# Is the Voting Rights Act of 1965 unconstitutional?
**URL:** https://boards.straightdope.com/t/is-the-voting-rights-act-of-1965-unconstitutional/594188
**Category:** Great Debates
**Created:** [August 26, 2011, 3:58pm UTC](https://boards.straightdope.com/t/is-the-voting-rights-act-of-1965-unconstitutional/594188 "2011-08-26T15:58:02Z")
**Posts on this page:** 20
**Page:** 1
### Author:  [@Whack-a-Mole](https://boards.straightdope.com/u/Whack-a-Mole)
#### Post date: [August 26, 2011, 3:58pm UTC](https://boards.straightdope.com/t/is-the-voting-rights-act-of-1965-unconstitutional/594188/1 "2011-08-26T15:58:02Z")
Title kinda says it all.
Apparently Arizona thinks it is:
> [@](#):
>
> Arizona Attorney General Tom Horne, a Republican, said that the portion of the law requiring the state to get prior approval from the Justice Department for any changes to the state’s election laws exceeds Congressional authority and is unconstitutional.
>
> “The portions of the … Act requiring preclearance of all voting changes are either archaic, not based in fact, or subject to completely subjective enforcement based on the whim of federal authorities,” Horne said in a statement.
>
> SOURCE: [http://thinkprogress.org/justice/2011/08/26/305054/arizona-vs-voting-rights/](http://thinkprogress.org/justice/2011/08/26/305054/arizona-vs-voting-rights/)
This is more than an Attorney General offering an opinion. Arizona is going to challenge the law.
While Section 5 of the law seems a particular target the argument goes deeper and may see the whole thing declared unconstitutional (from same link as above):
> [@](#):
>
> Yet Arizona also raises a new and deeply radical objection to the law, claiming that the VRA “exceeds Congress’s authority under the 14th and 15th Amendments because it suspends all changes to state election law – however innocuous – until preclearance is given by the federal government.” If this theory were actually adopted by the Supreme Court, it would mean that the Voting Rights Act was unconstitutional the day it was first signed in 1965.
Opinions?
ETA: More broadly is the relentless conservative effort to disenfranchise voters in this country. If they succeed in overturning the Voting Rights Act the way will be clear for ever more draconian restrictions used to disenfranchise voters.
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### Author:  [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)
#### Post date: [August 26, 2011, 4:50pm UTC](https://boards.straightdope.com/t/is-the-voting-rights-act-of-1965-unconstitutional/594188/2 "2011-08-26T16:50:08Z")
[No. And it wasn’t close.](http://en.wikipedia.org/wiki/Northwest_Austin_Municipal_Utility_District_No._1_v._Holder)
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### Author:  [@Whack-a-Mole](https://boards.straightdope.com/u/Whack-a-Mole)
#### Post date: [August 26, 2011, 5:05pm UTC](https://boards.straightdope.com/t/is-the-voting-rights-act-of-1965-unconstitutional/594188/3 "2011-08-26T17:05:16Z")
> [@Really\_Not\_All\_That\_Bright](#):
>
> [No. And it wasn’t close.](http://en.wikipedia.org/wiki/Northwest_Austin_Municipal_Utility_District_No._1_v._Holder)
The article in my link above suggests a challenge might work.
I’d quote more but afraid of running afoul of fair use restrictions (it is not a very long article).
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### Author:  [@Bricker](https://boards.straightdope.com/u/Bricker)
#### Post date: [August 26, 2011, 5:12pm UTC](https://boards.straightdope.com/t/is-the-voting-rights-act-of-1965-unconstitutional/594188/4 "2011-08-26T17:12:59Z")
> [@Really\_Not\_All\_That\_Bright](#):
>
> [No. And it wasn’t close.](http://en.wikipedia.org/wiki/Northwest_Austin_Municipal_Utility_District_No._1_v._Holder)
Read the case. _Northwest Austin Municipal Utility District No. 1 v. Holder_ expressly declines to rule on the constitutionality of Section 5. They resolve the case by deciding that the district was eligible for the bailout provision.
