The Voting Rights Act in Winter: The Death of a Superstatute

• Author: Guy-Uriel E. Charles & Luis Fuentes-Rohwer
• Position: Charles S. Rhyne Professor of Law, Duke Law School/Professor of Law and Harry T. Ice Fellow, Indiana University Maurer School of Law
• Pages: 1389-1439

The Voting Rights Act in Winter: The Death of a Superstatute Guy-Uriel E. Charles  & Luis Fuentes-Rohwer  ABSTRACT: The Voting Rights Act (“VRA”), the most successful civil rights statute in American history, is dying. In the recent Shelby County decision, the U.S. Supreme Court signaled that the anti-discrimination model, long understood as the basis for the VRA as originally enacted, is no longer the best way to understand today’s voting rights questions. As a result, voting rights activists need to face up to the fact that voting rights law and policy are at a critical moment of transition. It is likely the case that the superstatute we once knew as the VRA is no more and is never to return. If so, we need to figure out what, if anything, can, will, or should replace it. But before figuring out where to go from here, we need to understand first how we arrived at the moment of the VRA’s disintegration so as not to repeat the mistakes of the not too distant past. In this Article, we argue that the VRA is dying because the consensus over the existence and persistence of racial discrimination in voting has dissolved. From this premise, we outline three paths for the future of voting rights policy: (1) rebuilding a new consensus over the racial discrimination model; (2) forging a new consensus over what we call an autonomy model; or (3) reconceiving voting rights in universal terms.  Charles S. Rhyne Professor of Law, Duke Law School.  Professor of Law and Harry T. Ice Fellow, Indiana University Maurer School of Law. Many readers kindly offered much advice and criticism, and we are immensely grateful: Joseph Blocher, James Boyle, Josh Chafetz, Mike Dorf, Chris Elmendorf, Rick Garnett, Heather Gerken, Rick Hasen, Michael Kang, Rick Pildes, Bill Popkin, Aziz Rana, Stephen Sachs, David Schleicher, Peter Strauss, Gerald Torres, and Deborah Widiss. Special thanks to Bill Eskridge, John Ferejohn, Abbe Gluck, and Maggie Lemos who provided extensive feedback. We have presented this Article in one form or another to the law faculties at Cornell, Duke, Emory, Florida State, Georgetown, Indiana University Maurer, Minnesota, Notre Dame, St. Louis, UC Davis, Virginia, and Washington University. We are extremely grateful for the many comments and criticisms we have received throughout. 1390 IOWA LAW REVIEW [Vol. 100:1389 I. INTRODUCTION ........................................................................... 1390 II. THE VOTING RIGHTS ACT AS A SUPERSTATUTE .......................... 1394 A. L ANDMARK S TATUTE ............................................................. 1396 B. C OOPERATION ....................................................................... 1403 1. Cooperation as Deference to Congress ..................... 1404 2. Cooperation as Deference to the Executive Branch .......................................................................... 1407 III. PRAGMATIC INTERPRETATION ..................................................... 1410 A. NORTHWEST AUSTIN AS A C HAIN L ETTER ............................ 1410 B. T HE B EGINNING : ALLEN ....................................................... 1415 1. The Act and Private Attorneys General ..................... 1415 2. Private Attorneys General and Local Federal Courts ........................................................................... 1416 3. Local Three-Judge Courts .......................................... 1418 IV. DISSENSUS ................................................................................... 1420 A. T HE E ND OF THE R ACIAL D ISCRIMINATION C ONSENSUS ........... 1420 B. T HREE C ONCEPTIONS OF D ISSENSUS ....................................... 1423 1. What Is Racial Discrimination? .................................. 1423 2. Does Geographical Targeting Remain Sensible? ...... 1424 3. Race v. Partisanship Redux ......................................... 1426 V. FORGING A NEW CONSENSUS: THREE MODELS ........................... 1430 VI. CONCLUSION .............................................................................. 1438 I. INTRODUCTION The Voting Rights Act (“VRA”) is dying. As we begin to chart a new course, we must understand why. The unraveling of the VRA is a remarkable moment in the history of voting rights law in the United States. Not only is the Act widely regarded as the most successful civil rights statute ever enacted by Congress, but it is also unlike ordinary legislation. From the moment the Supreme Court first addressed the constitutionality of the Act in South Carolina v. Katzenbach , 1 the Court has generally treated the VRA like a special statute, a superstatute. 2 A term of art, the word “superstatute” describes a category of landmark legislation that addresses a significant public policy problem that if left unresolved would call into question a fundamental 1. See generally South Carolina v. Katzenbach, 383 U.S. 301 (1966). 