Ginsburg, Dissenting
“Beyond question, the VRA is no ordinary legislation. It is extraordinary because congress embarked on a mission long delayed and of extraordinary importance: to realize the purpose and promise of the Fifteenth Amendment. For a half century, a concerted effort has been made to end racial discrimination in voting. Thanks to the Voting Rights Act progress once the subject of a dream has been achieved and continues to be made –” (570 U.S. 529, 36 (Ginsburg, R., dissenting)).
Justice Ginsburg on the importance and unique value of the VRA in protecting 15th Amendment rights
Ginsburg writes in dissent, joined by Kagan, Sotomayor, and Breyer. She begins by establishing the jurisdiction of Congress over the authorization of the VRA, then transitions to discussing the evidence by which Congress reauthorized sections 4(b) and 5, and concludes with a dissection of the majority opinion. She reasons that Congress's decision to renew the Act was fully within its power to enforce the 15th Amendment ‘by appropriate legislation’, and that Congress's reasons for doing so were rooted in precedent, quantitative evidence, and extensive input from outside parties. This is one of Ginsburgs most famous dissents she wrote while on the Court. It is a powerful, well reasonened interpretation of the information avalible to Congress during the renewal hearings for the VRA, as well as a competent rebuttal of the majority opinion
The dissent begins by analyzing Congress's reasoning for continuing the preclearance remedy of section 5. According to Ginsburg, the value of section 5 is rooted in the continued pervasiveness of racial discrimination in covered districts. Ginsburg draws upon the record presented to Congress during the renewal hearings in 2006, during which Congress found that there were 700 discriminatory practices blocked by section 5 between 1982 and 2004, an increase from the number of practices blocked between 1965 and 1982 (570 U.S. 529, 13 (Ginsburg, R., dissenting)). Additionally, more than 800 proposed changes to various voting regimes were altered or withdrawn after the DOJ requested more information about a change, signifying a large number of discriminatory proposals which were, “deterred without need for formal objection,” (570 U.S. 529, 14 (Ginsburg, R., dissenting)). This means that in the span of 22 years, the DOJ adressed more than 1500 discriminatory practices just in jurisdictions covered by section 4(b). On average, this comes out to more than one instance of discrimination being brought up every week, for 22 years. In light of the continued pervasiveness of discriminatory pracices, Ginsburg concludes that preclearance remains necessary.
“Throwing out preclearance when it has worked and is continuing to work to stop discriminatory changes is like throwing away your umbrella in a rainstorm because you are not getting wet –” (570 U.S. 529, 36 (Ginsburg, R., dissenting)).
Ginsburg next turns to Congress's reasoning for renewing the preclearance formula in section 4(b). According to the dissent, despite, “40 years and thousands of discriminatory changes blocked by preclearance," (19), the jurisdictions covered by the formula in 4(b) continue to display disproportionately high levels of racial discrimination in voting. In 2006, Congress reviewed a study which found that 56 percent of suits finding a law or practice to have the intent or effect of denying the right to vote on the basis of race came from districts covered by section 4(b), despite covered jurisdictions making up less than 25 percent of the country's population (570 U.S. 529, 20 (Ginsburg, R., dissenting)). Congress was furthermore able to determine that voting was more racially polarized in covered jurisdictions, increasing the risk of racial minorities, “being systematically outvoted and having their interests underrepresented in legislatures," (570 U.S. 529, 21 (Ginsburg, R., dissenting)). Ginsburg furthers her argument for the continuation of 4(b) by noting that the VRA includes provisions to both bail in and bail out covered jurisdictions. One issue the majority opinion takes with section 4(b) is in its perceived stagnancy; Roberts claims that the Act was renewed ‘as if nothing had changed’ (570 U.S. 529, 16). Ginsburg disputes this claim by noting that nearly 200 jurisdictions have successfully bailed out of preclearance, and jurisdictions including New Mexico and Arkansas have been bailed in (570 U.S. 529, 22 (Ginsburg, R., dissenting)). Then, because there were sufficient measures in place to amend which jurisdictions were covered by 4(b), Ginsburg concludes that jurisdictions which continued to be covered in 2006 were, “rightfully subject to preclearance, and ought to remain under that regime,” ((570 U.S. 529, 23 (Ginsburg, R., dissenting)). For these reasons, Ginsburg argues that the evidence before Congress in 2006 showed a continued disparity between covered jurisdictions with the rest of the country on the issue of racial discrimination in voting, validating continued use of 4(b).
