JURIST Columnist Chris Elmendorf, writing the fifth installment of the column authored by the faculty of the University of California, Davis School of Law, says that the “purpose” rather than the “effects” prong of Section 5 of the Voting Rights Act may offer a better basis to challenge recent state regulations of the voting process…

The national Democratic and Republican parties are today both highly polarized and evenly matched. Elections have become pitched battles for control of government, and the candidates who lead the charge for each party have dramatically different ideas about what the government should do. Under these conditions, small turnout swings within each party’s base can have very large consequences for the course of public policy.

It is probably not coincidental that in recent years Republican-controlled state legislatures have enacted numerous anti-fraud regulations of the voting process, such as photo ID requirements, or that Democrats have portrayed these measures as disingenuous schemes to reduce participation among likely Democratic voters. When political parties are evenly matched and the policy stakes are high, the parties and their interest-group supporters can be expected to try to shape the electorate to their advantage — and to try to delegitimize the other side’s program of electoral reform.

Not all states enjoy the same latitude to enact barriers to participation, however. The Voting Rights Act (VRA) obligates the so-called “covered jurisdictions,” which include most of the former Jim Crow states, to “preclear” new regulations of the electoral process with the US Department of Justice (DOJ) or the US District Court for the District of Columbia. Under Section 5 of the VRA, a state seeking preclearance must show that the requirement it wishes to implement was not adopted with a discriminatory purpose, and will not have a retrogressive effect on racial minorities’ political participation. The burden of proof is on the state.

The DOJ recently relied on the “effects” prong of Section 5 to deny preclearance to voter ID requirements adopted in South Carolina and Texas. The DOJ has also interposed effect- and purpose-based objections to several Florida reforms that are currently before the US District Court of the District of Columbia. At a time when African Americans and Latinos overwhelmingly vote for Democrats it is easy to see why the Section 5 retrogression test complicates Republican efforts to reshape the electorate. A law that disproportionately burdens Democratic participation (relative to the status quo) is likely to burden racial minorities more than whites. If that is the case, the law is “retrogressive” on the standard understanding of Section 5.

This commentary argues, however, that the purpose rather than the effects prong of Section 5 likely represents the greater (or at least the more enduring) barrier to Republican efforts to limit participation by Democratic voters. The effects prong will probably be whittled away or invalidated by the US Supreme Court. The purpose prong has a somewhat firmer constitutional footing, since regulations of the voting process meant to disadvantage a class of voters defined by race violate the Fourteenth and Fifteenth Amendments.

To be sure, there is scant evidence that Republican legislators in Florida, Texas, or South Carolina had a racial purpose in mind when adopting the voting requirements to which the DOJ now objects. But if these states stipulate that their requirements were adopted for partisan purposes, they risk a public backlash that could tarnish the Republican brand, and they may inadvertently strengthen the hand of plaintiffs in subsequent constitutional litigation. On the other hand, if they stipulate that their requirements were not adopted for partisan reasons, they may have a hard time carrying their burden to prove the absence of a discriminatory purpose, because there is evidence that these measures will have a racially disparate impact but do little to combat fraud.

The Voting Rights Act in Covered Jurisdictions

The Voting Rights Act contains two principal provisions. Section 2, which applies nationally, establishes an uncertain barrier to election laws that prevent minority voters from participating in the political process and electing candidates of their choice on equal terms with others. Section 5, by contrast, applies only to certain states and localities with a history of discrimination, and is conceptually more straightforward. An electoral reform that makes minority voters worse off relative to the status quo violates the effects prong of Section 5. Preclearance must also be denied if the measure at issue was motivated by “any discriminatory purpose” with respect to race or color.

Section 5 rests, however, on precarious constitutional footings. The Voting Rights Act originally provided that Section 5 would sunset after five years. The provision was re-enacted on a temporary basis in 1970, 1975, 1982, and, most recently, 2006 (for another 25 years). In hearings before the 2006 reenactment, legal scholars warned that Section 5 would be at risk of judicial invalidation unless the US Congress updated the “coverage formula,” which establishes the geographic reach of the preclearance requirement, or the “bailout provisions,” which enable jurisdictions that have not discriminated recently to escape coverage. But Congress did neither. It modified the statute only to extend it, and to overrule a pair of Supreme Court decisions that had given covered jurisdictions a little more room to maneuver.