2. See infra Part II. 2015] THE VOTING RIGHTS ACT IN WINTER 1391 constitutional commitment. 3 The Supreme Court has, until recently, by and large, accepted the voting rights agenda represented by the VRA and viewed Congress and the executive branch as co-equal partners that were effectuating constitutional commands. One cannot read the early voting rights cases and view the Court as a neutral and detached arbiter on voting rights policy. As befits a superstatute, the Court interpreted the VRA pragmatically and gave effect to Congress’s aim in enacting the statute even if it meant interpreting both the statute and the Constitution elastically in order to do so. More importantly, the Court has generally viewed Congress and the Executive as its partners when interpreting the VRA. Consequently, the VRA, as it existed prior to the Court’s recent decision in Shelby County v. Holder , 4 was best understood as a joint product of Congress, the Executive, and the Court. Shelby County marks the death of the VRA as a superstatute. Specifically, the Court struck down the Act’s coverage formula, which identified the states that were subject to the Act’s special provisions, and it effectively neutered the existing preclearance regime. 5 This is significant; it signals that the partnership between Congress and the Executive, on one side, and the Court, on the other side, has disintegrated. With Shelby County and its herald, Northwest Austin Municipal Utility District No. One v. Holder (“ Northwest Austin ”), 6 the Court is cautiously dismantling the most important civil rights statute in our nation’s history. The strong message of Shelby County is that the voting rights era—and maybe much more broadly, the civil rights era—as we have known it, is over. The question for the foreseeable future is where does voting rights policy go from here? Not surprisingly, voting rights activists have called on President Barack Obama and Congress to enact a new coverage formula. 7 Indeed, a few weeks after the Shelby County decision, President Obama convened civil rights leaders to the White House to reassure them that his Administration is 3. See infra notes 15–20 and accompanying text. 4. Shelby Cnty. v. Holder, 133 S. Ct. 2612, 2631 (2013) (invalidating the VRA’s section 4(b) preclearance formula). 5. Id. 6. Nw. Austin Mun. Util. Dist. No. One v. Holder, 557 U.S. 193 (2009). 7. Commentators have suggested various fixes to the VRA, including using section 2 lawsuits as the basis for designing a new coverage formula. See Bernard Grofman, Devising a Sensible Trigger for Section 5 of the Voting Rights Act , 12 ELECTION L.J. 332, 334 (2013) (proposing that social science data on section 2 litigation be used to create a new trigger for section 5 coverage); see also Christopher S. Elmendorf & Douglas M. Spencer, The Geography of Racial Stereotyping: Evidence and Implications for VRA Preclearance After Shelby County, 102 CALIF. L. REV. 1123, 1174 (2014) (arguing that Congress should create a default coverage formula that could then be updated by the Department of Justice or another agency); Spencer Overton, Voting Rights Disclosure , 127 HARV. L. REV. F. 19, 29 (2013) (arguing that Congress should, among other things, update the preclearance formula). 1392 IOWA LAW REVIEW [Vol. 100:1389 committed to a bipartisan fix for the Act. 8 Attorney General Eric Holder, for his part, promised to use the remaining sections of the VRA to vigorously enforce voting rights policy. And as evidence of his commitment, Attorney General Holder filed suit in Texas and asked a lower court to use section 3(c) of the VRA to once again require the state to preclear some voting changes. 9 As these early responses to Shelby County reveal, many of the proposed fixes and reactions to the decision reflect an attempt to restore the status quo ante . These early efforts have been aimed at promoting aggressive section 2 litigation, using section 3’s bail-in provision, and using section 2 cases to craft a new coverage provision. Importantly, these strategies critically depend upon the continued persistence of racial discrimination in voting by state actors as the central problem of voting rights policy. This is because the most critical justification for the VRA has long been the presence, profundity, and persistence of intentional racial discrimination in voting by state actors. 10 More importantly, modern voting rights law and policy is held together by a consensus that clearly understood the reality, pervasiveness, and extent of racial discrimination by state actors in democratic politics. 11 This anti-discrimination consensus is the foundation upon which modern voting rights law is built. However, rightly or wrongly, the Court no longer believes that intentional racial discrimination by state actors remains the dominant problem of democratic politics. The decision in Shelby County is clear evidence that the Court’s current conservative majority believes that the regulatory model that has undergirded modern voting rights policy and has been in place for...