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.

Hey Congress, why don’t you call John Roberts’ bluff?

By Michelle D. Schwartz
Director of Justice Programs

In a devastating decision he no doubt hopes will be overshadowed by Wednesday’s historic marriage equality decisions, Chief Justice John Roberts on Tuesday tore out the heart of the Voting Rights Act, arguably the most successful civil rights law in our nation’s history.

Chief Justice John Roberts

Roberts’s opinion—for himself and the other four conservatives on the Court—struck down as unconstitutional the formula in Section 4 of the VRA that dictates which jurisdictions must have voting rules changes preapproved under Section 5 of that same law.  Section 5 theoretically survives; it just doesn’t actually apply to anyone anymore.

The Chief Justice’s opinion cynically states that the Court isn’t doing any big thing because Congress can act to restore the Voting Rights Act:

We issue no holding on §5 itself, only on the coverage formula. Congress may draft another formula based on current conditions.

But as Professor Richard Hasen so aptly pointed out in The New York Times earlier this week, Roberts knows that won’t happen:

The chief justice couches his opinion in modesty, stating that the court is striking only the Section 4 coverage formula and not Section 5. But don’t be fooled: Congress didn’t touch the formula in 2006 because doing so would have doomed renewal. Congress avoided the political issue then, and there’s no way today’s more polarized Congress will agree upon a new list of discriminatory states.

In other words, Roberts is trying to have it both ways:  claiming he has left Section 5 of the VRA intact, while knowing he has effectively killed it because Congress won’t act.

So why doesn’t Congress call his bluff? Wouldn’t it be great if Congress went ahead and did what Roberts has said they can and should do?  Wouldn’t it be fun to watch Roberts have to keep smiling and pretending this is truly what he wanted all along?

Acting in this way could be particularly therapeutic for those Democratic senators (and they know who they are) looking to atone for voting to confirm John Roberts.  It’s too late to keep him off the bench, but you can still show him who’s boss!

And while they’re at it, members of Congress should go for broke by restoring some of the other rights the Court has undermined in recent weeks and years, including the right to sue for discrimination and harassment at work, and the right to band together with others who have been harmed by big corporations to vindicate your rights.

In all of these cases, Roberts and his conservative buddies on the Court have clearly shown they don’t live in the real world.  It’s time for members of Congress to prove they do.

Good decisions on marriage equality, bad decision on Voting Rights Act leave America part equal and part unequal

Alliance for Justice President Nan Aron released the following statement today in response to the Supreme Court decisions in United States v. Windsor and Hollingsworth v. Perry:

AFJ President Nan Aron speaks
at a rally in support of marriage equality
when the cases were argued in March

We strongly applaud the decisions in United States v. Windsor and Hollingsworth v. Perry and look forward to the implementation of marriage equality in California and to the application of full federal rights to all same-sex married couples nationwide. This is a great day, not only for LGBT Americans, but also for all who cherish the fundamental principle of equal justice for all.

We are mindful, though, that although today the arc of history bent a little more toward justice,  there still is a long way to go.  This week’s conflicting decisions by the Supreme Court on marriage equality and voting rights are at once profoundly hopeful and deeply disappointing.

Even as we celebrate today’s victories, we are appalled, but not surprised that the Court in Shelby County V. Holder has cut the heart out of the Voting Rights Act, one of America’s most important civil rights statutes. This week, the Court majority willfully turned its back on the hard-won promise of equality, based on the delusion that the quest for racial equality is over.

Taking these cases together, we are concerned that this Court, by moving in opposite directions simultaneously, has once again left the nation part equal and part unequal.  Regrettably, this Supreme Court majority has seen fit to give with one hand, while taking with the other. The struggle for a full measure of justice for every American must continue in our own time, as it has since our nation’s founding. As Fannie Lou Hamer said so well, “Nobody’s free until everybody’s free.”