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### Author:  [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)
#### Post date: [August 26, 2011, 5:18pm UTC](https://boards.straightdope.com/t/is-the-voting-rights-act-of-1965-unconstitutional/594188/5 "2011-08-26T17:18:55Z")
There was nothing stopping them from ruling on the constitutional issue, which strongly suggests they will decline to rule on it here.
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### Author:  [@Whack-a-Mole](https://boards.straightdope.com/u/Whack-a-Mole)
#### Post date: [August 26, 2011, 5:52pm UTC](https://boards.straightdope.com/t/is-the-voting-rights-act-of-1965-unconstitutional/594188/6 "2011-08-26T17:52:42Z")
> [@Really\_Not\_All\_That\_Bright](#):
>
> There was nothing stopping them from ruling on the constitutional issue, which strongly suggests they will decline to rule on it here.
Well, you are free to hand-wave it away.
Tom Goldstein is mentioned in the article and he is not as unconcerned as you are and thinks this may have legs (so to speak).
> [@](#):
>
> Thomas C. Goldstein (Tom Goldstein) is an American attorney famous as an advocate before and blogger about the Supreme Court of the United States. He was a founding partner of Goldstein and Howe,[1] a Washington, D.C. firm specializing in Supreme Court litigation, and was, until the end of 2010, a partner at Akin Gump, where he was co-head of litigation and Supreme Court practice. He has since returned to his previous firm. In 2003, he co-founded SCOTUSblog, one of the most widely-read blogs covering the Supreme Court, and continues to be a contributing editor, providing analyses and summaries of Supreme Court decisions and cert petitions.
>
> SOURCE: [Tom Goldstein - Wikipedia](http://en.wikipedia.org/wiki/Tom_Goldstein)
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### Author:  [@fumster](https://boards.straightdope.com/u/fumster)
#### Post date: [August 27, 2011, 12:02am UTC](https://boards.straightdope.com/t/is-the-voting-rights-act-of-1965-unconstitutional/594188/7 "2011-08-27T00:02:05Z")
We’re re-fighting the Civil War. The next few years aren’t going to be pretty.
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### Author:  [@silenus](https://boards.straightdope.com/u/silenus)
#### Post date: [August 27, 2011, 12:59am UTC](https://boards.straightdope.com/t/is-the-voting-rights-act-of-1965-unconstitutional/594188/8 "2011-08-27T00:59:41Z")
As long as the same side wins, we’re golden.
Time to break out the Sharps and my blue blazer.
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### Author:  [@Bricker](https://boards.straightdope.com/u/Bricker)
#### Post date: [August 27, 2011, 2:31am UTC](https://boards.straightdope.com/t/is-the-voting-rights-act-of-1965-unconstitutional/594188/9 "2011-08-27T02:31:01Z")
> [@Really\_Not\_All\_That\_Bright](#):
>
> There was nothing stopping them from ruling on the constitutional issue, which strongly suggests they will decline to rule on it here.
Well, there is the canon of constitutional avoidance, which requires that if you have two possible constructions of a statute and one would result in raising a constitutional issue, if the other interpretation is one that is fairly possible, that is the interpretation that should be applied:
> [@Crowell v. Benson](#):
>
> When the validity of an act of the Congress is drawn in question, and even if a serious doubt of constitutionality is raised, it is a cardinal principle that this Court will first ascertain whether a construction of the statute is fairly possible by which the question may be avoided.
See also Public Citizen v. USDOJ et al.
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### Author:  [@Whack-a-Mole](https://boards.straightdope.com/u/Whack-a-Mole)
#### Post date: [August 27, 2011, 4:39am UTC](https://boards.straightdope.com/t/is-the-voting-rights-act-of-1965-unconstitutional/594188/10 "2011-08-27T04:39:12Z")
> [@Bricker](#):
>
> Well, there is the canon of constitutional avoidance, which requires that if you have two possible constructions of a statute and one would result in raising a constitutional issue, if the other interpretation is one that is fairly possible, that is the interpretation that should be applied:
What is this “canon of constitutional avoidance”?
How does it work? Is it just tradition? Something more? An obligation legally courts must follow? Something else?
