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.

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

GUEST BLOG: Does Congress have authority to set voter qualifications for federal elections?

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

In Arizona v. Inter Tribal Council of Arizona, the U.S. Supreme Court held the National Voter Registration Act (“NVRA”) preempted Arizona’s Proposition 200, which required documentary proof of U.S. citizenship to register to vote in federal elections.  The NVRA, which provides that all states must “accept and use” a uniform federal form to register individuals to vote, requires only that individuals attest to U.S. citizenship, but does not require documentary proof.

Prof. Franita Tolson

On the surface, the Court’s decision appears to vindicate federal authority by recognizing Congress’s broad power under the Elections Clause to regulate federal elections.  Pursuant to the Clause, states may choose the “Times, Places and Manner of holding Elections for Senators and Representatives,” but this authority is subject to Congress’s power to “at any time make or alter such Regulations.”  According to the Court, Congress’s authority under the Elections Clause is not subject to the usual presumption against preemption, where the Court assumes that Congress does not intend to preempt state authority in enacting legislation absent explicit language to the contrary.  Rather, Congress’s authority to “make or alter” state legislation pursuant to the Elections Clause is, by definition, an intent to preempt.  Thus, Arizona’s additional requirement for voter registration must give way to the NVRA’s less onerous registration regime for federal elections.

However, buried in this apparent victory for federal authority is language that should alarm voting rights groups while comforting the most ardent advocates of states’ rights.  Although the Court rejected Arizona’s argument that the federal form would not allow the state to collect the information it deemed necessary to assess citizenship status, the Court did so while agreeing with Arizona that the states, and not Congress, have plenary authority over prescribing voting qualifications.  According to the Court, the Elections Clause, which is limited to setting the “Times, Places, and Manner of holding elections,” confers no authority on Congress “to make or alter” voter qualifications.  Instead, these qualifications are linked to the state franchise by various provisions of the Constitution, including Article I, Section 2, Clause 1 (providing that electors for the House of Representatives “shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature”) and the Seventeenth Amendment (the same provision, but for the election of senators).  As commentators such as Rick Hasen, Marty Lederman, and Spencer Overton have observed, this narrow view of congressional authority appears to call into question several significant pieces of federal legislation, and it limits Congress’s ability to address state felon disenfranchisement laws.  In addition, it casts doubt on the validity of the Court’s 1970 decision in Oregon v. Mitchell, which held that Congress could lower the voting age to 18 in federal, but not state, elections.

These are not the only landmines lurking in the decision.  Indeed, the most troubling aspect of the majority opinion is that it appears to tell a compelling narrative about the scope of congressional authority over elections, a narrative based firmly in the constitutional text.  In reality, this narrative is woefully incomplete.  It is true, as the Court contends, that Congress’s authority over voter qualifications for state and federal elections is not plenary, but the Fourteenth and Fifteenth Amendments significantly expanded congressional authority over voter qualifications in both state and federal elections.  In particular, section 2 of the Fourteenth Amendment allows Congress to reduce a state’s representation in the House of Representatives for abridging the right to vote in state and federal elections for “any reason except for participation in rebellion, or other crime,” and section 1 of the Fifteenth Amendment prohibits states from abridging the right to vote on the basis of race.  Congress has significant authority to alter voter qualifications pursuant to their enforcement authority under these Amendments, both of which give Congress the “power to enforce, by appropriate legislation, the provisions of this article.”  In some circumstances, requiring additional documentary evidence of citizenship, contrary to federal requirements, could be characterized as an “abridgment” of the right to vote under section 2 of the Fourteenth Amendment and therefore subject to regulation under section 5 of that Amendment.  Similarly, adducing additional evidence of citizenship could have a disproportionate impact on certain minority groups, leading Congress to use its authority under section 2 of the Fifteenth Amendment to bar this additional requirement.

In Arizona v. Inter Tribal Council, the Court rightly recognizes that the area of voting and elections is unique, but completely misses that the story of the Elections Clause has to be told in light of the Reconstruction Amendments and expanded congressional authority over voter qualifications.                

