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

1389

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understood as the basis for the VRA as originally enacted, is no longer the best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 p resented this Article

in one form or another to the law faculties at Cornell, Duke, Emory, Florida St ate, Georgetown,

Indiana University Maurer, Minnesota, Notre Dame, St. Louis, UC Davis, Virginia, and

Washington University. We are extremely grateful for the many comments and criticis ms we have

received throughout.

1390 IOWA LAW REVIEW [Vol. 100:1389

I. INTRODUCTION ........................................................................... 1390

II. THE VOTING RIGHTS ACT AS A SUPERSTATUTE .......................... 1394

A. LANDMARK STATUTE ............................................................. 1396

B. COOPERATION ....................................................................... 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 CHAIN LETTER ............................ 1410

B. THE BEGINNING: 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. THE END OF THE RACIAL DISCRIMINATION CONSENSUS ........... 1420

B. THREE CONCEPTIONS OF DISSENSUS ....................................... 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).