Shelby Cnty. v. Holder

• Decision Date: 18 May 2012
• Docket Number: No. 11–5256.,11–5256.
• Citation: 400 U.S.App.D.C. 367,679 F.3d 848
• Parties: SHELBY COUNTY, ALABAMA, Appellant v. Eric H. HOLDER, Jr., in his Official Capacity as Attorney General of the United States, et al., Appellees.
• Court: U.S. Court of Appeals — District of Columbia Circuit

679 F.3d 848

400 U.S.App.D.C. 367

SHELBY COUNTY, ALABAMA, Appellant

v.Eric H. HOLDER, Jr., in his Official Capacity as Attorney General of the United States, et al., Appellees.

No. 11–5256.

United States Court of Appeals,District of Columbia Circuit.

Argued Jan. 19, 2012.

Decided May 18, 2012.

Appeal from the United States District Court for the District of Columbia (No. 1:10–cv–00651).

Bert W. Rein argued the cause for appellant. With him on the briefs were William S. Consovoy, Thomas R. McCarthy, and Brendan J. Morrissey.

John C. Neiman Jr., Solicitor General, Office of the Attorney General for the State of Alabama, and Robert D. Tambling, Assistant Attorney General, were on the brief for amicus curiae State of Alabama in support of appellant.

Thomas C. Horne, Attorney General, Office of the Attorney General for the State of Arizona, David R. Cole, Solicitor General, Michele L. Forney and James E. Barton II, Assistant Attorneys General, and Samuel S. Olens, Attorney General, Office of the Attorney General of the State of Georgia, were on the brief for amici curiae States of Arizona and Georgia.

Steven J. Lechner was on the brief as amicus curiae Mountain States Legal Foundation in support of appellant.

Sarah E. Harrington, Attorney, U.S. Department of Justice, argued the cause for appellee. With her on the brief were Ronald C. Machen Jr., U.S. Attorney, and Diana K. Flynn and Linda F. Thome, Attorneys.

Eric T. Schneiderman, Attorney General, Office of the Attorney General for the State of New York, Barbara D. Underwood, Solicitor General. Jim Hood, Attorney General, Office of the Attorney General for the State of Mississippi, and Kamala D. Harris, Attorney General, Office of the Attorney General for the State of California, were on the brief for amici curiae New York, et al., in support of appellees.

John Payton, Debo P. Adegbile, Elise C. Boddie, Ryan P. Haygood, Dale E. Ho, Natasha M. Korgaonkar, Arthur B. Spitzer, Jon M. Greenbaum, and John M. Nonna were on the brief for intervenors-appellees Earl Cunningham, et al., in support of appellees.

Deborah N. Archer and Aderson B. Francois were on the brief for amicus curiae The New York Law School Racial Justice Project in support of appellee.

Elizabeth B. Wydra was on the brief for amicus curiae Constitutional Accountability Center in support of appellees.

Before: TATEL and GRIFFITH, Circuit Judges, and WILLIAMS, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge TATEL.

Dissenting opinion filed by Senior Circuit Judge WILLIAMS.

TATEL, Circuit Judge:

In Northwest Austin Municipal Utility District No. One v. Holder, 557 U.S. 193, 129 S.Ct. 2504, 174 L.Ed.2d 140 (2009), the Supreme Court raised serious questions about the continued constitutionality of section 5 of the Voting Rights Act of 1965. Section 5 prohibits certain “covered jurisdictions” from making any change in their voting procedures without first demonstratingto either the Attorney General or a three-judge district court in Washington that the change “neither has the purpose nor will have the effect of denying or abridging the right to vote on account of race or color.” 42 U.S.C. § 1973c(a). The Supreme Court warned that the burdens imposed by section 5 may no longer be justified by current needs and that its geographic coverage may no longer sufficiently relate to the problem it targets. Although the Court had no occasion to resolve these questions, they are now squarely before us. Shelby County, Alabama, a covered jurisdiction, contends that when Congress reauthorized section 5 in 2006, it exceeded its enumerated powers. The district court disagreed and granted summary judgment for the Attorney General. For the reasons set forth in this opinion, we affirm.

I.

The Framers of our Constitution sought to construct a federal government powerful enough to function effectively yet limited enough to preserve the hard-earned liberty fought for in the War of Independence. They feared not state government, but centralized national government, long the hallmark of Old World monarchies. As a result, “[t]he powers delegated by the ... Constitution to the federal government, are few and defined,” while “[t]hose which are to remain in the State governments are numerous and indefinite.” The Federalist No. 45 (James Madison). Close to the people, state governments would protect their liberties.

But the experience of the nascent Republic, divided by slavery, taught that states too could threaten individual liberty. So after the Civil War, the Reconstruction Amendments were added to the Constitution to limit state power. Adopted in 1865, the Thirteenth Amendment prohibited involuntary servitude. Adopted three years later, the Fourteenth Amendment prohibited any state from “depriv[ing] any person of life, liberty, or property, without due process of law” or “deny[ing] to any person within its jurisdiction the equal protection of the laws,” and granted Congress “power to enforce” its provisions “by appropriate legislation.” U.S. Const. amend. XIV. Finally, the Fifteenth Amendment declared that “[t]he right of citizens ... 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 vested Congress with “power to enforce this article by appropriate legislation.” U.S. Const. amend. XV.