Read More:
● AFJ Audio Analysis of the marriage equality cases.
● Read more about marriage equality.
●Videos from AFJ’s luncheon celebrating marriage equality victories in the states.
● Video: AFJ President Nan Aron’s call for marriage equality during a rally at the Supreme Court in March.
● AFJ Audio Analysis of the Voting Rights Act case.
● Read more about the Voting Rights Act.

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

Supreme Court betrays principles of justice and fairness in Voting Rights Act decision

Alliance for Justice President Nan Aron released the following statement today in response to the Supreme Court decision in Shelby County v. Holder:

The Voting Rights Act protects a fundamental right, not, as Justice Scalia infamously suggested, a “racial entitlement.”  Attempts to suppress the vote were common during the 2012 presidential election, and they continue to this day.  Now that a five-justice majority of the Supreme Court has effectively removed the keystone from the arch of protection for people of color, the nation must redouble its efforts to protect the rights of all Americans.

Chief Justice John Roberts
wrote the majority opinion

Today, by overturning a crucial part of the Voting Rights Act, five justices betrayed the principles of justice and fairness embodied in this law for half a century—and showed a callous disregard for the realities still faced by people of color.  Congress must now act without delay to restore the power of the Voting Rights Act to serve as a bulwark against persistent discrimination.

Read More:
--Prof. William Yeomans analyzes today's decision
--AFJ Audio Analysis, with excerpts from the oral arguments. 
--More about the Voting Rights Act

Scalia’s latest: Unethical or merely appalling?

We’ve all seen it before:

• Justice Antonin Scalia makes comments that are appalling in their racial insensitivity.
• Justice Antonin Scalia skates right up to the line of ethical impropriety.

But this time Scalia managed to do both at once, while discussing the Voting Rights Act in remarks at the University of California Washington Center this week.

Justice Antonin Scalia

Even as Scalia and his colleagues consider a challenge to a key provision of that law, Scalia chose this forum to elaborate on a claim he first raised during oral arguments, when he called the law a “perpetuation of racial entitlement.”  This week, he echoed that claim, calling the law an “embedded” form of “racial preferment.”

To support his claim he declared that that it was unfair for his current home state, Virginia, to have to clear changes to its voting laws with the Justice Department in advance when other states did not.  He suggested that there could not possibly be a racial bias problem in Virginia since that state once elected a black governor and most other states haven’t.  He neglected to mention the state’s far more recent efforts to suppress the votes of the poor and people of color through restrictive voter I.D. laws.  (We have more on the need for the Voting Rights Act on our website here.)

But most disturbing was this.  According to The Wall Street Journal, Scalia said that:

merely holding minority status should not insulate one from majoritarian policy choices. “Child abusers” are a minority, for instance, but they should not receive special protection as a result, he said.

Presumably, Scalia thought this hypothetical would bolster his efforts to deny equal protection to a whole slew of Americans – such as women, the mentally ill, and the LGBT community.

There is one crucial difference between making such callous, insensitive remarks during oral argument and making such callous, insensitive remarks elsewhere while the case is pending: judicial ethics.

We have long argued that the Code of Conduct for U.S. Judges, which applies to all other federal judges, should apply to Supreme Court Justices as well.  It was the topic of this brief AFJ documentary:


But since it does not, Scalia is off the hook no matter what.

If Scalia’s remarks had been uttered by a judge on whom the code is binding, they may very well have been in violation of the code – and at the very least would come right up to the edge of what is permissible.  The code says:

A judge should not make public comment on the merits of a matter pending or impending in any court. [Canon 3A(6).]

Although the code makes an exception for “scholarly presentations made for purposes of legal education,” the commentary to this part of the code advises judges commenting on cases from their own court to “take particular care so that the comment does not denigrate public confidence in the judiciary’s integrity and impartiality … .”

That’s because the code prohibits conduct that gives even the appearance of impropriety. [Canon 2A.] 

This is not the first time Justice Scalia’s behavior has raised questions about ethics.

