The Constitution need not be read to require that Congress amass social scientific evidence before exercising its power to enforce the Fourteenth Amendment.  Surprisingly, however, lower courts confronting a slew of recent challenges to the Voting Rights Act have come close to imposing such a requirement.  If the Supreme Court holds Congress to that standard, the Act is in serious jeopardy.

At issue is the constitutionality of Section 5 of the Voting Rights Act, a provision that singles out some parts of the country, but not others, for more intrusive federal oversight.  The idea behind Section 5 was to target those places where voting discrimination was worst.  The problem, according to Section 5’s challengers, is that Congress has never bothered to ask whether those “covered” jurisdictions have gotten better.  If they are no longer worse, why still single them out?

Confronted with just such a challenge by Shelby County, Alabama, the D.C. Circuit upheld Section 5 of the Voting Rights Act.  Perhaps ironically, however, Judge David Tatel’s thoughtful majority decision defending Section 5 may ultimately undermine it.  This is because his opinion implicitly accepts the idea that Congress needed to compile serious empirical evidence that voting discrimination against minorities remains worse today in jurisdictions covered by Section 5 than in uncovered jurisdictions.  He concluded that such evidence existed, and for that reason upheld the Act.  The problem is that, as is too often the case, the litigation process did a poor job of testing the validity of the empirical evidence that was before the court.  That evidence turns out to be deeply flawed, leaving the D.C. Circuit’s opinion vulnerable on its own terms.

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