Following Reconstruction, however, “the blight of racial discrimination in voting ... infected the electoral process in parts of our country for nearly a century.” South Carolina v. Katzenbach, 383 U.S. 301, 308, 86 S.Ct. 803, 15 L.Ed.2d 769 (1966). As early as 1890, “the States of Alabama, Georgia, Louisiana, Mississippi, North Carolina, South Carolina, and Virginia” began employing tests and devices “specifically designed to prevent Negroes from voting.” Id. at 310, 86 S.Ct. 803. Among the most notorious devices were poll taxes, literacy tests, grandfather clauses, and property qualifications. See Shelby Cnty. v. Holder, 811 F.Supp.2d 424, 428 (D.D.C.2011); see also Katzenbach, 383 U.S. at 310–11, 86 S.Ct. 803. Also widely employed, both immediately following Reconstruction and again in the mid-twentieth century, were “laws designed to dilute black voting strength,” including laws that “gerrymandered election districts, instituted at-large elections, annexed or deannexed land ... and required huge bonds of officeholders.” Shelby Cnty., 811 F.Supp.2d at 429 (internal quotation marks omitted).

The courts and Congress eventually responded. The Supreme Court struck down grandfather clauses, Guinn v. United States, 238 U.S. 347, 35 S.Ct. 926, 59 L.Ed. 1340 (1915), and white primaries, Smith v. Allwright, 321 U.S. 649, 64 S.Ct. 757, 88 L.Ed. 987 (1944). Congress “ enact [ed] civil rights legislation in 1957, 1960, and 1964, which sought to ‘facilitat[e] case-by-case litigation against voting discrimination.’ ” Shelby Cnty., 811 F.Supp.2d at 430 (alteration in original) (quoting Katzenbach, 383 U.S. at 313, 86 S.Ct. 803). But Congress soon determined that such measures were inadequate: case-by-case litigation, in addition to being expensive, was slow—slow to come to a result and slow to respond once a state switched from one discriminatory device to the next—and thus had “done little to cure the problem of voting discrimination.” Katzenbach, 383 U.S. at 313, 86 S.Ct. 803. Determined to “rid the country of racial discrimination in voting,” id. at 315, 86 S.Ct. 803, Congress passed the Voting Rights Act of 1965.

Unlike prior legislation, the 1965 Act combined a permanent, case-by-case enforcement mechanism with a set of more stringent, temporary remedies designed to target those areas of the country where racial discrimination in voting was concentrated. Section 2, the Act's main permanent provision, forbids any “standard, practice, or procedure” that “results in a denial or abridgment of the right of any citizen of the United States to vote on account of race or color.” 42 U.S.C. § 1973(a). Applicable nationwide, section 2 enables individuals to bring suit against any state or jurisdiction to challenge voting practices that have a discriminatory purpose or result. See Thornburg v. Gingles, 478 U.S. 30, 35, 106 S.Ct. 2752, 92 L.Ed.2d 25 (1986).

Reaching beyond case-by-case litigation and applying only in certain “covered jurisdictions,” section 5—the focus of this litigation—“prescribes remedies ... which go into effect without any need for prior adjudication.” Katzenbach, 383 U.S. at 327–28, 86 S.Ct. 803. Section 5 suspends “all changes in state election procedure until they [are] submitted to and approved by a three-judge Federal District Court in Washington, D.C., or the Attorney General.” Nw. Austin, 129 S.Ct. at 2509. A jurisdiction seeking to change its voting laws or procedures must either submit the change to the Attorney General or seek preclearance directly from the three-judge court. If it opts for the former and if the Attorney General lodges no objection within sixty days, the proposed law can take effect. 42 U.S.C. § 1973c(a). But if the Attorney General lodges an objection, the submitting jurisdiction may either request reconsideration, 28 C.F.R. § 51.45(a), or seek a de novo determination from the three-judge district court. 42 U.S.C. § 1973c(a). Either way, preclearance may be granted only if the jurisdiction demonstrates that the proposed change to its voting law neither “has the purpose nor ... the effect of denying or abridging the right to vote on account of race or color.” Id.

Prior to section 5's enactment, states could stay ahead of plaintiffs and courts “ ‘by passing new discriminatory voting laws as soon as the old ones had been struck down.’ ” Beer v. United States, 425 U.S. 130, 140, 96 S.Ct. 1357, 47 L.Ed.2d 629 (1976) (quoting H.R.Rep. No. 94–196, at 57–58 (1975)). But section 5 “shift[ed] the advantage of time and inertia from the perpetrators of the evil to its victim.” Katzenbach, 383 U.S. at 328, 86 S.Ct....