• At the same event this week, Justice Scalia indicated his likely vote on another pending case involving the powers of the Federal Communications Commission. 
• In 2011, Justices Scalia and Thomas spoke at a fundraising event for the ultra-conservative Federalist Society.  While federal judges subject to the Code of Conduct can speak to any organization they want, the code bars them from speaking at fundraisers.  Justice Samuel Alito spoke at the same event last year. 
• As we noted in our report on Supreme Court ethics, Justices Scalia and Thomas reportedly have each attended at least one invitation-only retreat hosted by Charles and David Koch, co-owners of Koch Industries, the second largest private corporation in the United States.  The purpose of the Koch retreats is overtly political.

Whether Scalia crossed the line this time or just came very, very close, with each passing year it becomes more urgent to make Scalia, Thomas, Alito and all the other Justices subject to the code of conduct.

Shelby County v. Holder, or, The more things change, the more they stay the same

THE COURT IN ACTION: We all know what Justice Scalia said about "racial entitlement."  Now, hear also how Solicitor General Donald Verrilli responds:



By Gilda Daniels, Associate Professor of Law at University of Baltimore School of Law

One of the key discussions in today’s Shelby County v. Holder United States Supreme Court argument, a case challenging the constitutionality of Section 5 of the Voting Rights Act, was whether the “covered jurisdictions” still warrant federal oversight for voting changes.  Section 5 of the Voting Rights Act of 1965 requires “covered jurisdictions” (nine whole states-primarily in the South- and parts of seven others) to obtain approval from the federal government before it can implement any voting changes.  In the Shelby case, one of those jurisdictions argued that the coverage formula was outdated and that Congress should not have used it when it reauthorized Section 5 in 2006.  Bert Rein, who argued the case on behalf of Shelby County, started his argument stating “the South has changed.”  However, as Justice Sotomayor pointed out to Rein, “…some portions of the South have changed, your county pretty much hasn’t.”

Shelby County and other Section 5 covered jurisdictions, in spite of a changing South, continue to have more voting rights infractions than other parts of the country.  While Rein argued that the South no longer had poll taxes and literacy tests and thus should not be subject to Section 5, at least four justices seemed to disagree, arguing that “under any formula (standard) that Congress would devise Alabama would be covered”; so, would most, if not all of its counterparts.  At least four other justices seemed to argue that if other states have worse records in voter turnout and registration then “why wasn’t it incumbent on Congress ..to make a new determination of coverage?  Maybe the whole country should be covered,” Justice Alito pondered.

What is interesting to me is the assumption that because there are other wrongdoers that are not covered, Alabama, and states like it, should not be either.  Essentially, they obliquely argue that if those other states get to have worse records than Alabama on voter registration and turnout then the federal government should not “punish” it with Section 5.  It is perplexing to me how this is a viable states’ rights argument.  States do not have a right to act badly or to discriminate, particularly in the fundamental right of voting.  Congress has the constitutional power to propose and enforce legislation that protects citizens from discrimination.  Interestingly enough, Shelby County neither addressed nor attempted to defend its Section 5 record of noncompliance and discriminatory voting practices at any point during the argument.  It couldn’t.  It merely argued that “the South had changed.”

Everyone agrees that the South, indeed, has changed and progress in the area of voting has been made.  However, this progress has been made because of, not in spite of, the Voting Rights Act.  Section 5 is a preventative measure that deters discrimination and ensures that jurisdictions do not implement laws that discriminate against its minority citizens.  Remedial measures, like Section 5, even if considered extraordinary, are needed to protect the extraordinary democratic right to vote.  Section 5 is needed and covered jurisdictions require oversight to ensure that minority voting rights are not infringed upon. While some states may indeed have worse records, the protection that Section 5 provides in covered jurisdictions, like Alabama, is warranted. The assertion that some states are worse is not a rationale to eliminate Section 5; it provides a strong argument for its extension.

Finally, some justices had concerns that Section 5’s oversight would last “in perpetuity.”  Justice Scalia asserted that Section 5 served as a “perpetuation of racial entitlement(s)." Voting is an American entitlement and if Congress deemed it necessary to provide oversight in covered jurisdictions to protect that entitlement, I would think it very difficult for the Supreme Court to say otherwise, even if things have changed. 

