In a 2-1 decision this morning in the Shelby County case, the D.C. Circuit Court of Appeals upheld the continued constitutionality of section 5 of the Voting Rights Act.
Writing for the majority, Judge Tatel said:
In Northwest Austin, the Supreme Court signaled that the extraordinary federalism costs imposed by section 5 raise substantial constitutional concerns. As a lower federal court urged to strike this duly enacted law of Congress, we must proceed with great caution, bound as we are by Supreme Court precedent and confined as we must be to resolve only the precise legal question before us: Does the severe remedy of preclearance remain ‘congruent and proportional’? The legislative record is by no means unambiguous. But Congress drew reasonable conclusions from the extensive evidence it gathered and acted pursuant to the Fourteenth and Fifteenth Amendments, which entrust Congress with ensuring that the right to vote - surely among the most important guarantees of political liberty in the Constitution - is not abridged on account of race. In this context, we owe much deference to the considered judgment of the People’s elected representatives.
Judge Williams dissented, writing that in his view that “when Congress passed the 2006 version of the VRA, it not only disregarded but flouted [constitutional] concerns.”
Judge Williams’ dissent went on to say:
Preclearance now has an exclusive focus - whether the plan diminishes the ability of minorities (always assumed to be a monolith) to ‘elect their preferred candidates of choice,’ irrespective of whether policymakers (including minority ones) decide that a group’s long-term interests might be better served by less concentration- and thus less of the political isolation that concentration spawns.
[A] congressional mandate to assure the electoral impact of any minority’s majority seems to me to be more of a distortion than an enforcement of the 15th Amendment’s ban on abridging the ‘right of citizens of the United States to vote … on account of race, color, or previous condition of servitude.’ Preventing intentional discrimination against a minority is radically different than actively encouraging racial gerrymandering in favor of the minority (really, the majority of the minority), as § 5 does.
With the opinion out, the case almost certainly looks set to be heard by the Supreme Court in its Fall term.
The court’s opinion and Judge Williams’ dissent can be found here.