House subcommittee airs conservative opposition to Voting Rights Act enforcement

By Vivake Prasad and Morgan Lee
AFJ Summer Associates

On Thursday, July 18, the House Subcommittee on the Constitution and Civil Justice held a hearing on the status of the Voting Rights Act (VRA) after Shelby County v. Holder struck down Section 4 of the law.  That section determined which states required preclearance before making changes to voting laws and procedures.  The hearing opened with a statement by Chairman Trent Franks, R-Ariz., one of only 33 Republicans in Congress to vote against the reauthorization of the VRA in 2006.  The overarching message from the Republican subcommittee members paralleled Chief Justice John Roberts’s Shelby County opinion: legislative remedies should respond to current conditions, and removal of the coverage formula in Section 4(b) does not spell doom for the VRA because it leaves intact other mechanisms for remedying voter discrimination.

Rep. Franks remarked on the virtues of reviewing allegations of voter discrimination under Section 3, which allows “bail-in” of jurisdictions with a history of voter discrimination, subjecting them to preclearance under Section 5.  Rep. Steve King, R-Iowa, notable for racially insensitive and controversial comments on immigration, took it one step further into the absurd, saying any update to the VRA should ban multilingual ballots.

Prof. Spencer Overton

The panel of witnesses made the gulf between the current positions of the two parties eminently clear.  The four witnesses included two opponents of the VRA’s coverage formula: J. Christian Adams of the conservative Election Law Center and Hans von Spakovsky of the Heritage Foundation. Also testifying were two advocates for voting rights: Professor Spencer Overton of George Washington University Law School and Robert A. Kengle of the Lawyers’ Committee for Civil Rights Under Law.

Adams referred to voter discrimination in the country as “vague and attenuated so-called second-generational structural discrimination,” and stated that this was not enough to warrant federal intervention. The former DOJ Voting Section attorney argued that the low number of investigations brought under Section 2 since President Obama took office was evidence of virtually non-existent voting discrimination. Notwithstanding Adams’s logically dubious assertion – for example, reduced Section 2 enforcement could be a product of limited resources or the deterrent effects of Section 5 – his testimony omitted the fact that Section 5 preclearance, based on the Section 4(b) coverage formula, has preempted numerous discriminatory proposals for voting changes.  Indeed, Rep. John Conyers, D-Mich., held up a binder containing 72 Department of Justice (DOJ) objections to proposed voting changes between 2000 and 2012. Adams, who served in the Department of Justice under George W. Bush, is known for racially inflammatory remarks. He recently suggested that the DOJ would be acting in concert with the New Black Panthers if it decided to pursue charges against George Zimmerman.

Von Spakovsky, who, while working in the Justice Department, shifted the DOJ Civil Rights Division’s focus from voter protection to “voter fraud” and is a vocal proponent of voter ID laws, was similarly extreme in his remarks. Arguing that voter discrimination has virtually disappeared since 1965, he repeatedly cited a favorite statistic of Voting Rights Act opponents: Black voter registration and voting rates now outnumber that of whites in districts covered by Section 5, due in part to something he termed “apartheid redistricting.” As Justice Ginsburg would say, von Spakovsky clearly prefers to throw out his umbrella during a rainstorm.

Furthermore, even though Shelby County explicitly refrained from making a determination on the constitutionality of Section 5, that did not stop von Spakovsky from suggesting that preclearance was no longer necessary since the American Civil Liberties Union has assets of $360 million to fight individual cases on behalf of disenfranchised minority voters.  But Overton aptly pointed out that the cost and burdens of that level of litigation would be prohibitive to many victims of voter discrimination – costs borne not only by the litigants, but by the Department of Justice and the taxpayers.

Thursday’s hearing made clear the challenges for congressional action after Shelby County. While House GOP members made few comments, Rep. King stated that any congressional effort with regards to voting rights would have to include provisions for voter ID and English-only ballots. Additionally, the extreme nature of the conservative witnesses’ testimony suggests that a compromise may be hard-won.

Senate Judiciary Committee hearing on the Voting Rights Act: “Section 5 has no peer”

This post discusses the testimony of Rep. John Lewis at a hearing of the Senate Judiciary Committee.  Rep. Lewis also was the keynote speaker at AFJ's annual luncheon for young activists.  You can see the video of that event at www.afj.org   And read about some young people who are following Rep. Lewis' example on our Bolder Advocacy blog.