Gilda R. Daniels is Associate Professor of Law at the University of Baltimore School of Law and the Former Deputy Chief of the US Department of Justice Voting Section.

Shelby County and NAMUNDO: The Continuing Importance of Section 5

THE COURT IN ACTION: In this excerpt from the oral argument, Bert Rein, counsel for Shelby County, is questioned  closely by Justices Sotomayor, Kagan, and Kennedy.  He gets a friendlier question from Justice Alito.

by William Yeomans, Fellow in Law and Government at American University Washington College of Law

Today’s argument drove home the extent to which four Republican-appointed members of the Court are driven by ideology to eliminate our nation’s most effective protection for minority voting rights.  The big question remaining is whether the fifth Republican-appointed Justice, Anthony Kennedy, is now ready to join the crusade.  In 2009, in NAMUDNO v. Holder, Justice Kennedy apparently was not prepared to add to his legacy the uncomfortable headline that he provided the decisive vote to strike down the preclearance requirement of the Voting Rights Act.  Based on today’s argument, he remains the Act’s best hope.

The central contention of the case is that the Act’s formula for determining which jurisdictions must preclear their election changes with the Attorney General or a three-judge court is outdated, and whether Congress exceeded its power when it reauthorized it in 2006.  A decision striking down the formula would render the preclearance requirement unenforceable.

The argument opened with Justice Sotomayor, the Act’s most vocal defender, asking Bert Rein, Shelby County’s counsel, why the Court should even entertain his case.  The case was filed as a facial challenge to the formula for determining which jurisdictions would be subjected to preclearance.  It does not involve a request for preclearance of an election change or a request that Shelby County be released from the preclearance requirement based on its record.  Justice Sotomayor, joined by Justices Kagan and Ginsburg, questioned why Alabama (the entire state of Alabama, including Shelby County, is covered) should be allowed to challenge the Act’s coverage formula.  They noted its continuing record of recent discrimination and opined that Alabama would be covered under any formula Congress adopted.  It was, therefore, unclear how Shelby County was harmed by the coverage formula.  To Rein’s response that the case did not involve the record of his client, but presented a facial challenge, Justice Sotomayor was quick to note that the Court disfavors facial challenges.  Most importantly, Justice Kennedy joined in the questioning on this topic and seemed interested.  Indeed, the fact that the case was filed as a facial challenge seeking a declaratory judgment on behalf of a jurisdiction with a recent history of discrimination in voting should have made it a poor candidate for a grant of Supreme Court review.  It remains possible that Justice Kennedy will have second thoughts about using this weak vehicle to undermine the Voting Rights Act.

Much of today’s argument focused on what the Court should make of the massive 15,000 page record Congress compiled in 2006.  Conservatives on the Court appear to think – quite mistakenly – that it is their task to evaluate and weigh the evidence from scratch.  Rather, it is the role of Congress to undertake legislative fact-finding and to make judgments based on the evidence.  Particularly when Congress is making predictive judgments about what is needed to overcome a history of racial discrimination, the Court should step back.  When Congress addresses race or voting pursuant to its power under the post-civil war constitutional amendments, it acts at the peak of its power.

Bizarrely, Justice Scalia turned this relationship on its head, suggesting that the Act is suspect because members of Congress voted overwhelmingly for it in the belief that it would be politically detrimental for them to vote against it.  Putting aside the difficulty of reconciling Justice Scalia’s eagerness to delve into the heads of legislators with his rigidly textualist approach to interpretation, he expressed an astonishingly disdainful view of the legislative process.  Members of Congress regularly vote for or against measures because of the political consequences of their votes.  We expect them to do that.  This sounds suspiciously like an allegation that members of Congress represented the views of their constituents.

