National Association of Attorneys General
The Supreme Court Term: Issues Left Open for the Future
Whither §5 of the Voting Rights Act?
At the end of its decision in Shelby County, Ala. v. Holder, the Court confirmed that it “issue[s] no holding on §5 itself, only on the coverage formula. Congress may draft another formula based on current conditions. Such a formula is an initial prerequisite to a determination that” §5 itself is still constitutional. Of course, if Congress cannot agree upon a replacement formula, the constitutional issue is moot and no state will be subjected to the preclearance requirement. But what if Congress manages the impressive political feat of coming up with a new formula? What are the chances the Court will uphold it?
On the one hand, much of the Court’s opinion in Shelby County reads as an attack on the §5 preclearance process as a whole, not merely its outdated coverage formula. Section II of the opinion (pages 11-17) emphasizes the “extraordinary” nature of the preclearance process in our federal system; its tension with the “fundamental principle of equal sovereignty” among the states; and the dramatic improvement our nation has seen in the “numbers of registered minority voters, minority voter turnout, and minority representation in Congress, State legislatures, and local elected officers.” Even a new, updated coverage formula would be challenged as too great an intrusion into state sovereignty.
On the other hand, an updated formula would presumably cover only those jurisdictions with the worst recent track record of adopting discriminatory voting measures. Defenders of §5 could then argue that “extraordinary” measures remain necessary as to those jurisdictions, and that the principle of equal sovereignty allows the federal government to treat states differently when the states’ actions show that they merit different treatment.
The Court’s reasoning in Shelby County complicates the task of assessing what the Court will do with a future challenge to §5. Shelby County did not apply a specific test or level of scrutiny; and it did not indicate whether the “congruence and proportionality” test set out in City of Boerne v. Flores applies here. Meanwhile, we wait to see if Congress will put the Court to the test.
From whom can the police take DNA?
In Maryland v. King, the Court gave a smashing victory to law enforcement, rejecting a Fourth Amendment challenge to a Maryland statute authorizing the police to take DNA samples from persons arrested for “serious offenses.” But the Maryland statute contains features not shared by some other states’ statutes or by the federal DNA statute. Would the result be the same if, in contrast to Maryland:
- the police may take DNA from anyone who is arrested, even for misdemeanors?
- the DNA sample is not destroyed if the arrestee is not ultimately convicted?
- the police test for familial matches?
- the DNA sample is processed even before a judicial officer finds probable cause to detain the arrestee?
Also unclear is what states may do with arrestees’ DNA, apart from running it through the CODIS database to see if there’s a match. May the state, once it has lawfully collected the DNA, use that DNA for other governmental purposes? King is only the beginning of the Court’s DNA jurisprudence.
The Elections Clause and voting qualifications
The Court’s decision in Arizona v. Inter Tribal Council of Arizona was a mixed bag. The bad news (for Arizona) was the Court’s ruling that the federal National Voter Registration Act’s requirement that states “accept and use” a uniform federal form to register voters for federal elections preempts an Arizona law that requires state elections officials to reject applications for registration if they are not accompanied by documentary evidence of citizenship. The good news was that the Court left open an avenue by which Arizona could ultimately enforce its law ─ and opened the door more generally to state challenges to federal election laws.
The Court explained that while the Elections Clause (Art. I, §4, cl. 1) empowers Congress to “make or alter” laws regarding the “Times, Places and Manner of holding Elections for Senators and Representatives,” other provisions of the Constitution grant the states the exclusive power to establish the qualifications for voting for those offices. The Court went on to recognize that “the power to establish voting requirements is of little value without the power to enforce those requirements.” Arizona is therefore “correct,” held the Court, “that it would raise serious constitutional doubts if a federal statute precluded a State from obtaining the information necessary to enforce its voter qualifications.” The Court said that Arizona can raise such a claim by filing an APA challenge should the federal Election Assistance Commission (EAC) fail to “include the evidence-of-citizenship requirement among the state-specific instructions on the Federal Form.”
This may therefore be the beginning of a new line of cases that addresses when “a federal statute preclude[s] a State from obtaining the information necessary to enforce its voter qualifications.” How “necessary” must the information be? What if a state requirement would prevent 10,000 non-citizens from registering to vote? Does that make it “necessary”? What if the requirement would prevent 200 non-citizens from registering? Who gets deference, if any – the EAC or the state election officials? And how much weight should be given to other states’ practices? Is a requirement “necessary” if, say, half the states don’t impose it? What about a third? As I said, this is just the beginning.
More Fourth Amendment challenges for the police
The states did not fare as well in other important Fourth Amendment cases this Term, one of which leaves open some very important questions. In Florida v. Jardines, the Court held that “using a drug-sniffing dog on a homeowner’s porch to investigate the contents of a home is a ‘search’ within the meaning of the Fourth Amendment.” Applying its reasoning from United States v. Jones (2012), the Court held that the officer’s actions constituted a search because they were “an unlicensed physical intrusion” of a “constitutionally protected area” (the curtilage of a home) done for the purpose of gathering information.
We now know that the police can use drug-detection dogs outside cars without a warrant, but not within the curtilage of a person’s home. Clear enough. But what if the suspect doesn’t own his residence? What if the owner of an apartment building gives an officer consent to walk down the halls of the building with his drug-sniffing dog? This would not physically invade the apartment-dweller’s property, meaning the reasoning of Jardines and Jones probably wouldn’t apply. But it might invade the person’s “reasonable expectation of privacy,” and therefore constitute a search under the Katz test.
Another open question is what other actions police officers may not take outside the front door of a suspect’s home. The Court in Jardines criticized the dissent for “let[ting] the police do whatever they want by way of gathering evidence . . . so long as they ‘stick to the path that is typically used to approach a front door, such as a paved walkway.’ From that vantage point they can presumably peer into the house through binoculars with impunity. That is not the law, as even the State concedes” (internal citation omitted). So, officers cannot walk up to the front door and peer into the kitchen window with binoculars. Can they walk up to the front door and investigate to their heart’s content so long as they don’t use any sense-enhancing technology? The Court says that “no one is impliedly invited to enter the protected premises of the home in order to do nothing but conduct a search.” Does this mean officers are permitted only to knock on the door to speak with residents? Future cases will likely narrow the scope of the Court’s dicta, but only time will tell.
Now it’s on to the 2013 Supreme Court Term, where the Court already is slated to address, among other things, abortion, affirmative action, the Establishment Clause ─ all cases that will resolve questions left open in opinions from prior Terms.