In Northwest Austin Municipal Utility District No. 1 (NAMUDNO) v. Holder, the Supreme Court heard arguments regarding the constitutionality of amended and extended Section 5. The Court ended up deciding the case on statutory grounds, using the constitutional avoidance canon to engineer a surprising and contra-textual reading of the bailout provisions. Along the way the Court signaled grave doubts about the constitutionality of the 2006 extension, emphasizing:

• (1) that the preclearance requirement imposes substantial “federalism costs,” and differentiates between the states “despite our historic tradition that all states enjoy ‘equal sovereignty'”;
• (2) that the preclearance requirement forces states to engage in race-minded decisionmaking that would otherwise violate the Equal Protection Clause; and
• (3) that the coverage formula “is based on data . . . more than 35 years old, and there is considerable evidence that it fails to account for current political conditions.”

NAMUDNO is just the latest in a long line of cases in which the Court has relied on the constitutional avoidance canon to narrow the reach of the VRA without actually holding it unconstitutional. Many observers, myself among them, expect this pattern to continue. The constitutional avoidance strategy has both political and doctrinal benefits for a strategic Court. It allows the Court to pare back the VRA without receiving all the media and political attention that would follow outright constitutional invalidation. And it saves the Court from having to explain exactly why the VRA violates the US Constitution, which in turn helps the justices to sidestep questions about whether their constitutional reasoning is faithful to precedent.

Constitutional Avoidance and the Two Prongs of Section 5

It can certainly be argued that the coverage formula is so outdated as to render Section 5 constitutionally unenforceable. Esteemed DC Circuit Judge Stephen Williams advanced this position in his dissenting opinion in Shelby County v. Holder, a case decided just last Friday. Yet, whether Section 5 is a “congruent and proportional” remedy for constitutional violations — the constitutional standard for Fourteenth and probably Fifteenth Amendment enforcement legislation — depends not on the coverage formula alone, but on the interplay among the coverage formula, the preclearance standard and the bailout provisions. A coverage formula that is grossly overbroad on its face could prove to be very well tailored in application, if it were easy for “innocent” jurisdictions to bail out of coverage. Similarly, a VRA with an overbroad coverage formula could do a very good job intercepting unconstitutional state action while minimally burdening the states in other respects if preclearance proceedings were low-cost, accurate and tightly focused on the question of whether the measure submitted for preclearance was designed to discriminate on the basis of race.

Seen in this light, the constitutional problem with Section 5 would be substantially alleviated if the courts eliminated or scaled back the “no retrogressive effect” condition for preclearance, while leaving in place “no discriminatory purpose.” The effects prong of Section 5 bears only an attenuated relationship to constitutional violations, whereas the purpose prong targets them directly as voting requirements adopted for racially discriminatory reasons face strict scrutiny under the Fourteenth and Fifteenth Amendments.

To see the potential mismatch between the effects prong and the Constitution, imagine a covered jurisdiction that allows on-demand absentee voting. Anyone may vote absentee, irrespective of whether his or her personal circumstances make it difficult to vote in person. Further assume that minority citizens disproportionately vote absentee, and that, as experts generally believe, most voting fraud occurs in connection with absentee voting. If the state passed a law limiting absentee voting to citizens for whom in-person voting represents a hardship, there would be scant basis for suspecting a racially discriminatory purpose. Yet, this entirely conventional and innocently motivated reform would probably have a retrogressive effect on minority political participation.

The able lawyers representing Texas, Florida, and South Carolina in preclearance proceedings now before the US District Court for the District of Columbia have laid out a smorgasbord of options for curtailing the effects prong of Section 5 in ways that would permit the covered jurisdictions to introduce photo ID requirements for voting, to change the time period for voting and to restrict voter-registration drives by nongovernmental organizations. The courts have been invited to hold, for example, that the retrogression test is specific to redistricting; that the effects prong reaches only substantially or materially burdensome laws; or that a voting requirement is retrogressive only if it actually reduces the number of ideally preferred “candidates of choice” whom the minority community can elect, given the state’s system of legislative districts. These litigating positions find little support in the text and legislative history of Section 5 viewed as a whole, but they will pass some observers’ laugh tests. And, as NAMUDNO indicates, the Court seems happy to blast away at the VRA with the constitutional avoidance canon whenever a thin veneer of conventional legal argumentation can also be adduced to support a narrowing interpretation.

Section 5 may or may not be invalidated outright, but I would be quite surprised if the retrogression test persists for very long as an independently forceful counterpart to the “purpose” prong. The purpose test has problems of its own, but at least it remains closely tethered to state action that violates the Constitution.

The Status of Partisan Barriers to Voting Under the Purpose Prong of Section 5

The Voting Rights Act was not designed to counteract partisan, as opposed to racial, discrimination. One might suppose, then, that a covered jurisdiction could carry its burden under the purpose prong of Section 5 by showing that the voting requirement at issue was well-tailored to a partisan purpose — such as to reduce turnout among Democratic voters. Similar arguments are regularly made by state defendants in constitutional challenges to the design of legislative districts. The Supreme Court has applied strict scrutiny to legislative districts whose “predominant purpose” was to facilitate the election of a candidate of a particular race. But where race and partisanship are highly correlated, state defendants have successfully argued that districts that appear racially designed were actually intended to advance a partisan agenda.