Two things made the arguments of conservative Justices today even less persuasive.  First, since NAMUDNO, the covered jurisdictions have engaged in an orgy of vote suppression activity.  In many instances, only Section 5 has prevented massive disenfranchisement of minority voters.  Courts relied on Section 5 to block Photo ID laws passed by Texas and South Carolina from going into effect for the 2012 election.

The South Carolina experience powerfully demonstrated the continuing impact of Section 5.  During the court challenge, South Carolina offered a reinterpretation of the law to allow voters without ID to file an affidavit and to vote, which led the court to block it for 2012, but say that it could go into effect in the future.  This is precisely the kind of outcome that the preclearance requirement contemplates.

A court also relied on Section 5 to block Texas’s redistricting of its congressional, state senate, and state house seats, finding intentional discrimination.  Another court blocked Florida’s cutbacks in early voting, including its elimination of Sunday voting, both of which were disproportionately used by minority voters.  Importantly, Alabama and Mississippi have also passed photo ID laws that have yet to win Section 5 preclearance.  In short, the covered jurisdictions have behaved badly since NAMUDNO.  Republican leaders have acknowledged the Party’s deficit with minority voters.  Too often, however, rather than try to win minority voters with policy, they have sought to purge them from the electorate.  In the process, they have shown the country – and the Court, if it can see past its ideological blinders – that Congress’s judgment that Section 5 is still necessary is more than just rational or congruent and proportional – it is compelled.

The covered jurisdictions did all of this despite the deterrent effect of Section 5.  The predictive judgment of Congress in 2006 that it was too soon to release the covered jurisdictions from federal supervision was clearly correct.  And it’s exactly the kind of predictive judgment to which the Court owes considerable deference.

The second factor undermining the conservatives on the Court is the record of jurisdictions bailing out of Section 5 coverage.  The bailout record is a complete response to arguments that the coverage formula is out of date.

The Act allows jurisdictions that have maintained a clean record for ten years to file suit seeking to bail out of coverage, which means they will be relieved of the preclearance requirement.  In NAMUDNO, the Court interpreted the language of the act to allow even the smallest governmental units to sue to escape coverage.  Since NAMUDNO, 128 governmental units have won bail out in 21 successful court actions.  More are in the pipeline.  No jurisdiction that has sued for bailout has lost.  There could be no more perfect mechanism for fine-tuning the Act’s coverage.

During the argument, Solicitor General Verrilli relied on the bailout provision as a further basis for rejecting the facial challenge.  He argued that jurisdictions that were not properly included in the preclearance requirement generally could bail out.  If there were some jurisdictions that were improperly included but did not qualify for bail out, they could pursue more traditional as-applied challenges to coverage.

After today’s argument and after the extensive briefing of the case, the Court has before it compelling arguments in support of the Voting Rights Act.  If the Court strikes down the preclearance requirement, its action will be the culmination of decades of court-packing by Republican presidents who consciously selected Justices who were hostile to civil rights remedies.  In doing so, the Court will further the interests of a conservative base struggling desperately not to lose its power to an emerging diverse voting majority.  To do so, it will have to turn its back on decades of law and express disdain for Congress.  Surely, that is not the legacy Justice Kennedy envisions.

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

Scrapping Section 4(b) of the Voting Rights Act: Not the compromise that we want

THE COURT IN ACTION: Responding to questions from Justices Ginsburg and Kennedy, Solicitor General Donald Verrilli explains why Section 2 of the Voting Rights Act, which allows the government to sue after a change in election procedures already is in effect, is not sufficient.



By Franita Tolson, Betty T. Ferguson Professor of Voting Rights at Florida State University College of Law

After the oral argument in Shelby County v. Holder, it appears that the Voting Rights Act, in its current form, is in peril.  I make this observation with some reservation, as we found ourselves in a similar predicament in 2009 after the arguments in NAMUDNO v. Holder.  Yet Congress never heeded the Supreme Court’s warnings about the constitutionality of the Act, placing the current challenge in a different posture than the litigation four years ago.

