult to mount successfully.
The challenger will not be heard to complain on the ground at the statute in question might be applied unconstitutionally to others in situations not before the Court.
Congress continued preclearance over Alabama including Shelby County only after considering barriers remaining there to minority voting clout.
There were many, they were shocking, and they were recent, they are spelled in the dissenting opinion.
What has become of the Court's usual restraint, its readiness to turn away facial attacks unless there is no set of circumstances under which an Act would be valid.
The Court points to the success of Section 5 in eliminating the test and devices' extent in 1965 and an increasing citizen's registration and ballot access.
Does that provide cause to believe Section 5 remedy is no longer needed?
The notion that it does is hardly new.
The same assumption that the problem can be solved when particular methods of voting discrimination are identified and eliminated was indulged and proved wrong repeatedly prior to the enactment of the Voting Rights Act.
That is why the 2006 renewal targeted no particular practices but instead aimed to reach in all their variety and persistence measures that effectively impaired minority voting rights.
And it is why Congress found in the second generation barriers demonstrative evidence that a remedy as strong as preclearance remains vital and should not be removed from the federal arsenal.
It was the judgment of Congress that 40 years has not been sufficient amount of time to eliminate the vestiges of discrimination, that judgment of the body empowered to enforce the Civil War Amendments by appropriate legislation should go under this Court's unstinting approbation.
The great men who led the march from Selma to Montgomery and their call for the passage of the Voting Rights Act foresaw a progress even in Alabama.
“The arc of the moral universe is long,” he said “but it bends toward justice if there is a steadfast commitment to see the task through to completion.”
That commitment has been disserved by today's decision.
Chief Justice John G. Roberts: I have the opinion of the Court this morning in case 12-96, Shelby County versus Holder.
Voting discrimination against African-Americans was so entrenched and pervasive in 1965 that to cite just one example, less than 7% of African-Americans of voting age in Mississippi had been able to register to vote.
In contrast, 70% of white citizens of voting age were registered.
A gap of 63 percentage points.
Prodded to action by the civil rights movement, Congress passed the Voting Rights Act in 1965 to confront that problem.
The Act prohibited racial discrimination in voting and banned literacy tests and the like that were being used to prevent African-Americans from voting.
Those provisions are not at issue here.
Congress then went on to adopt other measures to address the extraordinary of the problem it faced.
First, it required states to submit and proposed voting change to the United States Attorney General or a three-judge court in Washington, D.C. before such a change could take effect.
This was a significant departure from basic principles of our federal system.
Second, the Act made this requirement applicable only to some states, a similar departure from the principle that states enjoy equal sovereignty.
The preclearance requirement applied only those states that had a voting test in 1964 and had less than 50% voter registration or turnout in the 1964 election.
Congress recognized that a voting test was used as a means to keep African-Americans from registering or voting and that the resulting discrimination would show up in low voting numbers.
The formula meant that six states in the South were covered, reflecting the unprecedented nature of this selective preclearance regime, the provisions were temporary, set to expire after five years.
The Act was challenged but this Court upheld it saying and I quote, “Exceptional conditions can justify legislative measures not otherwise appropriate.”
The Act was extended in 1970 for an additional five years, in 1975 for an additional seven, in 1982 for an additional 25, and in 2006 for an additional 25.
The last time the coverage formula was updated however, the formula for deciding which jurisdictions had to submit voting changes was with the 1975 extension.
That means that jurisdictions are covered today based on whether they had a voting test and low voter registration or turnout in 1964, 1968, or 1972.
The Act has been a resounding success.
You will recall the 7% registration figure for African-Americans in Mississippi in 1965, it was 76% in 2004.
As for the gap of 63 percentage points between African-American and white voter registration in that state in 1965, there was a gap in 2004 of about 4%, but it was in favor of African-American registration.
There are examples of progress, more poignant than the numbers.
During the freedom summer of 1964 in Philadelphia, Mississippi, three men were murdered while working in the area to register African-American voters.
On bloody Sunday in Selma, Alabama in 1965, police beat and used tear gas on hundreds marching in support of enfranchising African-Americans.
Today, both Philadelphia and Mississippi and Selma, Alabama have African-Americans mayors.
No one doubts that there is still voting discrimination in the South and in the rest of the country.
As noted when we upheld the original Act, we said that exception conditions can justify legislative measures not otherwise appropriate.
The question is whether the extraordinary measures of preclearance and desperate treatment of the states that were upheld 45 years ago remained constitutional in light of today's changed conditions.
Now that question was before us four years ago in case called Northwest Austin.
In our decision, we stated that the preclearance and selective coverage features of the Act “raised serious constitutional questions.”
But we did not decide those questions at that time.
Instead, we applied a doctrine known as constitutional avoidance.
Under that doctrine, courts should look carefully to see if there is some way to decide a case without getting into sensitive constitutional issues.
We determined that it was reasonably possible to decide the case on statutory grounds and we did so.
But we made our concerns about the continued constitutionality of the preclearance provision and coverage formula very clear.
Those concerns were expressed in an opinion joined by eight members of the Court.
Congress took no action in response.
Today, we cannot avoid reaching the constitutional questions.
The arguments that the preclearance requirement in Section 5 of the Act can no longer be justified have a great deal of force, but we do not strike down that provision.
We do however find that the coverage formula in Section 4 violates the constitution and cannot be used to decide which jurisdictions are subject to preclearance.
That formula looks to conditions as they were in 1972 and earlier, more than 40 years ago.
A jurisdiction is subject to preclearance today if it employed a voting test at that time or had done so since 1964 and if voter registration or turnout in the state had been low in elections in the 1960s and early 1970s.
But the Act imposes current burdens and must be based on current political conditions as we warned four years ago in Northwest Austin.
If Congress had started from scratch when it extended the challenge provisions in 2006, it plainly could not have enacted the present coverage formula.
It would have been irrational for Congress to distinguish between states in such a fundamental way based on 40-year old data when today's statistics tell an entirely different story.
And it would have been irrational to base coverage on the use of voting test 40 years ago when such test had been illegal since that time, but that is exactly what Congress has done.
The government points to the extensive record Congress compiled when it extended the Act.
The parties debate about how that record should be analyzed, but that's not the point.
Congress did not use that record as the basis for a coverage formula reflecting current conditions.
It instead extended a formula based on whether a jurisdiction had a voting test 40 years earlier and based on plainly obsolete statistics.
Any racial discrimination in voting is too much, but our country has changed in the past 50 years.
In the last election, the percentage of African-Americans turning out to vote exceeded white voter turnout in five of the six states original subject to the preclearance requirement.
The gap in the six state was less than one half of 1%.
When taking such extraordinary steps as subjecting state legislation to preclearance in Washington and applying that regime only to some disfavored states, Congress must ensure that the legislation it passes speaks to current conditions.
The coverage formula, unchanged for 40 years plainly does not do so and therefore we have no choice but to find that it violates the constitution.
Justice Thomas has filed a concurring opinion.
Justice Ginsburg has filed a dissenting opinion, in which Justices Breyer, Sotomayor and Kagan have joined.