Franita Tolson is the Betty T. Ferguson Professor of Voting Rights at the Florida State University College of Law.  Read her previous posts for Justice Watch

AFJ Responds to Supreme Court decision in Arizona "motor voter" case

Alliance for Justice President Nan Aron released the following statement today in response to the Supreme Court decision in Arizona et. al. v. Inter Tribal Council of Arizona, et. al.:

We are pleased that the majority recognizes the will of Congress in providing a simple and efficient means of registering to vote that removes barriers for Americans across the country in reaching the polls.   The majority wisely prohibited Arizona from imposing new burdens on the right to vote that are inconsistent with clear federal law.

Key aspects of this case are discussed, with excerpts from the oral arguments here.

Alliance for Justice is a national association of over 100 organizations, representing a broad array of groups committed to progressive values and the creation of an equitable, just, and free society. Through our justice programs, we lead the progressive community in the fight for a fair judiciary, and through our advocacy programs, we help nonprofits and foundations to realize their advocacy potential.

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. 

Elections: ‘We have to fix that’

This post originally appeared on AFJ's Bolder Advocacy Blog.

Last night, the many months of political and ballot measure campaigning came to a close.  Millions of Americans, from all walks of life, came together to participate in the democratic process and exercise their right to vote.  Regardless of where you fall on the political spectrum, I think we can all agree on last night’s winner:  the voters.  Despite reports of long lines and even longer wait times, voters across the country confronted these obstacles and made a point to make their voices heard.

While volunteering with the Lawyers’ Committee on Civil Rights election protection hotline, 866-OUR-VOTE, I witnessed the unnecessary stress placed on voters’ first-hand.  The issues ranged from defective voting machines to untrained poll workers who were unfamiliar with their states voter ID requirements.  As President Obama said last night in reference to long lines at the polls, “we have to fix that.”

In the coming months, we look forward to working with organizations and policymakers to protect the right to vote and encourage sensible reforms to the election process that empower, not discourage, American voters.  In the meantime, let’s give a round of applause to the voters, especially the displaced voters of New Jersey, who voted in large numbers despite the devastating impact of Hurricane Sandy.

"A disaster for our democracy"

Senate holds hearing on Citizens United and threats to American voting rights

On Wednesday, the Senate Judiciary Committee held a hearing concerning the 2010 Supreme Court decision in Citizens United – which Senator Jon Tester (D-MT) described as a “disaster for our democracy” – and the threat to voting rights posed by voter suppression laws in states across the country.

Senator Tester should know: the Supreme Court relied on Citizens United to invalidate, without even a court hearing, a century-old Montana state law called the Corrupt Practices Act that brought greater transparency and accountability to campaign finance in Montana. To explain the significance behind Montana’s law and Citizens United, Senator Tester introduced Anthony Johnstone, Assistant Professor at the University of Montana School of Law and former Montana solicitor. Professor Johnstone began by highlighting the recent proliferation of voter ID laws, which have been widely denounced as efforts to disenfranchise poor and minority voters. He then connected Citizens United, the Voting Rights Act of 1965, and voter suppression efforts. While Citizens United and the decisions which followed it have led wealthy and powerful interests to dominate political speech through unlimited spending, assaults on the Voting Rights Act threaten efforts to remove barriers to voting and ensure that minority citizens, specifically African Americans in the South, are able to exercise their right to vote.



Professor Anthony Johnstone
University of Montana

Professor Johnstone argued that the combination of Citizens United, which opened the floodgates to corporate spending on “independent” political communications, and the 2008 Supreme Court decision in Crawford v. Marion County Election Board, which upheld a voter ID law in Indiana, creates a “double standard” in the Court’s approach to the political rights of different groups in America. While the Supreme Court made it more difficult for eligible minorities and disenfranchised citizens to vote, it expanded the spending powers of wealthy corporations.

One of the most compelling and forceful arguments was made by Elisabeth MacNamara, President of the League of Women Voters of the United States. MacNamara testified that voter ID laws restrict eligible voters from participating in their own government, and that these laws disproportionately affect minorities, the elderly, young voters, veterans, the disabled, and women. The result is a loss of confidence in the institutions of American government. Participation, MacNamara argued, is “key” to democracy, and thus restricting registration is an existential threat. Without broad participation, and thus without the confidence that we are truly a government run by the people, the legitimacy of government actions may be questioned. This is especially so, argued MacNamara, when considering that little evidence exists that voter fraud is a threat to our democracy, while there is evidence that voter ID laws prevent many eligible voters from registering.