In NAMUDNO, the Court expressed extreme reservations about Section 5 of the Act, and argued that its selective coverage discriminates between the equally sovereign states.  Section 5’s preclearance mechanism ensures that those states that historically have been the worst offenders, as determined by the coverage formula in Section 4(b), will not abridge the right to vote on the basis of race. To avoid discriminatory changes, Section 5 requires these jurisdictions to preclear their proposed election laws with the federal government before the laws can go into effect.  Section 4(b)’s coverage formula was heavily criticized during the argument today because it has not changed in four decades: those jurisdictions that used a test or device as a prerequisite to voting as of November 1964, and had less than 50 percent voter registration or turnout in the 1964 Presidential election are subject to preclearance.  Later reauthorizations of the Voting Rights Act extended Section 4(b) to the 1968 and 1972 Presidential elections, but the end result is that 9 states, mostly in the deep South, are covered based on a 40- year-old formula.

Sadly, it is this reservation about treating similarly situated states differently, based on an “outdated” formula, that might signal danger for at least part of the Voting Rights Act.  Like the 2009 NAMUDNO decision, perhaps the Court will come to a compromise, but instead of “saving” the statute as it did four years ago through creative statutory interpretation, the compromise could invalidate the coverage formula rather than the preclearance regime.  This “compromise” would allow the Court to save face by upholding Section 5, the crown jewel of a landmark civil rights statute; it would placate the more conservative wing of the Court gunning for the demise of the preclearance regime; and it would force Congress to update the coverage formula.  Justice Kennedy, likely the critical swing vote, seemed open to the idea of invalidating Section 4(b) during the oral argument, noting that “if Congress is going to single out separate states…it should do it by name.”  Although invalidating the coverage formula would, in essence, preserve the preclearance formula of Section 5, the practical result would be to render Section 5 nugatory because there would be no formula in place to determine which jurisdictions are subject to coverage.

Such a “compromise” also ignores that Section 4(b) is constitutionally permitted.  In 1966, the Court upheld this provision, despite its over and under-inclusiveness, because the record of discrimination present in covered jurisdictions justified the distinction that Congress had drawn between the states.  Congress, in renewing the Act in 2006, also compiled a record of discrimination in covered jurisdictions, yet such evidence did not seem to persuade conservative justices during today’s arguments.  Justice Scalia, at one point, referred to Section 5 as a “racial entitlement” rather than, as Justice Sotomayor pointedly reminded him, a remedy designed to protect the right to vote.

Framing Section 5 as a “racial entitlement” rather than a remedy, however, is an attempt to emphasize that covered and non-covered jurisdictions are similar in important respects, notably in voter registration and turnout, yet are treated differently under the Act.  What this argument overlooks is that covered jurisdictions continue to violate the terms of the Voting Rights Act in margins that far exceed that of non-covered jurisdictions.  For this reason, the focus on the coverage formula as the source of constitutional concern is somewhat misleading.  Congress imposed the formula as a shorthand way to capture the worst offenders, and if the incidence of Section 2 litigation in covered jurisdictions is any indication, Section 4(b) still does a good job of singling out the troublemakers.  As Justice Kagan observed during the oral argument today, under any formula that Congress could devise, Shelby County would still be covered under Section 5.

Because of its pervasive record of Section 5 violations, Shelby County may very well be the wrong plaintiff to challenge the coverage formula of Section 4(b).  Nevertheless, the arguments today revealed that Section 4(b) is very much on the table as a potential casualty should the justices try to strike a bargain in order to preserve Section 5.  The sense that one is getting a bargain is illusory; in all practical terms, the end of Section 4(b) means the end of preclearance.   

Franita Tolson is the Betty T. Ferguson Professor of Voting Rights at the Florida State University College of Law.