Finally, the dissent concludes with an examination of the majority's reasoning. Ginsburg takes three main issues with the majority's reasoning: (1) the majority does not appropriately address the nature of Shelby County's challenge as facial, (2) the majority incorrectly applies precedent to argue that section 5 opposes the principles of federalism and equal sovereignty, and (3) the majority does not extend the usual respect paid to Congress on the implementation of the Civil War amendments, nor does it respect the legislative record compiled by Congress.
On the first issue, Ginsburg points out that facial challenges are notoriously difficult to prove, as they require showing that no set of circumstances exist in which the law or regulation at issue would be constitutional. Ginsburg argues that the Court ignores this definition by choosing to focus on the States broadly, without considering the specific case of the petitioner, Shelby County. Shelby County, she argues, undeniably demonstrates levels of discrimination which would justify some sort of preclearance provision. She points out that , “...even while subject to the restraining effect of §5, Alabama was found to have ‘deni[ed] or abrige[d]’ voting rights ‘on account of race or color’ more frequently than nearly all other States in the Union,” ((570 U.S. 529, 25 (Ginsburg, R., dissenting)). In her mind, because there exist in Alabama ‘current needs’ which would justify the burdens placed on the state by the preclearance requirement, the preclearance requirement could not be facially unconstitutional by definition. Although she does not mention it explicitly, it is also notable that the majority opinion writes that section 4(b) was contitutionally justified in 1965, just not in 2006. This should be disconcerting to John Roberts as, if it was constituional at one point in time, it cannot be facially unconstitutional because there have existed circumstances under which the section was valid. The majority does not adress this disparity.
To dispute the ‘equal sovereignty’ claim the majority makes, the dissent cites a previous Supreme Court case, Katzenbach v. Morgan, which established the precedent that the principle of equal sovereignty, “applies only to the terms upon which States are admitted in the Union, and not to the remedies for local evils which have subsequently appeared,” (383 U.S. at. 328-329). Ginsburg argues that the majority incorrectly applies this precedent, and intentionally obfuscates the language of Katzenbach and similar cases to justify their reasoning.
Lastly, Ginsburg argues that by ignoring the work Congress did in establishing the validity of the VRA during its renewal hearings, the Court departs from its historical deference to the legislative branch on political matters. Furthermore, ignoring the legislative record results in a holding that is out of touch with the practical effects of the VRA and is ultimately detrimental to the enforcement of the 15th amendment. She admits that significant progress has been made in reducing racial discrimination in voting, but contends that the VRA was the ‘driving force’ behind that improvement. Additionally, she writes that even though blatant racial discrimination has decreased, discrimination has also evolved into subtler 'second-generation barriers. Ginsburg expresses concern that, "...eliminating preclearance would risk loss of the gains that had been made,” (570 U.S. 529, 18 (Ginsburg, R., dissenting)). ‘Second-generation barriers’ refers to efforts aimed at diluting the impact of minority voters, rather than directly blocking access to the ballot.
The dissent finds the evidence Congress compiled during the VRA’s renewal hearings proved sections 4(b) and 5 to be the remedy most effective at dissuading racial discrimination in voting. For this reason, the dissent would affirm the decision of the District Court to continue preclearance. Famously, Ginsburg contends that, “throwing out preclearance when it has worked and is continuing to work to stop discriminatory changes is like throwing away your umbrella in a rainstorm because you are not getting wet,” ((570 U.S. 529, 33 (Ginsburg, R., dissenting)).
Shelby County v. Holder, 570 U.S. 529. 25 June 2013.