Elisabeth MacNamara
League of Women Voters

An important – and insidious – aspect of the restrictive voting laws passed in many states is the effect on voter registration drives, particularly by non-profit organizations. In Florida, for example, a fine of $1,000 would be imposed on any volunteer who does not return a voter registration form within 48 hours. This heavy burden forced non-profits to stop voter registration out of fear of heavy fines. This is especially troubling for minority voters, since a much higher proportion of minority voters are registered during voter registration drives, likely because of greater difficulty in accessing registration materials. Fortunately, since a federal judge in Florida prohibited enforcement of this part of the state’s law, non-profits have been able to continue their voter registration efforts. However, after a year of the law’s existence, significant damage to these efforts has been done. The Florida saga underscores the importance of an administration willing to enforce the Voting Rights Act and judges who understand the fundamental nature of all citizens’ right to vote.

As Senator Sheldon Whitehouse (D-RI) noted, considering Montana’s Corrupt Practices Act is now invalidated, we will soon see which approach is more effective in curbing corruption: allowing unlimited corporate political expenditures and restricting voter registration in the name of preventing fraud, or growing the voter base and limiting corporate political expenditures. As Professor Johnstone testified, we now live under the “Citizens United Court,” of unrestrained rights for corporations and “downgraded” rights for the rest of us.

Rick Scott Not Dead, Voter Fraud Not a Threat

Justice Anthony Kennedy last week stayed a Ninth Circuit Court of Appeals ruling that new electoral registration requirements in Arizona are prohibited under federal law. Voters in Arizona, a laboratory for anti-immigrant policies, passed Proposition 200 in 2004, requiring voters to offer proof of citizenship. Opponents immediately identified the proposal as anti-immigrant and a threat to Latino civil rights.

On Wednesday, supporters of Proposition 200 asked Justice Kennedy to stop the Ninth Circuit ruling from coming into effect, at least until the end of this election year (Justice Kennedy is tasked with handling emergency motions from the Ninth Circuit). The Supreme Court has addressed the measure before, allowing it to remain in place through the 2006 midterm elections. But the Court did so without deciding whether or not the requirement was barred by the 1993 Voting Rights Act (VRA). Now that the Ninth Circuit has declared the measure void under the VRA, Justice Kennedy is requesting additional briefs on the matter. The Court may soon have an opportunity to clarify the legality of Arizona’s voting registration requirements. Such a decision would necessarily impact voters in states like Florida, Virginia, and Texas, all of which have passed similar voter ID laws.

Voter ID laws targeted at minority communities have been top policy priorities for certain state legislatures since 2011. Florida Governor Rick Scott is pushing a voter purge, claiming it is necessary to remove non-citizens from voter lists. Although Scott claims that state officials are unlikely to purge legitimate voters, the governor himself was forced to cast a provisional ballot in 2006 when Florida officials mistakenly thought he was deceased. In Wisconsin, where a recent voter ID law has not yet taken effect, many voters were nonetheless required to produce identification during the recent gubernatorial recall election.

The D.C. Circuit Court of Appeals recently upheld the constitutionality of a key provision of the Voting Rights Act, based on the documented efforts to disenfranchise and intimidate minority voters in many places across the country. Because that case, Shelby County v. Holder, squarely addresses the constitutionality of the VRA, the Supreme Court is likely to hear an appeal from the D.C. Circuit’s decision during its 2012-13 term.

In the meantime, given the expedited briefing schedule set by Justice Kennedy, the Court’s review of the Ninth Circuit ruling on Arizona’s voter ID provision could affect voting in the current election cycle in Arizona, and potentially in other jurisdictions with similar voter ID provisions.

While we await word from the Court, it is worth remembering that, as Florida ACLU Executive Director Howard Simon pointed out, there are more shark attacks in Florida than cases of voter fraud.

A Victory for Voting Rights

The Court of Appeals for the D.C. Circuit ruled today that section 5 of the Voting Rights Act remains constitutional. The case, Shelby County, Alabama v. Holder, is an important victory for advocates of fair voting practices. In siding with the attorney general, the court eloquently and powerfully bolstered the rights of Shelby County citizens to vote in elections free from racial discrimination.

