Gerrymandering, the Voting Rights Act, and the Constitution: Shelby County v. Holder

Things have been a little slow this week at the Supreme Court, but in the next few weeks the Highest Court in the Land will be hearing some pretty high-profile cases. First, at the February 15 Conference, the Court will consider petitions for cases that have to do with, among other issues, the Federal Election Campaign Act and the First Amendment (Danielcyzk v. United States) and the standard for determining obscene material (Butt v. Utah). Also, we already know that in late March, the Court will hear the two cases regarding same-sex marriage (Hollingsworth v. Perry and United States v. Windsor, see here). But now, on February 25, the Supreme Court will hear a case called Shelby County v. Holder (see here or here, originally called Nix v. Holder), which asks whether Congress violated its authority under the Fourteenth and Fifteenth Amendments when, in 2006, it reauthorized Section 5 of the Voting Rights Act of 1965.

I wrote briefly about Section 5 of the VRA in an earlier post (see here), but I think it’s important to review some of the details surrounding Section 5 before questioning its constitutionality and whether Congress was right to renew it.  Section 5 requires certain states, counties, and townships to submit their redistricting plans to either the United States Attorney General (through the Civil Rights Division of the Department of Justice) or the District Court of the District of Columbia in order to ensure that the right to vote was not “abridge[d]… on account of race, color, or membership in a language minority group” (from the Justice Department). The states currently subject to Section 5 are Alabama, Alaska, Arizona, Georgia, Louisiana, Mississippi, South Carolina, Texas, and Virginia; certain counties in California, Florida, New York, North Carolina, and South Dakota must comply with Section 5; and even some townships in both Michigan and New Hampshire are required to submit their plans (see here for a more detailed list).

As I said in my other article regarding Section 5, the redistricting process is messy and extremely partisan. Oftentimes, minorities are placed strategically throughout districts to either increase or decrease a party’s success in certain areas. Both parties create maps that make no sense geographically and that highly discriminate against minorities just to give themselves more seats; these maps usually end up in court because they violate either Section 5 or other state-implemented redistricting rules, such as following county lines. “Minority-majority” districts exist, where a district is mostly populated by a certain race and a congressperson of that same race has represented the area for a long time, which is good for the representation of minorities in Congress, but sometimes these districts are used to remove minorities from other areas to either hurt or help Democrats or Republicans. In short, the redistricting process is broken, and in some ways it’s positive that Section 5 is still in place.

However, the focus of the case (at least on the surface) isn’t whether Section 5 of the VRA is useful; it’s whether Congress was allowed to renew Section 5 in 2006 under the powers granted to it by the Fourteenth and Fifteenth Amendments. The Fourteenth Amendment grants due process and equal protection of the laws to all persons in each state, and also requires that no state make any laws that abridges the privileges or immunities of citizens of the United States, and says that Congress can make and enforce legislation to ensure that the amendment is followed. The Fifteenth Amendment says that the right to vote “shall not be denied or abridged by the United States or by any state on account of race, color, or previous condition of servitude,” and that Congress “has the power to enforce this article by appropriate legislation.”

Judging by the text of these amendments, it seems that Congress did have the power to renew Section 5 of the VRA. Though the system might be broken and it’s probably worth reconfiguring the long and involved process that Section 5 uses to review the questionable redistricting plans, racial discriminiation still does occur during the redistricting process. The right to vote isn’t necessarily being denied to minorities, but their votes are, at times, seriously diluted due to gerrymandering. Also, plans that discriminate against minorities could be considered an “abridgement” of the minority citizens’ privileges or immunities of citizenship, namely the right to vote. Ultimately, though, it’s up to the Supreme Court to decide Congress’ ability to renew Section 5. I’ll be watching this case closely—its outcome will shape all redistricting in the future, for better or for worse.