(really asking, never heard of this term before…genuinely interested)
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### Author:  [@Captain\_Amazing](https://boards.straightdope.com/u/Captain_Amazing)
#### Post date: [August 27, 2011, 5:15am UTC](https://boards.straightdope.com/t/is-the-voting-rights-act-of-1965-unconstitutional/594188/11 "2011-08-27T05:15:59Z")
> [@Whack-a-Mole](#):
>
> What is this “canon of constitutional avoidance”?
It’s a fairly longstanding principle of judicial restraint that the courts follow, and that they’ve been stricter about lately, that says that a court shouldn’t rule on Constitutional issues unless they have to. Lets say you have a law that’s unclear and can be interpreted two ways…one of the interpretations is clearly constitutional and another interpretation raises Constitutional doubts. The Court, in that case, will say that the law should be interpreted in the constitutional way.
It’s one of the five main canons of deference, by the way. The other four are:
The canon of deference to administrative interpretation (the Chevron rule), which says that if a law that gives power to an administrative agency is unclear with respect to a specific issue, the court should defer to the agency’s reasonable judgement as to the interpretation of the law.
The canon of absurdity, which says that a law shouldn’t be interpreted in such a way that leads to an absurd or unjust result.
The clear statement rule, which says that if a law can be interpreted in such a way so as to make major changes in fundamental values or take away the rights of individuals, the court won’t interpret it in that way unless the legislature clearly states that that’s what they intend.
The last in time rule, which says that if two laws contradict, the more recent one will have authority.
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### Author:  [@Whack-a-Mole](https://boards.straightdope.com/u/Whack-a-Mole)
#### Post date: [August 27, 2011, 5:43am UTC](https://boards.straightdope.com/t/is-the-voting-rights-act-of-1965-unconstitutional/594188/12 "2011-08-27T05:43:37Z")
> [@Captain\_Amazing](#):
>
> It’s a fairly longstanding principle of judicial restraint that the courts follow, and that they’ve been stricter about lately, that says that a court shouldn’t rule on Constitutional issues unless they have to. Lets say you have a law that’s unclear and can be interpreted two ways…one of the interpretations is clearly constitutional and another interpretation raises Constitutional doubts. The Court, in that case, will say that the law should be interpreted in the constitutional way.
I’m not sure I follow.
Can you give an example (preferably real but hypothetical will do too)?
The way I parse what you said is, “All else being equal and given two choices between constitutional and unconstitutional we’ll default to it being constitutional”.
All fine and good but seems insanely narrow.
There is a subjectivity here that cannot be avoided and I cannot see this applying.
(Pretty sure I am missing something so again, really asking about this)
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### Author:  [@Evil\_Captor](https://boards.straightdope.com/u/Evil_Captor)
#### Post date: [August 27, 2011, 5:46am UTC](https://boards.straightdope.com/t/is-the-voting-rights-act-of-1965-unconstitutional/594188/13 "2011-08-27T05:46:47Z")
Well we DO have an activist conservative court at present. Look at Citizens United. Look at Gore V. Bush. I see no comfort in the thought that the current Supreme Court will defer to anything if they have the chance to give conservatives more power in America.
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### Author:  [@Captain\_Amazing](https://boards.straightdope.com/u/Captain_Amazing)
#### Post date: [August 27, 2011, 6:34am UTC](https://boards.straightdope.com/t/is-the-voting-rights-act-of-1965-unconstitutional/594188/14 "2011-08-27T06:34:41Z")
> [@Whack-a-Mole](#):
>
> I’m not sure I follow.
>
> Can you give an example (preferably real but hypothetical will do too)?
>
> The way I parse what you said is, “All else being equal and given two choices between constitutional and unconstitutional we’ll default to it being constitutional”.
Ok, well, lets look at Public Citizen v DOJ, which was one of the cases Bricker cited that uses the principle.
As you might know, when the President decides he’s going to appoint a federal judge, before he does, the Justice Department generally goes to the American Bar Association and asks them to research and rate the judge. Afterwards, the ABA releases the final ratings, like “qualified”, “very qualified”, or whatever, but they also write a detailed report, which gets sent to the Attorney General and President but not released to the public.