There are two problems with making this “partisan purpose” move in preclearance proceedings that concern barriers to voting, as opposed to maps of legislative districts. One is constitutional. It is well settled that redistricters may design legislative districts for partisan advantage. There may exist an outer limit, some point at which constitutionally acceptable partisanship becomes constitutionally excessive, but the Supreme Court has shown no interest in drawing this line.

The permissibility of partisan efforts to gerrymander the electorate itself is much less certain. Back in the 1960s, the Supreme Court held in Carrington v. Rash that “[f]encing out from the franchise a sector of the population because of the way they may vote is constitutionally impermissible.” On the other hand, the lead opinion in Crawford v. Marion County Election Board states:

[I]f a nondiscriminatory law [such as a voter ID requirement] is supported by valid neutral justifications, those justifications should not be disregarded simply because partisan interests may have provided one motivation for the votes of individual legislators.

To see the delicate problem facing covered jurisdictions, recall that the party seeking preclearance bears the burden of proof that “any” racially discriminatory purpose precludes preclearance and that covered jurisdictions have a history of discrimination (most are former Jim Crow states). Now, consider a voting requirement that has a racially discriminatory impact and that addresses a “problem,” such as fraud by third-party voter registration groups, for which there is little evidence. To avoid the inference that racially discriminatory motives played some part in the adoption of this measure, the state seeking preclearance might have to admit that the voting requirement’s predominant or overriding purpose was to reduce turnout by the other party’s supporters, and to show that the requirement was fairly well tailored to this purpose.

These concessions could, however, prove fatal in subsequent constitutional litigation. Although after Crawford partisanship appears permissible when it represents but one of many rationales for a voting requirement, there are strong arguments that partisanship may not predominate over other considerations in the design of such requirements — particularly if the partisan objective is not to prevent fraud by the other side but rather to discourage participation by eligible voters who happen to support the other party’s candidates.

Even if the constitutional challenge were to fail, a state’s concession that voting requirements adopted on a party-line vote were mainly intended to hinder voting by the other party’s supporters could be quite damaging politically. The gerrymandering of legislative districts for political advantage is a time-honored, bipartisan tradition and the architects of partisan gerrymanders do not hide their ambitions. But recent restrictions on voting and voter registration do not have a similar pedigree. Republicans have been pushing all the restrictions. Democrats have been consistently fighting back. Republicans have adamantly denied that their motive is to prevent Democrats from getting to the polls. Rather, they have argued that the new requirements are reasonable, nondiscriminatory responses to the threat of fraud and that it is Democrats who would jeopardize the integrity of the electoral process by opposing these measures for base political reasons.

The political rhetoric suggests that the actors who are closest to the ground believe that voters may punish the Republican Party if they believe that Republicans have been jiggering the voting process to keep Democrats away from the polls. To concede in legal briefs what the party has been adamantly denying in the court of public opinion may well debase the party’s brand in the eye of independents. At a time of political equipoise, that’s a serious risk indeed.

So it is that, in a strange and ironic turn, the Section 5 prohibition on racially discriminatory voting requirements could end up defanging politically discriminatory requirements that have nothing to do with race — even if the Supreme Court neuters the effects prong of Section 5, as I and many others expect.

None of this is certain. The Supreme Court might invalidate Section 5 altogether. It might establish evidentiary presumptions under the purpose prong that insulate covered jurisdictions in the absence of direct, “smoking gun” evidence of intentional racial discrimination. It might reject the argument that voting requirements adopted for predominantly partisan purposes violate the Constitution, even if those purposes are conceded. But I suspect that Justice Kennedy and his liberal colleagues will successfully resist the gutting of the purpose prong of Section 5, and will reject the view that states may enact voting requirements primarily to reduce voting by the minority party’s supporters. If I am right, the purpose prong of Section 5 will probably operate as an unintended limitation on partisan gerrymanders of the electorate itself.

Chris Elmendorf is a Professor of Law at UC Davis School of Law. His research on election law has been published in many leading journals including the Yale Law Journal, the New York University Law Review, and the University of Pennsylvania Law Review.

Suggested citation: Chris Elmendorf, The Voting Rights Act: Limiting Partisan Barriers to Voter Participation, JURIST – Forum, May 24, 2012, http://jurist.org/forum/2012/05/chris-elmendorf-voting-rights.php.