By Natalie Knight
AFJ Summer Associate

Rep. John Lewis

In Selma, Alabama in 1965, John Lewis led a group of protesters across a bridge where they were attacked by state troopers.  The story, images, and videos from that attack became a powerful force for the eventual passage of the original Voting Rights Act of 1965 (VRA).  The work of these peaceful protestors and decades of bipartisan cooperation to renew the VRA were unraveled when the conservative bloc of the Supreme Court gutted Section 4 of the VRA in its recent decision in Shelby County v. Holder.  This past Wednesday, Representative John Lewis, D-Ga., came before the Senate Judiciary Committee for a hearing that acknowledged the long struggle for voting rights in which Rep. Lewis played such an important role: “From Selma to Shelby County: Working Together to Restore the Protections of the Voting Rights Act.”

Rep. Lewis recounted his personal involvement in the voting rights movement before turning to the grim reality that the Supreme Court’s decision in Shelby County has already had a profound impact on the right to vote.  In Shelby County, the five conservative justices held that the latest reauthorization of the VRA impermissibly relied on old data to decide which regions had to get approval from the federal government (a process called “preclearance”) before changing voting policies so that the federal government could ensure they were not disenfranchising minority communities (as detailed in Section 5 of the VRA).  At the hearing, Sen. Chuck Grassley, R-Iowa, echoed the decision by Chief Justice Roberts, recounting the numerous improvements in equality for African Americans and other minority populations since the original passage of the VRA as evidence that the VRA was outdated.

But Rep. Lewis explained that while progress has been made, the reaction to the Shelby decision showed just how crucial VRA still is for protecting voters’ rights.  “Only hours after the decision was announced by the Supreme Court—before the ink was even dry—states began to put into force efforts to suppress people’s voting rights,” he testified.  Senator Durbin noted that there is absolutely no evidence of the alleged voter fraud that has been used to justify voter ID laws and other voting restrictions that have been advanced by the conservative American Legislative Exchange Council and enacted by certain states, especially those that were until recently covered by Section 5 of the VRA.

Rep. James Sensenbrenner, Jr., R-Wis., who was chairman of the House Judiciary Committee during the last reauthorization of the VRA, explained that “Congress amassed a legislative record that totaled more than 15,000 pages documenting widespread evidence of intentional discrimination” and that the Shelby decision “disregarded years of work by Congress.”

In contrast, Michael Carvin, an attorney at the corporate law firm Jones Day who has represented states in their attempts to preserve burdensome voting restrictions, stated that while Congress gathered 15,000 pages of evidence, they didn’t use it when reauthorizing the VRA but instead used the same formula from 1965 to decide which regions were subject to preclearance under Section 5 of the VRA. Apparently, Carvin did not allow for the possibility that, in those 15,000 pages, Congress found that the regions with the greatest problems in ensuring equal voting rights for all Americans in 1965 were highly correlated with those that had the greatest problems in 2006. Congress also included a provision that allowed areas covered by the formula to be “bailed out” from the preclearance requirement when they could show they didn’t have discriminatory practices. Since then, some jurisdictions have successfully bailed out of the preclearance requirement of the VRA.

Carvin went on to explain that Section 2 of the VRA, which is still in effect, allows for lawsuits after discriminatory laws and practices have already been adopted and is sufficient to protect voters’ rights.  But Professor Justin Levitt, an expert in voting rights who teaches at Loyola Law School, noted the numerous ways in which Section 2 is insufficient.  Bringing a lawsuit after discrimination has occurred often leaves in place those who were elected through illegal practices.  Even if future elections are fair and open, those elected under the spurious procedures now have the benefit of incumbency.  Additionally, a lawsuit is much more expensive than preclearance and places the initial cost on those who were discriminated against.  Sometimes the data necessary to actually win in such a lawsuit may be nearly impossible or prohibitively burdensome to obtain.  Because Section 2 lawsuits are so costly and because the damage has often been done by the time a lawsuit has ended, lawmakers are aware that many voter restrictions will simply go unchallenged.   Thus, Section 2 fails to provide the deterrent effect which was achieved by having to first submit any proposed changes to the federal government.  As Aventura, Florida Commissioner Luz Urbaez Weinberg (a Republican and the only Hispanic elected to her office) emphasized, “Section 5 has no peer.”

As the House and Senate work to create a new formula to reinvigorate the powerful protections of preclearance under Section 5, it is important to carefully consider what data might be used to create a law that protects the rights of all Americans to vote without fear of discrimination.  Since preclearance prevented many laws that could have resulted in Section 2 lawsuits, Congress should look beyond these lawsuits for evidence of discriminatory practices.  Since, as Commissioner Urbaez Weinberg explained, voter discrimination has gotten even “sneakier” in many areas that were not previously covered by Section 4, Congress should look at what new areas might need preclearance.  Since in 2012, African Americans and Hispanics waited nearly twice as long to vote as whites, voter wait times may also be a critical indicator for preclearance.