Section 5 of the Voting Rights Act, originally passed in 1965 and reauthorized in 1970, 1975, 1982, and 2006, requires six states and numerous local jurisdictions to seek “preclearance” for any changes to their electoral system because of past voting discrimination on the basis of race. For example, last year the U.S. Department of Justice refused clearance of both South Carolina and Texas’s Voter ID laws under section 5. Both states are bringing suit to challenge the justice department’s actions. Texas is directly challenging the constitutionality of section 5.

Section 2 of the Voting Rights Act, which prohibits any state from adopting electoral procedures that undermine minority voting rights, is also litigated with some frequency, but it is section 5 that has become a lightning rod for conservatives and states’ rights advocates, because it mandates additional scrutiny and oversight of particular states’ electoral activities. There are numerous section 5 suits currently percolating through the lower courts, undoubtedly because the Supreme Court’s conservative majority indicated in its 2009 decision in Northwest Austin Municipal Utility District Co. v. Holder that it would be receptive to such challenges. Earlier this year, while refraining from ruling on the constitutionality of section 5, the Supreme Court issued a terse unsigned opinion directing a district court in San Antonio to give greater deference to racially gerrymandered electoral maps drawn by the Texas state legislature.

Next stop: the Supreme Court?

When Shelby County appeals the decision to the Supreme Court, as it inevitably will, the case could become the vehicle that the conservative majority uses to strike down section 5 of the Voting Rights Act as unconstitutional. If the Supreme Court ultimately reverses the D.C. Circuit’s decision in this case and rules section 5 unconstitutional, it will be through no fault of the lower court. Judge Tatel, writing for the two-judge majority, has taken a careful look at the legislative record and produced a carefully reasoned and thoughtful opinion.

The opinion begins by acknowledging the Supreme Court’s skepticism about the continued constitutionality of section 5: “The Supreme Court warned that the burdens imposed by section 5 may no longer be justified by current needs and that its geographic coverage may no longer sufficiently relate to the problem it targets.” In other words, the question before the court in this case was whether “Section 5 remains a ‘congruent and proportional remedy’ to the 21st century problem of voting discrimination in covered jurisdictions,” and whether “Congress exceed[ed] its constitutional authority when it reauthorized section 5” in 2006.
After carefully reviewing the legislative record, the D.C. Circuit’s answer to the first question is yes -- section 5 remains congruent and proportional -- and its answer to the second question is no -- Congress did not exceed its authority.

In deferring to Congress’ reasoned judgment, the court noted that "Congress drew reasonable conclusions from the extensive evidence it gathered and acted pursuant to the Fourteenth and Fifteenth Amendments, which entrust Congress with ensuring that the right to vote--surely among the most important guarantees of political liberty in the Constitution--is not abridged on account of race.” In evaluating the congruence and proportionality of section 5, the court underscored the existence of the Act’s “bailout” provisions, which were liberalized in 1982 to allow any jurisdiction with a “clean” voting rights record over the previous 10 years to be relieved of its section 5 preclearance obligations. These provisions render section 5 relatively flexible and responsive, capable of adjustment as the circumstances on the ground change, yet strong and firm to protect voters when the circumstances remain sadly the same.

In the end, the opinion stands as a testament to the importance of judicial restraint. The court states at the outset, “Although our examination of the record will be probing, we remain bound by fundamental principles of judicial restraint. Time and time again the Supreme Court has emphasized that Congress’s laws are entitled to a ‘presumption of validity.’” And in affirming the constitutionality of section 5, the court concluded, “we owe much deference to the considered judgment of the People’s elected representatives.” We can only hope that the Supreme Court exercises commensurate judicial restraint in this case, and various other cases currently before it.

The Court Chips Away at the Voting Rights Act

Guest post by Professor Bertrall Ross

The headline from the Texas redistricting cases is that the Texas Republican Party won.  But the true victors from the Supreme Court ruling in the consolidated cases are the jurisdictions covered under Section 5 of the Voting Rights Act – the jurisdictions required to obtain approval for districting changes.

