A Shared Existence: the Current Compatibility of the Equal Protection Clause and Section 5 of the Voting Rights Act

JurisdictionUnited States,Federal
CitationVol. 88
Publication year2021

88 Nebraska L. Rev. 124. A Shared Existence: The Current Compatibility of the Equal Protection Clause and Section 5 of the Voting Rights Act

A Shared Existence: The Current Compatibility of the Equal Protection Clause and Section 5 of the Voting Rights Act

Jocelyn F. Benson(fn*)


I. Introduction.......................................... 125

II. The Evolution of Section 5, the Fourteenth Amendment, and Concerns over their Shared Existence............. 128

Shaw v. Reno Post-Shaw Miller v. JohnsonMiller Shaw

III. Section 5, the Constitution, and Redistricting Followingthe 2000 Census...................................... 150


5. New York..................................... 164

Shaw /Miller

IV. Did the 2006 Reauthorization of Section 5 Affect the Current Synergy Between Section 5 and the Equal Protection Clause?.................................... 170

Bossier Parish II Georgia v. Ashcroft

V. Conclusion............................................ 179


On June 26, 2003, the United States Supreme Court issued its opinion in Georgia v. Ashcroft.(fn1) Initially the opinion, which significantly altered the established legal test for evaluating retrogression under Section 5 of the Voting Rights Act,(fn2) failed to garner much attention. This was in part due to the complex nature of the decision, and partially because the opinion was issued nearly simultaneously to two long-awaited "blockbuster" opinions-the rejection of state anti-sod-omy laws in Lawrence v. Texas (fn3) and the affirmation of the use of affirmative action in education in Grutter v. Bollinger. (fn4) Regardless, Justice Sandra Day O'Connor's majority opinion in Ashcroft, evaluating a Georgia state legislature redistricting plan, concluded that an apportionment plan that moved African American voters from a district where they were the majority of voters to one in which they were a minority but arguably sizeable enough to wield some level of "influence" over the outcome of the election was not "retrogressive" or otherwise a violation of Section 5 of the Voting Rights Act.(fn5)


Following Justice O'Connor's extensive thirty page opinion in Ashcroft was a small, two paragraph concurrence from Justice Anthony Kennedy.(fn6) At just under 300 words, Kennedy's opinion was brief, but it packed an ominous punch. Kennedy agreed that the redistricting scheme did not violate the statutory requirements of Section 5 of the Voting Rights Act.(fn7) But Kennedy's greater concern was that the apportionment plan potentially violated the Equal Protection Clause of the Fourteenth Amendment.(fn8) In his own majority opinion in Miller v. Johnson 9 Justice Kennedy had written that race cannot be the predominant factor in redistricting.(fn10) As such, Kennedy concluded in Ashcroft, "considerations of race that would doom a redistricting plan under the Fourteenth Amendment or Section 2 seem to be what save it under Section 5."(fn11)

Kennedy's concurrence went on to declare: "There is a fundamental flaw ... in any scheme in which the Department of Justice is permitted or directed to encourage or ratify a course of unconstitutional conduct in order to find compliance with a statutory directive."(fn12) In other words, Kennedy hinted, if the Justice Department's interpretation of Section 5 of the Voting Rights Act leads attorneys to approve districting plans that violate the Miller v. Johnson interpretation of the Fourteenth Amendment, the statute is fundamentally flawed.

This article seeks to challenge the view that the Justice Department's current enforcement of Section 5 of the Voting Rights Act compels drafters of apportionment plans to use race as a predominant factor in the districting process, in violation of Miller v. Johnson (fn13) or its predecessor, Shaw v. RenoM Specifically, I argue that a shift in the Justice Department's behavior in the post-2000 redistricting cycle and subsequent Supreme Court decisions, such as Easley v. Cromartie,(fn15) indicate any dissonance between Section 5 and the Fourteenth Amendment in the redistricting context is now rectified.