Meanwhile, in 1972, Congress passed something called the Federal Advisory Committee Act, or FACA, in order to regulate federal advisory committees. Before that, a lot of times, Presidents would make policy after secret informal meetings…you know, they’d set up a task force that meets in secret and all the records were kept private.
Anyway, Congress didn’t like that, so they passed FACA, which said basically that all administrative hearings and things had to be opened to the public. No more secret meetings.
In 1986, these two groups, the Washington Legal Foundation and Public Citizen, asked the ABA for a list of all the judicial nominees they were considering, as well as full minutes of ABA meetings. The ABA told them to pound sand. The Washington Legal Foundation sued, trying to compel them to turn over their records by getting on the record a decision that, because the ABA is a group that advises the White House, they’re a federal advisory committee under FACA and therefore they should have to turn over their records.
Part of the problem was, the statute was vague. FACA defined an “advisory committee” that was “established or utilized” by the President or an agency to give advice on public questions. So, does that include the ABA?
On the one hand, you could make the argument, like the Washington Legal Foundation and Public Citizen did, that sure it does. The question of whether or not is obviously a public question, and the President is “utilizing” the ABA to help make his decision. Therefore, the ABA is an advisory committee and subject to FACA.
On the other hand, the Justice Department said, “Look, it’s absurd to take the definition used in FACA to such a literal extreme. If you did, that would mean any time the president asked anyone for advice or information about anything, that would be an Advisory Committee. When Congress passed the law, they were worried about the President just listening to biased special interest groups, or setting up wasteful committees to give his friends or cronies jobs. They obviously didn’t intend it to apply to something like this. Besides, if you do, then that creates all sorts of Constitutional problems. The ABA is a private organization that doesn’t get any federal money at all, that isn’t appointed by the government. If the federal government forced them to turn over their minutes, that would have a chilling effect, and be a clear violation of their First Amendment rights. Also, the Constitution gives the President the sole power to appoint judges. Congress can’t pass a law telling him how he can or can’t come to the decision of who to appoint. So, if FACA actually does say what Public Citizen is claiming, the law is clearly unconstitutional.”
Justice Brennan who wrote the decision, said, “Look, the wording of that provision that defines an advisory committee is clearly pretty vague. You could interpret it either the way Public Citizen or the Justice Department are interpreting it. But the Justice Department is right. If FACA is interpreted the way Public Citizen wants it to be interpreted, and the minutes of the ABA have to be public record, that’s pretty clearly unconstitutional.”
“Now it’s pretty clear to me that given these facts, we have to give Congress the benefit of the doubt and assume they weren’t trying to knowingly pass an unconstitutional law when they passed FACA. Therefore, I have to assume that when Congress passed FACA, they never intended that the ABA’s advising the president on judicial nominees turned them into an advisory committee subject to FACA. The district court’s judgement is affirmed. FACA doesn’t make the ABA turn over their records.”
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### Author:  [@Little\_Nemo](https://boards.straightdope.com/u/Little_Nemo)
#### Post date: [August 27, 2011, 6:50am UTC](https://boards.straightdope.com/t/is-the-voting-rights-act-of-1965-unconstitutional/594188/15 "2011-08-27T06:50:40Z")
> [@Evil\_Captor](#):
>
> Well we DO have an activist conservative court at present. Look at Citizens United. Look at Gore V. Bush. I see no comfort in the thought that the current Supreme Court will defer to anything if they have the chance to give conservatives more power in America.
We have a mostly conservative activist court at present. But there are some things that Kennedy won’t stomach. My guess is overturning the Voting Rights Act would be one of them.
So I speculate the four conservatives on the court didn’t want to rule on the issue and risk having the VRA explicitly declared constitutional. Better to wait and hope a Republican president replaces Ginsburg or Breyer with another safe conservative vote.