Shelby County v. Holder and the Second-Guessing of Congress

THE COURT IN ACTION: In this excerpt from the oral argument, Debo Adegbile of the NAACP Legal Defense and Educational Fund explains why, even when a case is won under Section 2 of the Voting Rights Act, enforcing the victory often requires Section 5.  He is questioned by Justice Scalia.


by Bertrall Ross, Assistant Professor of Law at UC Berkeley School of Law

Are the temporary provisions of the Voting Rights Act a relic of the civil rights era? When Congress reauthorized the statute in 2006 for another 25 years, were the legislators simply living in the past, unwilling and perhaps unable to accept that things have changed?  Is the Supreme Court needed to educate legislators that things have indeed changed despite the voluminous and comprehensive record that Congress has compiled suggesting otherwise?  After oral argument in Shelby County v. Holder, the conservative justices’ answers to each of these questions seemed to be yes.  If a majority of the justices subscribe to this view when the Supreme Court issues its opinion, the overturning of the temporary provisions of the VRA will be a stunning repudiation of Congress and the long-standing model of deference to congressional exercises of power to enforce the Fourteenth and Fifteenth Amendments. 

In the recent past, when Congress enforced the Fourteenth Amendment to provide minorities with statutory protection against discrimination, the Court deferred.  So long as the ends were legitimate and the means were plainly adapted to that end, the Court would not second-guess congressional determinations.  This model of judicial deference applied at a time when racial and other minorities were generally considered politically marginalized.  Such deference reflected judicial trust of congressional judgments that particular groups needed protection from state actors.  When upholding the constitutionality of the Voting Rights Act in 1966 as an appropriate exercise of congressional power, the Court acknowledged the unusual and far-reaching nature of the Act, but it nonetheless deferred to congressional determinations based on a comprehensive and voluminous record that the temporary provisions were needed to achieve voter equality in particular jurisdictions.  Thirty years later, the Supreme Court described the Voting Rights Act of 1965 as a model example of congressional enforcement authority for which much deference was properly given. 

What has changed?  It seems that for at least some of the conservative justices, racial minorities are no longer the politically marginalized group of the past.  Rather, to paraphrase the concurring opinion of three conservative justices in a recent race discrimination case, racial minorities have evolved into a politically important constituency that politicians and presumably Congress needs to please – a minority constituency that is purportedly even more powerful than the majority.  Despite Congress’s compilation of an expansive record reflecting the continuing need for the temporary provisions of the VRA in the jurisdictions to which it applies, the tenor of oral argument suggests that it is unlikely that a conservatives on the Court will defer to Congress.  For Justice Scalia, this Act is simply perpetuating a “racial entitlement,” as he put it at oral argument, an entitlement that the nearly unanimous Congress that re-authorized the VRA presumably could not resist giving because of the political power of racial minorities.  Overlooked in this justification for judicial second-guessing of Congress is robust evidence that racial minorities continue to be subordinated in politics and society.       

If the conservative argument is allowed to carry the day, it will represent a critical step backwards not only for voter equality, but for racial equality, congressional authority, and the institutional legitimacy of the Supreme Court.  Any federal statute advancing the protection of racial and other minorities will be subject to close scrutiny with a presumption that it is simply the perpetuation of a group entitlement, driven by those minorities’ supposed political power.  Near unanimous congressional agreement on the need for the statute combined with a voluminous and comprehensive record supporting this assessment will not be enough to overcome this presumption.  We will edge close to a return to when judicial second-guessing of congressional judgments was the norm and a principal inhibitor of progress.  During the New Deal era of the 1930s, a non-deferential Supreme Court stood as an obstacle to economic progress on the basis of a laissez-faire conception of economics that came at the cost of its institutional legitimacy.   Now, it looks like a similarly non-deferential Supreme Court, relying on a conception of politics in which minorities are more politically powerful than the majority, may decide to stand as an obstacle to continued progress on racial equality.

Bertrall Ross is an Assistant Professor of Law and an Executive Committee Member of the Thelton E. Henderson Center for Social Justice at the UC Berkeley School of Law. 