This is apparent in a review of the redistricting cases that followed the 2000 census, after which every state redrew its district lines as required under Reynolds v. Sims.(fn16)States were required to adhere to


the constitutional mandate under Shaw and Miller, and every jurisdiction covered under Section 5 of the Voting Rights Act was required to submit their redistricting plans to the U.S. Department of Justice to ensure that they complied with the non-retrogression standard of Section 5. As Part II of this Article details, in no instance was any plan drawn in compliance with Section 5 found to be unconstitutional under Shaw or Miller. The fear that compliance with Section 5 re-quired the Justice Department to encourage or direct "unconstitutional conduct" in drawing district lines was never realized.

Or, at the very least, that fear did not come to pass in the redistricting cycle that immediately followed the establishment of these principles. The story does not end there. In August of 2006, President Bush signed the Fannie Lou Hamer, Rosa Parks, and Coretta Scott King Voting Rights Act Reauthorization and Amendments Act of 2006.(fn17) Among other things, the law reauthorized Section 5 for an additional twenty-five years and specifically clarified the provision with regards to two previous Supreme Court decisions: Reno v. Bossier Parrish School Board (Bossier II) (fn18) and Georgia v. Ashcroft.(fn19)

Part III of this Article details these amendments to Section 5. The amendments specifically require the rejection of any new apportionment plan or other change that is motivated by a discriminatory purpose (thus clarifying the Court's holding in Bossier II).(fn20) The changes also clarify Justice O'Connor's definition of "retrogression" in Georgia v. Ashcroft to ensure that localities are required, under Section 5, to protect a minority community's ability to elect their preferred candidate of choice.(fn21)

So if, as this Article contends, compliance with Section 5 did not compel any unconstitutional behavior in the 2000 round of redistricting, the question becomes whether Section 5, as reauthorized in 2006, will compel any unconstitutional behavior in 2010 and beyond.(fn22) To that end, Part III sets forth the argument that none of the changes to Section 5 during the reauthorization process should give rise to any concern of unconstitutional behavior. In particular, I detail how the two aforementioned amendments to Section 5-a reinvigoration of the


intent standard and a protection of a community's opportunity to elect their preferred candidate-do not require authors of redistricting plans to use race as a predominant factor or otherwise violate the U.S. Constitution.


The United States Constitution and Section 5 of the Voting Rights Act have a historically supportive and amicable relationship, as the Court articulated shortly after the 1965 passage of Section 5 in South Carolina v. Katzenbach.(fn23) This section seeks to detail both the development of Section 5 and the concurrent evolution of the Fourteenth and Fifteenth Amendments to the U.S. Constitution. I argue that the trajectories of both should be seen more as complementary and compatible than inconsistent and obstructive, as Justice Kennedy's concurrence in Georgia v. Ashcroft (fn24) suggests.

A. Section 5 of the Voting Rights Act, 1965-2006

Section 5 was added to the Voting Rights Act in 1965 to ensure the systematic enforcement of the statutory prohibition of racial discrimination in voting, in recognition of the consistent tendency of state and local jurisdictions to stay "one step ahead" of the federal government through passing "new discriminatory voting laws as soon as the old ones had been struck down."(fn25) Congress enacted the provision in an effort to "shift the advantage of time and inertia from the perpetrators of the evil to its victim," through instituting a process that disallowed any changes to election procedures "unless the changes can be shown to be nondiscriminatory."(fn26)

The provision is notably limited in its application-enforceable only in states and localities that meet the requirements of its coverage formula.(fn27) The coverage formula is designed to capture jurisdictions


with a history of discrimination. It therefore includes jurisdictions that employed a prohibited test or device and in which less than half its population was registered to vote or voted in the 1964, 1968 or 1972 presidential elections.(fn28) In 1975, coverage was also extended to jurisdictions with substantial numbers of language minorities that failed to provide translated election materials.(fn29) As a result of these extensions, Section 5 coverage now includes nine states-Alabama, Alaska, Arizona, Georgia, Louisiana, Mississippi, South Carolina, Texas, and Virginia-as well as local jurisdictions in California, Florida, Michigan, New Hampshire, New York, North Carolina, and South Dakota.(fn30)

A jurisdiction covered under this formula was required to submit any new or revised "voting qualification or prerequisite to voting, or standard, practice, or procedure with respect to voting," to the federal government for approval or...

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