We were both in the courtroom yesterday for the oral argument in the Shelby County, Ala., voting rights case, and were particularly struck by one aspect of the arguments: the strange persistence of the myth that Section 2 of the Voting Rights Act is an adequate substitute for Section 5. The working theory seems to be that if Section 5 is declared unconstitutional or the coverage formula in Section 4 is struck down, there's always Section 2 of the Act. We call that a theory because there is no basis in reality for believing it.
Solicitor General Don Verrilli told the Justices that Section 2 cases are not an adequate substitute for Section 5, emphasizing that the voter has to bear the burden of proof and other heavy burdens, including cost. Attorney Debo Adegbile followed that up with the point that Sections 2 and 5 work in tandem, with Section 5 often needed to insure that gains won in Section 2 cases are protected.
From our own perspective as two lawyers with more than a hundred Section 2 cases in our combined nearly 90 years of practice (forty years plus each), we have some points we think are important to consider as the Justices decide this case. We would also note the importance of Supreme Court cases like United States v. Raines.
1. Over the years, we have heard this theory about the feasibility of Section 2 cases from a number of people, including some amici in this case. We have never heard such a claim from anyone who has actually prosecuted or defended a Section 2 case. People who have actually gone to trial in a Section 2 cases know the reality, no matter what others may speculate.
2. The cost of a Section 2 case is extreme. In any case challenging the districting or redistricting or election system of a state or local body, for example, a Section 2 case requires a minimum of hundreds of thousands of dollars and more commonly several million dollars of financial resources. This is because Section 2 requires a multi-factor inquiry, demanding extensive investigation and discovery, numerous expert witnesses, a difficult trial and often at least one or even more rounds of appeals regardless of who wins in the lower courts.
The cost is not simply inconvenience, but, because most voters or groups of voters lack resources to bring such cases, cases which should be brought will not get filed. In contrast to Section 5, which captures every voting change, reliance on Section 2 means that many or most discriminatory voting changes will be implemented, for years or in perpetuity.
3. The complexity of Section 2 cases also means that, in fact, as the Solicitor General noted yesterday, preliminary injunctions are rarely granted. Our experience is that courts are reluctant to the point of being unwilling to interfere with upcoming elections. Timing issues ranging from candidate qualifying periods to printing and mailing absentee ballots are all part of the structure that most courts simply will not interfere with until there is a trial and final judgment on the merits.
4. Although voting discrimination can also be challenged as intentional discrimination, it is also a fact that courts are extremely loath to make findings of intentional discrimination. This is due in part to rules of law making such proof difficult -- for example, the caution against relying on legislators' statements - and partly because of the understandable hesitation to label the defendant public officials as "racists."
5. That rarity of "intentional discrimination" findings also makes "bail-in" an unrealistic avenue for enforcement. Some of the questions posed by the Justices may have implied a belief that getting a jurisdiction 'bailed-in' for preclearance is also relatively straightforward. Not so. To make a non-covered jurisdiction subject to the preclearance requirements under Section 3(c) of the Voting Rights Act requires a court to make a finding of intentional discrimination and, in addition, decide that it should retain jurisdiction to impose the preclearance remedy. Merely prevailing in a Section 2 case (which does not require intent) is not enough to trigger the right to ask a federal court to impose 'bail-in' on a State or local government. Section 3 'bail in' provisions are important, but are not an adequate remedy.
6. The bottom line is that Section 5 is a form of "opt-out" requirement: it catches all potential voting discrimination. Section 2 is the equivalent of an "opt-in" requirement: only those discriminatory changes as to which the many high hurdles of Section 2 can be overcome (finding a lawyer, bringing a suit, financing it, winning it, and doing so in time) will be blocked. In the recent case of Knox v. SEIU (2012), the Supreme Court emphasized the great difference between opt-in and opt-out procedures. That is true here, where the Section 5 remedy is indisputably effective, and the Section 2 remedy cannot be a substitute.
7. Apart from the discussion of Section 2, we were also surprised not to hear about the case of United States v. Raines, 362 U.S. 17 (1960) during the discussion of jurisdictional issues in the early part of the arguments. In Raines, a unanimous Supreme Court ruled that if a civil rights law is constitutional in the immediate application, that is the end of the inquiry, and the question whether it might be unconstitutional as applied to another jurisdiction or person is irrelevant.
In other words, if Section 5 can constitutionally be applied to Shelby County, it doesn't matter in this case whether the law might be unconstitutional as applied to other jurisdictions. That question would be reserved for another case. The Raines case overruled United States v. Reese, an 1876 case in which the Supreme Court held an earlier civil rights law unconstitutional. Reese came from an era when the Supreme Court freely ignored Congress and repeatedly struck down civil rights laws. As of today, the Supreme Court has not held a civil rights law to be unconstitutional in more than 100 years.
As the Supreme Court takes on the awesome responsibility of considering whether a law of Congress is constitutional or not, it is best to be guided by the facts we know about the record with Section 5 in place, rather than what the record might or might not be without it.
Section 5 works. Isn't that the most important thing?