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### Author:  [@AK84](https://boards.straightdope.com/u/AK84)
#### Post date: [August 27, 2011, 11:00am UTC](https://boards.straightdope.com/t/is-the-voting-rights-act-of-1965-unconstitutional/594188/16 "2011-08-27T11:00:19Z")
> [@Whack-a-Mole](#):
>
> I’m not sure I follow.
>
> Can you give an example (preferably real but hypothetical will do too)?
>
> The way I parse what you said is, “All else being equal and given two choices between constitutional and unconstitutional we’ll default to it being constitutional”.
>
> All fine and good but seems insanely narrow.
>
> There is a subjectivity here that cannot be avoided and I cannot see this applying.
>
> (Pretty sure I am missing something so again, really asking about this)
In laymans term; the legislature is elected and has law making powers; the Judiciary dose not. Courts do not like striking down laws which have been passed by a duly elected legislature. So if there is a law which could be construed as unconstitutional but if an alternative interpretation is taken it will not be unconstitutional, the courts instead of striking said law down will employ that alternative interpretation.
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### Author:  [@Acsenray](https://boards.straightdope.com/u/Acsenray)
#### Post date: [August 27, 2011, 11:46am UTC](https://boards.straightdope.com/t/is-the-voting-rights-act-of-1965-unconstitutional/594188/17 "2011-08-27T11:46:08Z")
> [@Whack-a-Mole](#):
>
> I’m not sure I follow.
>
> Can you give an example (preferably real but hypothetical will do too)?
>
> The way I parse what you said is, “All else being equal and given two choices between constitutional and unconstitutional we’ll default to it being constitutional”.
This isn’t addressing the direct question of whether the statute is constitutional. It’s addressing the situation in which two sides read the statute two different ways. Read one way, the statute exceeds Congress’s authority under the U.S. Constitution. Read the other way, it doesn’t. The canon says that the court should default to the reading that is constitutional.
This doesn’t mean that the court must find all congressional acts constitutional. It means that the statute will not be interpreted in such a way as to give Congress more powers than it has. So, Congress isn’t getting to change the bounds of its authority. The court is just giving it the benefit of the doubt: “We aren’t sure whether you meant for this statute to do A or B. If you meant it to do B, then we’d have to strike it down, so we’ll say you meant to do A, so the statute stands, but you don’t get to do B.”
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### Author:  [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)
#### Post date: [August 27, 2011, 2:19pm UTC](https://boards.straightdope.com/t/is-the-voting-rights-act-of-1965-unconstitutional/594188/18 "2011-08-27T14:19:28Z")
> [@Bricker](#):
>
> Well, there is the canon of constitutional avoidance, which requires that if you have two possible constructions of a statute and one would result in raising a constitutional issue, if the other interpretation is one that is fairly possible, that is the interpretation that should be applied:
>
> See also Public Citizen v. USDOJ et al.
Yeah, but this wasn’t a question of construction. In Northwest Austin Utility, the court avoided deciding a constitutional issue by ruling solely on whether it qualified as a political subdivision, not by construing the statute in a light which rendered it constitutional.
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### Author:  [@zamboniracer](https://boards.straightdope.com/u/zamboniracer)
#### Post date: [August 27, 2011, 3:15pm UTC](https://boards.straightdope.com/t/is-the-voting-rights-act-of-1965-unconstitutional/594188/19 "2011-08-27T15:15:50Z")
IAAL but Con Law isn’t my speciality, but it occurs to me that the state’s complaint might be barred by laches. The court might say, while your argument is interesting, you should’ve raised it before it was applied to your situation 40 years ago. Having abided by the statute for all that time, you are barred by laches from raising your unconstitutional argument now for the first time.
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### Author:  [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)
#### Post date: [August 27, 2011, 7:30pm UTC](https://boards.straightdope.com/t/is-the-voting-rights-act-of-1965-unconstitutional/594188/20 "2011-08-27T19:30:18Z")
That argument is pretty easily defeated by the state, IMHO; “well, it was constitutional then, because we were systemically infringing on minority voting rights, but it isn’t now, because we stopped but we’re still subject to standards other states aren’t.”
ETA: In other words, the requirement for Justice Department approval is constitutional, but the lack of a mechanism to remove that requirement is not.
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