Shelby Cnty. v. Holder

• Citation: 811 F.Supp.2d 424
• Decision Date: 21 September 2011
• Docket Number: Civil Action No. 10–0651 (JDB).
• Parties: SHELBY COUNTY, ALABAMA, Plaintiff, v. Eric H. HOLDER, Jr., in his official capacity as Attorney General of the United States, Defendant.
• Court: U.S. District Court — District of Columbia

811 F.Supp.2d 424

SHELBY COUNTY, ALABAMA, Plaintiff,

v.Eric H. HOLDER, Jr., in his official capacity as Attorney General of the United States, Defendant.

Civil Action No. 10–0651 (JDB).

United States District Court, District of Columbia.

Sept. 21, 2011.

Bert W. Rein, Brendan J. Morrissey, Thomas R. McCarthy, William S. Consovoy, Wiley Rein & Fielding LLP, Washington, DC, for Plaintiff.

Mark A. Posner, Lawyers' Committee for Civil Rights, Richard Alan Dellheim, Ernest Alan McFarland, Jared Michael Slade, Justin S. Weinstein–Tull, Samuel Robert Bagenstos, U.S. Department of Justice, Washington, DC for Defendant.

MEMORANDUM OPINION

JOHN D. BATES, District Judge.

Section 5 of the Voting Rights Act of 1965 (“the Act”) prevents certain “covered” jurisdictions from implementing any change to voting practices or procedures unless and until the jurisdiction demonstrates to federal authorities 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. Praised by some as the centerpiece of the most effective civil rights legislation ever enacted, Section 5 has been condemned by others as an impermissible federal encroachment on state sovereignty. In 2009, the Supreme Court addressed Congress's 2006 extension of Section 5 and, although avoiding the merits of a facial constitutional challenge to Section 5's “preclearance” obligation, nonetheless expressed concern about the provision's continued vitality, noting that “[t]he Act's preclearance requirements and its coverage formula raise serious constitutional questions.” Nw. Austin Mun. Util. Dist. No. One v. Holder, 557 U.S. 193, 129 S.Ct. 2504, 2513, 174 L.Ed.2d 140 (2009) (“ Nw. Austin II ”).

Today, those serious constitutional questions can no longer be avoided. Shelby County, Alabama (“Shelby County” or “plaintiff”), a jurisdiction covered by Section 4(b) of the Act, 42 U.S.C. § 1973b(b), has brought this suit against the Attorney General (“defendant”) seeking a declaratory judgment that Section 5 and Section 4(b) are facially unconstitutional, and a permanent injunction prohibiting defendant from enforcing these provisions. Compl. ¶¶ 1, 44(a)(b). Specifically, Shelby County alleges that Section 4(b)'s coverage formula and Section 5's preclearance obligation for covered jurisdictions exceed Congress's enforcement authority under the Fourteenth and Fifteenth Amendments, and violate the principle of “equal sovereignty” embodied in the Tenth Amendment and Article IV of the U.S. Constitution. Id. ¶¶ 36–43.

This Court is mindful that “judging the constitutionality of an Act of Congress is ‘the gravest and most delicate duty that [it] is called on to perform.’ ” Nw. Austin II, 129 S.Ct. at 2513 (quoting Blodgett v. Holden, 275 U.S. 142, 147–48, 48 S.Ct. 105, 72 L.Ed. 206 (1927) (Holmes, J., concurring)). That duty is all the more sensitive where, as here, the challenged statute seeks to enforce the core Fifteenth Amendment prohibition against denial of the franchise on the basis of race. The Fifteenth Amendment 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.” U.S. Const. amend. XV, § 1. Yet 95 years after the Amendment's ratification, the struggle for the realization of this constitutional guarantee was far from complete. See H.R.Rep. No. 89–439 (1965), 1965 U.S.C.C.A.N. 2437, 2439. In 1965, literacy tests, poll taxes, and other devices were still being “widely used” in certain regions of the country as part of “a calculated plan to deprive Negroes of their right to vote.” Id. at 2443. When traditional litigation proved ineffective to counter “those determined to circumvent the guarantees of the 15th amendment,” id. at 2441, Congress decided that “the wrong to our citizens is too serious—the damage to our national conscience is too great not to adopt more effective measures than exist today,” id. at 2442. Hence, almost a century after the Fifteenth Amendment was ratified, Congress passed the Voting Rights Act of 1965—with Section 5 at its core—in order “to make the guarantees of the Fifteenth Amendment finally a reality for all citizens.” Allen v. State Bd. of Elections, 393 U.S. 544, 556, 89 S.Ct. 817, 22 L.Ed.2d 1 (1969). Congress reauthorized the Act three times (in 1970, 1975 and 1982), and the Supreme Court upheld each reauthorization against constitutional challenges. See Nw. Austin II, 129 S.Ct. at 2510.

