“Our job is to ensure that Congress’s judgment is reasonable and rests on substantial probative evidence,” Judge David Tatel wrote in the 63-page majority opinion. “After thoroughly scrutinizing the record and given that overt racial discrimination persists in covered jurisdictions … we are satisfied that Congress’s judgment deserves judicial deference.”
Tatel added: “Does the severe remedy of [Section 5] preclearance remain ‘congruent and proportional’? The legislative record is by no means unambiguous. But Congress drew reasonable conclusions from the extensive evidence it gathered.”
In a dissent, Judge Stephen Williams said the criteria Congress used to decide which states are covered by Section 5 were outdated and did not satisfy a Supreme Court requirement that the measure be “congruent and proportional” to Congress’s remedial goal of fighting discrimination.
Judge Williams said criteria used under the law are based on statistics from 1972. “If the formula were to be updated to use more recent election data, it would cover only Hawaii,” he said.
Judge Tatel said the question isn’t whether the law relies on old data, but whether the criteria continue to identify jurisdictions with the worst problems. “If it does, then even though the formula rests on decades-old factors, the statute is rational,” Tatel wrote.