Shelby County: Are all states created equal?

The Supreme Court declared a section of the Voting Rights Act unconstitutional last week in Shelby County v. Holder. The decision was based in part on the principle that all States enjoy equal sovereignty. Justice Ginsburg’s dissent predicted much mischief from this holding, noting that Congress has probably violated it many times. But rather than hamstringing the federal government, a more robust application of this principle would improve the political process and promote a more effective federalism.

The basic idea of the principle of equal sovereignty is that the federal government is responsible for adopting general nationwide legislation, but it cannot adopt laws for individual states. The Constitution’s federalist scheme leaves state by state regulation to the states. If the application of Congress’ general laws varies, that variation should be due to differences in the conditions of each state. But if New York and North Dakota are going to have different laws, that should be because the citizens of those states chose the laws that worked for them. This enables the states to serve as laboratories of democracy—meaning that a “state may, if its citizens choose, … try novel social and economic experiments without risk to the rest of the country.” But if the federal government can impose state by state regulation, the states are converted from laboratories to lab rats.

The Voting Rights Act did not always violate the principle of equal sovereignty. States were originally treated differently because of then existing distinctions; covered states had lower minority voter participation and had recently used discriminatory election procedures. But that was 40 years ago. Today the singling out of these states could not be justified by existing differences. And for that reason, the principle of equal sovereignty was violated.

As the dissent notes, statutes that privilege some states over others “are hardly novelties.” The Shelby County decision calls into question whether “such provisions remain[] safe given the Court’s expansion of equal sovereignty’s sway[.]” The answer, according to Shelby County, is that it depends on how the federal law discriminates amongst the states.  As the Court explained in Northwest Austin, “a statute’s disparate geographic coverage [must be] sufficiently related to the problem that it targets.” This means that some of the statutes that the dissent highlights may very well be in doubt.

For example, the dissent notes that the federal government prohibits the states from operating or permitting sports-related gambling, while a select few states–-most notably Nevada–-are exempt. New Jersey is challenging this regime; arguing that if sports gambling is fine in the Nevada desert, it can’t be so awful that it must be prohibited on the Jersey Shore. Since Shelby County was decided, the lawyers in the case have argued that Nevada’s special privilege over New Jersey violates the doctrine of equal sovereignty.

The Clean Air Act (CAA) also raises this problem. Under the CAA Amendments of 1967, states may not regulate mobile sources of air pollution except that California—and only California—may adopt a different standard if the EPA signs off. The other 49 states’ are deprived of their sovereign power to regulate air pollution and left only with a choice between the federal standard and California’s standard. There is some evidence in the legislative history that the waiver was intended to allow California to address its unique smog problem. But like the Voting Rights Act, the CAA waiver provision does not determine eligibility based on existing conditions, but conditions more than 40 years ago.

While the principle of equal sovereignty may be an important new check on Congress’ power, the dissent overstates how much of a burden it will be. It does not mean that the federal government cannot adopt neutral regulations that have disparate impacts on states with different conditions, provided that those impacts are attributable to these conditions.  A law that prohibited grazing on all federal lands, for instance, would be valid even though the effects of the law would disproportionately fall on the western states. Instead, the principle means that Congress can only pass laws if it is willing to apply the same standards to all of the states, and not just politically weaker ones. This principle also promotes a more robust federalism by ensuring that on policy issues that require experimentation, the states are able to explore solutions according to their own lights..