We agree with Sen. Grassley that “any legislative fix [to restore Section 5] should not threaten common sense measures to ensure the integrity of voting.” But Sen. Grassley  was referring to a proposal to exempt Voter ID laws from scrutiny. Common sense dictates that if thousands of pages of evidence of voter discrimination were necessary to reauthorize the Voting Rights Act then something more than unsubstantiated claims of voter fraud are necessary to permit restrictive voter identification laws.  I hope Senator Grassley and his colleagues will not delay the restoration of the VRA with fictions of voter fraud in light of the urgent, documented need to protect voting rights.

As Congress considers how to reinvigorate Section 5 by creating a new preclearance formula, we hope all members of Congress will remember the words of Commissioner Urbaez Weinberg: “The Voting Rights Act is not a partisan issue; it is an American issue.”

Read more about the Voting Rights Act, and the arguments in Shelby County v. Holder.

GUEST BLOG: Judicial Hubris

By William Yeomans, 

Fellow in Law and Government at American University 

Washington College of Law

In the majority opinion today in Shelby County v. Holder, the five conservative members of the Supreme Court continued their assault on remedies for racial discrimination.  The Court held unconstitutional Section 4(b) of the Voting Rights Act, which is the formula for determining which jurisdictions are required to seek advance approval of voting changes pursuant to Section 5 of the Act.  

William Yeomans

Section 5, first enacted in 1965, has been widely praised as the single most effective civil rights law.  The coverage formula captured primarily the states of the Deep South where minority voters had been brutally and effectively denied the franchise since Reconstruction.  It subjected covered jurisdictions to a requirement that they prove to the Attorney General or a three-judge federal court that proposed election changes would not have the purpose or effect of discriminating on the basis of race.

The law was first enacted in 1965 and reauthorized in 1970, 1975, 1982, and 2006.  In 2006, Congress held numerous hearings and compiled a massive legislative record supporting reauthorization.  It showed that there had been improvement in some aspects of voting, but that discrimination persisted in ever evolving forms.  Congress made the judgment that lifting Section 5 would be premature and would likely leave Section 5’s job unfinished.

With stunning arrogance, the Court’s conservative majority dismissed the efforts of Congress, moving Justice Ginsburg to say in dissent: “Hubris is a fit word for today’s demolition of the VRA.”  The majority barely engaged with the massive record Congress developed, instead picking out selected facts to support its conclusion that conditions had changed sufficiently that Section 5 could no longer be tolerated. 

The majority’s decision registers disdain for the power of Congress.  The Voting Rights Act was enacted pursuant to the Fourteenth and Fifteenth Amendments.  The Fifteenth Amendment prohibits discrimination in voting on account of race and states:  “The Congress shall have power to enforce this article by appropriate legislation.”  The Fourteenth Amendment similarly empowers Congress.  In passing legislation to protect the right to vote against racial discrimination, Congress acted at the height of its powers.  Yet, the majority ran full tilt over Congress in its rush to strike down the law.  It substituted its judgment for that of Congress, unfazed that Congress had reauthorized the statute by a unanimous vote in the Senate and an overwhelming vote in the House.

In doing so, it seemed to elevate a previously non-existent notion of the “equal sovereignty” of the states over the rights of individual minority voters, who had long been the victims of state action.  The Court had previously rejected the applicability of the doctrine to Section 5 when it first upheld the law in 1966.

By striking down only Section 4(b) and leaving the preclearance requirement of Section 5 in place, the Court largely gutted Section 5, but explicitly left open the possibility that Congress could enact a new coverage formula.  Given the difficulty the current Congress has in passing major legislation, the Court’s opponents of the law may have felt safe making their offer, and instant commentators have been quick to note the difficulty of passing such legislation. 

Yet, there are strong reasons for Congress to respond with a bipartisan enactment.  First, protecting the right of all eligible people to vote should and must be a priority for members of both parties.  Second, Republicans and Democrats should be concerned about the slap in the face that the Court delivered to Congress.  It is incumbent on Congress to step up and reassert its authority to make law.  Finally, we are now seeing in the movement of the immigration bill that bipartisan action in the Senate is still possible when both parties perceive that it is in their interest.  Many in the Republican Party understand that they cannot continue to be seen as the party that opposes the interests of Latino and other minority voters if the party hopes to remain competitive.  That same instinct should lead some to support a bipartisan effort to fill the gaping hole that the Supreme Court blew in our voting rights laws.  

William Yeomans is a Fellow in Law and Government at American University's Washington College of Law.

Read More:
--AFJ's statement in response to today's decision
--AFJ Audio Analysis, with excerpts from the oral arguments. 
--More about the Voting Rights Act