Certainly, today Section 5's continued constitutionality “must be judged with reference to the historical experience which it reflects.” South Carolina v. Katzenbach, 383 U.S. 301, 308, 86 S.Ct. 803, 15 L.Ed.2d 769 (1966). But the Supreme Court has also made clear that history alone cannot provide a valid basis for upholding Section 5 indefinitely; rather, “the Act imposes current burdens and must be justified by current needs.” Nw. Austin II, 129 S.Ct. at 2512. This Court has now carefully reviewed the extensive 15,000–page legislative record that Congress amassed in support of its 2006 reauthorization of Section 5 and Section 4(b). It is, of course, Congress that is charged in the first instance under the Fifteenth Amendment with formulating the legislation needed to enforce it. Id. at 2513. Bearing in mind both the historical context and the extensive evidence of recent voting discrimination reflected in that virtually unprecedented legislative record, the Court concludes that “current needs”—the modern existence of intentional racial discrimination in voting—do, in fact, justify Congress's 2006 reauthorization of the preclearance requirement imposed on covered jurisdictions by Section 5, as well as the preservation of the traditional coverage formula embodied in Section 4(b). Applying the standard of review articulated by the Supreme Court in City of Boerne v. Flores, 521 U.S. 507, 117 S.Ct. 2157, 138 L.Ed.2d 624 (1997), this Court finds that Section 5 remains a “congruent and proportional remedy” to the 21st century problem of voting discrimination in covered jurisdictions.

BACKGROUND

I. The History of the Voting Rights Act of 1965

The Voting Rights Act of 1965 “was designed by Congress to banish the blight of racial discrimination in voting.” Katzenbach, 383 U.S. at 308, 86 S.Ct. 803. Although the Fifteenth Amendment guaranteed African–American citizens the right to vote as early as 1870, southern states quickly responded by creating a series of voting qualifications and devices to perpetuate black disenfranchisement. See id. at 310–311, 86 S.Ct. 803; see also H.R.Rep. No. 89–439, at 2439–40. None of this new voting legislation mentioned race on its face, but it was nonetheless “motivated entirely and exclusively by a desire to exclude the Negro from voting.” H.R.Rep. No. 89–439, at 2443, 2451. Southern states imposed poll taxes, which disproportionately burdened African–Americans as a result of their comparatively lower incomes. See id. at 2451–53. They enacted literacy requirements as a precondition to voting “based on the fact that as of 1890 ... more than two-thirds of the adult Negroes [in southern states] were illiterate while less than one-quarter of the adult whites were unable to read or write.” Katzenbach, 383 U.S. at 311, 86 S.Ct. 803. And they adopted alternate tests, such as grandfather clauses and property qualifications, in order to “assure that white illiterates would not be deprived of the franchise.” Id.

Not only were these tests intentionally discriminatory in their design, but southern voting officials were given unfettered discretion to administer them in a discriminatory fashion. Officials would refuse to accept poll taxes from blacks seeking to pay them, or would withhold poll tax exemption certificates from otherwise-qualified black applicants. See H.R.Rep. No. 89–439, at 2452. They would provide whites with “easy versions” of literacy tests or excuse them altogether, but demand that blacks pass “difficult versions ... without the slightest error.” Katzenbach, 383 U.S. at 312–13, 86 S.Ct. 803. Other voting qualifications—including the infamous “good-morals requirement” and “constitutional interpretation” tests—were so inherently “vague and subjective” that they “constituted an open invitation to abuse at the hands of voting officials.” Id.

In addition to these methods of direct disenfranchisement, southern officials before 1965 also enacted laws designed to dilute black voting strength, if and when blacks were able to register and cast ballots. Specifically, southern officials “gerrymandered election districts, instituted at-large elections, annexed or deannexed land as it fit their racial and partisan interests, and required huge bonds of officeholders.” J. Morgan Kousser, The Strange, Ironic Career of Section 5 of the Voting Rights Act, 1965–2007, 86 Tex. L. Rev. 667, 678–79 (2008); see also To Examine the Impact and Effectiveness of the Voting Rights Act, Hearing Before the Subcomm. on the Constitution of the H. Comm. on the Judiciary, 109th Cong. 1138 (Oct. 18, 2005) (“ Impact and Effectiveness ”) (Chandler Davidson and Bernard Grofman, eds., Quiet Revolution in the South: The Impact of the Voting Rights Act 1965–1990 (Princeton University Press 1994)). These tactics aimed at reducing the ability of blacks to elect candidates of their choice—sometimes referred to as “[d]isenfranchisement by indirection”—were widely employed throughout the South in the late nineteenth century, and they reemerged during the “Second Reconstruction” of the mid-twentieth century as well. See 1 Voting Rights Act: Evidence of Continued Need, Hearing Before the Subcomm. on the Constitution of the H. Comm. on the Judiciary, 109th Cong. 142 (Mar. 8, 2006) (hereinafter, “1 Evidence of Continued Need ”) (National Commission on the Voting Rights Act, Protecting Minority Voters: The Voting Rights...