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Reason Foundation Supreme Court Amicus Brief: Shelby County, Alabama v. Eric H. Holder, Jr., Attorney General, et al.

The Supreme Court should reject the Court of Appeals’ erroneous reliance on post-enactment evidence

January 3, 2013

Issue:

Whether Congress’ decision in 2006 to reauthorize Section 5 of the Voting Rights Act under the pre-existing coverage formula of Section 4(b) of the Voting Rights Act exceeded its authority under the Fourteenth and Fifteenth Amendments and thus violated the Tenth Amendment and Article IV of the United States Constitution.

Summary of Argument:

This Court bears the responsibility of ensuring that legislation enacted under Congress’s authority “to enforce” the Reconstruction Amendments does not change constitutional rights or unduly interfere with State sovereignty. The Court historically has executed that duty by assessing challenged laws under a three-part test. This brief focuses on the second part of that test, which requires analyzing the legislative record at the time the challenged law was passed to determine whether Congress had identified a history and pattern of unconstitutional discrimination by the States. Under the Court’s precedents, only a record containing such a showing can justify an exercise of Congress’s enforcement authority.

The Court has applied that test to assess the constitutionality of, among other statutes, the Voting Rights Act of 1965 (and certain amendments to it), the Religious Freedom Restoration Act, and abrogations of State sovereign immunity in the Americans with Disabilities Act of 1990, the Family and Medical Leave Act of 1993, and the Age Discrimination in Employment Act. Each case scrutinized the pre-enactment legislative record to determine whether Congress had amassed evidence of a pattern of constitutional violations by the States warranting the corresponding exercise of enforcement authority. The Court’s requirements on this issue are clear, and the federal district courts and the Executive Branch have repeatedly followed them with no apparent difficulty. But in this case, the Court of Appeals relied in significant part on two sets of evidence created after 2006 to support its judgment, that the 2006 reauthorization of Section 5 of the Voting Rights Act was a constitutionally valid exercise of Congress’s authority to enforce the Fifteenth Amendment. That approach cannot be reconciled with this Court’s precedents requiring analysis of the evidentiary record at the time of legislative activity. Left unchecked, that approach may require the States— coordinate sovereigns—to endure years-long lawsuits to learn the post-hoc rationales allegedly justifying federal intrusion into their sovereign spheres. That approach also would allow repeated challenges to statutes enacted under Congress’s enforcement authority any time “new” evidence emerged that could be construed to undermine Congress’s reasoning.

Section I reviews in detail this Court’s precedents requiring a court to examine the evidence of discrimination that Congress compiled before legislating to enforce the Reconstruction Amendments. Section II examines the Court of Appeals’ improper—yet crucial—reliance on post- enactment evidence to confirm the validity of Section 5’s 2006 reauthorization.

This Court should reject the Court of Appeals’ approach. It should assess the constitutionality of Section 5’s 2006 reauthorization solely based on the record of unconstitutional State discrimination that Congress had compiled in 2006.


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