Quick thoughts on Shelby County v. Holder

The Supreme Court handed down its opinion in Shelby County v. Holder, addressing the constitutionality of Section 4(b)'s coverage formula that subjected a number of states (e.g., Southern states with a long history of Jim Crow laws) to "preclearance" under Section 5 of the Voting Rights Act before they enacted any changes to their election laws or administration. Here are my quick thoughts.

• This result should come as a surprise to literally no one. In 2009, the Supreme Court handed down a decision in Northwest Austin Municipal Utility District Number One v. Holder  in which it unanimously--unanimously--found "serious constitutional questions" about the coverage formula (one justice would have found it outright unconstitutional). Congress, however, did not take this warning seriously (apparently). The decision to strike down the coverage formula was not a surprise.
  
• Some have critiqued that such a result is not "merely" striking down the coverage formula, but that, as Congress is not likely to come up with a new formula, Section 5 is effectively dead. I'll remain cautiously optimistic that Congress will attempt to hash something out; after all, there are things that Congress might include in the law (e.g., "voter integrity"-type laws). Of course, it might not. But I do think it's significant that the Court chose not to address the remedy (i.e., preclearance) as an unconstitutional exercise of power; instead, it is that Congress failed to tailor the law appropriately. (But, admittedly, I may be the only one in the room who thinks Congress may develop a new coverage formula....)
  
• There are many provisions of the Voting Rights Act that remain--most prominently, Section 2 lawsuits and the "bail-in" coverage under Section 3.  The Voting Rights Act wasn't struck down; a provision (admittedly, a rather significant provision) was.
  
• In the opinion itself, Chief Justice Roberts relies fairly heavily on Northwest Austin --much to Justice Ginsburg's chagrin in dissent. She calls its language "dictum" in places and rejects that  the "serious constitutional questions" raised there implied an answer. In Chief Justice Roberts's quest for unanimity in that case, it appears he got the upper hand.
  
• This case was a facial challenge. I find this one of the hardest aspects of the case. If Shelby County were solely challenging Section 5, it would be easier under the Court's precedents to find that there was adequate evidence in Congress for coverage to exist "as applied" to Shelby County. Indeed, I think, based on precedent, Justice Ginsburg has the upper hand (pp. 23-30).
  But that entire portion of Justice Ginsburg's opinion refers to Section 5, and only invokes Section 4 at 29 of that 8-page part of the dissent. Footnote 9 is instructive: "[T]he Court asserts that Shelby County may prevail on its facial challenge to [Section] 4's coverage formula because it is subject to [Section] 5's preclearance requirement by virtue of that formula. . . . This misses the reality that Congress decided to subject Alabama to preclearance based on evidence of continuing constitutional violations in that State."
  This, I think, is the weakest case on the facial challenge front--and probably why the only meaningful discussion of Section 4 in this portion of the dissent is dropped in a footnote. The majority emphasis that Congress uncritically left its coverage formula in place. It may well be that a new coverage formula would include Alabama, but the dispute is whether Congress "decided" much of anything at this point.
  This is also why, I think, Chief Justice Roberts's emphasis on Section 4 is more than semantics. If he were examining Section 5, he would have a much harder case to make. But he emphasizes Section 4's coverage formula instead.
  One may still believe that Congress had adequate evidence presented that the existing coverage formula in Section 4 was correct. But I think the emphasis on Section 4 makes the facial challenge a harder case.
  
• The majority and the dissent seem to agree that coverage of Arizona and Alaska, which have not had any successful Section 2 suits during a 24-year stretch, may  (this is some speculation) exclude them from coverage (majority at 8; dissent at 29).
  
• Chief Justice Roberts (perhaps taking a cue from his predecessor) is notoriously cagey about which provision of the Constitution he is interpreting (he suggests rather blandly "[b]oth the Fourteenth and Fifteenth Amendments," n.1)  and the standard of review (he refuses to cite City of Boerne v. Flores  or the "congruence and proportionality" test, but finds the formula "irrational"--it looks like it'll stick with rational basis review to avoid the harder problems post-Boerne).
  
• But there is a revitalized Tenth Amendment in the case: the Court cites Bond v. United States  (slip op. at 9) and emphasizes the Tenth Amendment citation in Georgia v. Ashcroft  (slip op. at 10). 
• The majority comes back, time and again, to "things have changed dramatically," "no longer such a disparity," "history did not end in 1965," and the like. In perhaps its strongest claim on the Fifteenth Amendment, "The Amendment is not designed to punish for the past; its purpose is to ensure a better future."
  
• Much of this opinion was telegraphed in Northwest Austin . It's hard to come up with novel things to say for those who've read it, and re-read it, these last four years.... 
• The dissent's strongest argument (in my view) is its examination of Section 2 challenges in covered and noncovered jurisdictions (19-23). It emphasizes that Section 2 challenges are significantly more successful in covered than noncovered jurisdictions, which suggests the covered jurisdictions have lasting problems.  The majority suggests that this "record" played "no role in shaping the statutory formula before us today"--but that, I think, undermines what one ordinary views as "rational basis" review; that is, the Court can come up with reasons even if Congress didn't include them in the record.
  

To emphasize a point raised earlier, will Congress develop a new Section 4 coverage formula so that Section 5 will live again? The predictions say no. But it's in this area that I'll continue to remain cautiously optimistic. There may be political horse-trading, and the coverage formula may be significant different (and almost assuredly smaller). But before declaring the death of Section 5, let's give Congress a couple of weeks to see if anyone intends on raising a serious alternative. Supporters of the Voting Rights Act may be pleasantly surprised.