The whole world is watching

Archbishop Desmond Tutu, 21 other worldwide human rights leaders tell Supreme Court: Uphold the Voting Rights Act

One of the most memorable moments during the long struggle against apartheid in South Africa came in May, 1994, on the day Nelson Mandela was inaugurated as President. Standing beside Mr. Mandela, another hero of that struggle, Archbishop Desmond Tutu proclaimed, "We are free today! We are free today! All of us, black and white together!"
 

Archbishop Desmond Tutu

Nearly 20 years later, Archbishop Tutu is speaking out for one of the most fundamental freedoms in the United States: the right to vote. He has joined with 21 other prominent human rights leaders from around the world to sign an open letter to the Supreme Court. They are urging the Court to uphold a key provision of the Voting Rights Act. As they note in the letter: "America's leadership in voting rights has been a beacon of hope for millions around the world who have made their own sacrifices for freedom and democracy."

Alliance for Justice is honored to join with the Institute for Policy Studies and the NAACP in sending the letter to the Supreme Court and distributing it to the public. Our joint statement, and a link to the full letter, follow:

WASHINGTON, D.C., February 25, 2012 - In an unprecedented show of international interest in a Supreme Court case, 22 of the world's most prominent human rights leaders want the justices to know: The whole world is watching. This week the United States Supreme Court hears a challenge to the Voting Rights Act of 1965, a landmark American civil rights law.

Those leaders, from 22 countries on five continents, including South African Archbishop and Nobel Peace Prize winner Desmond Tutu, sent an open letter to the Court urging the justices to uphold a key provision of the Voting Rights Act. The letter was released prior to the Court’s oral arguments by the Institute for Policy Studies, Alliance for Justice and the NAACP.

"Beyond your borders, the global march toward justice will suffer grievous harm should you surrender to those who seek to disenfranchise American citizens," the letter says. "We urge you to heed the United States Congress' judgment that continued federal enforcement of the voting rights guaranty is appropriate and necessary."

"On Wednesday, the whole world will once again be watching as the Supreme Court deliberates over one of the most fundamental rights for people everywhere: the right of all people to vote," said John Cavanagh, Director of the Institute for Policy Studies.

"The Voting Rights Act is the keystone in the arch of protection for people of color in the United States," said Nan Aron, President of Alliance for Justice. "This letter makes clear that the law also is a beacon of hope for people around the world. We call on this Court to recognize that the Voting Rights Act is as necessary now as it was on the day it became law."

"Voting is the cornerstone of any democracy," said Benjamin Todd Jealous, President and CEO of the NAACP, "We live in a world of ever-increasing diversity. Every nation, including the United States, must seek the best means of protecting the rights of each minority, regardless of the size of that group. Section 5 of the Voting Rights Act has proven to be the best tool for ensuring all Americans are full and equal members of our democracy. We must make sure it is always available to ensure the integrity of our elections."

"The possibility that the conservative wing of the Supreme Court will eviscerate the 1965 Voting Rights Act threatens the ability of Americans of color to freely participate in their government, erasing years of struggle and the sacrifices of many," said Julian Bond, chairman emeritus of the NAACP. "The United States would lose whatever standing we have gained in recent years, and our country would be held in ridicule worldwide."

The court is hearing a challenge to Section 5 of the Act. This part of the law requires certain jurisdictions with a history of discrimination to obtain advance approval before changing voting rules or procedures. Covered jurisdictions that demonstrate a record of applying their voting rules fairly and equitably can apply to be exempted from this provision.

The letter cited recent efforts to restrict voting during the American presidential election, noting that "the widespread efforts to enact new voting restrictions, with known and intended discriminatory effects, confirms that America still has need of flexible federal power to halt new attempts at disenfranchisement."

The letter was signed by human rights leaders from:
Algeria, Argentina, Brazil, Colombia, Costa Rica, Egypt, El Salvador, India, Italy, Kenya, Liberia, Mexico, Nigeria, Peru, Republic of Congo, Sierra Leone, Spain, South Africa, Sweden, Switzerland, Uganda, United Kingdom.

• Read the full letter
• Read more about why we still need the Voting Rights Act