The unanimous holding that the federal court in San Antonio had not given enough deference to the state legislative districting determinations was rather unremarkable and mostly expected.  The federal court had essentially constructed a new districting arrangement out of whole cloth based on considerations that the legislature is ordinarily deemed best suited to make.  It is also rather unremarkable that the Court imported a preliminary injunction standard that requires federal courts to consider the likelihood of success on the merits prior to making districting changes in response to alleged violations of Section 2 of the Voting Rights Act and the Constitution.  As with any attempt to enjoin preliminarily a government act, the burden should be on the parties to show that they will likely succeed on the claim before the court stops the government from acting.  Ultimately, on this matter, the victory of the Texas GOP may be rendered incomplete, as the San Antonio court will probably impose an interim plan that is less favorable to the Republican Party than the state’s plan would be, since the court has indicated that the latter likely contains violations of both Section 2 and the Constitution. 

Supreme Court Sides with Texas in Redistricting Dispute

Last week, the Supreme Court issued a unanimous unsigned opinion (.pdf download) in the cases consolidated as Perry v. Perez, rejecting the interim electoral maps drawn by a three-judge district court panel in San Antonio for failing to defer adequately to the legislature’s choices. The decision is seen as a win for the Texas GOP.

2010 Census data revealed that a population explosion and demographic change in Texas had left the state’s electoral maps in violation of the Constitution’s one-person, one-vote mandate and in need of being redrawn. Under Section 5 of the Voting Rights Act of 1965, Texas is one of a number of jurisdictions that are required to seek “preclearance” for any changes to their electoral system because of past voting discrimination on the basis of race. Accordingly, Texas submitted its redrawn maps to a three-judge district court panel in DC, which has not yet ruled on preclearance.

Advocates suggest that the Republican-dominated Texas legislature redrew the maps in a way that dilutes African-American and Latino voting strength. Thus, voters and advocacy groups filed suit in federal court in San Antonio, alleging that the changes violate Section 2 of the Voting Rights Act, which prohibits any state from adopting electoral procedures that undermine minority voting rights, as well as the Fourteenth Amendment. In view of the impending election season, the San Antonio court drew interim maps to be used until the preclearance issue could be resolved. Texas appealed to the Supreme Court, arguing that the district court had erred in drawing new maps and that the legislatively-drawn maps should be used as interim maps instead.

In its decision, the Supreme Court reiterated that a new electoral map cannot be used until it has been precleared, while also noting that the old electoral map in this case could not be used because it violated the one-person, one-vote constitutional mandate. As a result, the Supreme Court concluded that the district court in San Antonio was correct to create an interim electoral map for the 2012 election.

However, the Supreme Court found that the San Antonio court should have given greater deference to the legislature’s preferences rather than “substitut[ing] its own concept of ‘the collective public good’ for the Texas Legislature’s determination of which policies serve ‘the interests of the citizens of Texas.’” In essence, the district court should not have modified the legislature’s maps except where there are alleged legal problems with those maps that have a likelihood of success on the merits.

With regard to Section 5, the Supreme Court instructed the district court not to prejudge the preclearance proceedings on the merits, instead “taking guidance from a State’s policy judgment unless they reflect aspects of the state plan that stand a reasonable probability of failing to gain § 5 preclearance.”  It remains to be seen how district courts will apply this opaque formulation. In the meantime, it seems likely that the maps the San Antonio court must design on remand for use in 2012 will bear much greater resemblance to the legislature’s maps, vote dilution and all.

Those concerned with voting rights should take note that Justice Thomas penned a concurrence in which he reiterated his belief – previously noted in his dissent in Northwest Austin Municipal Util. Dist. No. One v. Holder (2009) – that Section 5 of the Voting Rights Act is unconstitutional.

By rejecting the court-drawn maps and ordering greater deference to the legislature’s maps, the Court’s ruling will likely have the effect of diluting minority voting rights in the 2012 elections.

Shortly after issuing its decision in this case, the Supreme Court issued a short order (.pdf download) staying the order of a three-judge district court panel in West Virginia pending appeal. The Charleston court had held that “zero variance” in population is required to satisfy the one-person, one-vote constitutional mandate. As a result of the Supreme Court’s stay, West Virginia can proceed with its elections using a legislatively-drawn map. 

The Preclearance Flaw

Guest post by Professor Bertrall Ross

The consolidated cases of Perry v. Perez, Perry v. Perez, and Perry v. Davis (the Texas redistricting cases) highlight for the first time an important flaw in the preclearance mechanism under Section 5 of the Voting Rights Act that is central to the case.  This flaw arose because Congress in 1965 did not foresee preclearance being applied to the mandatory change of decennial reapportionment. In fact, congressional focus at the time of enactment in 1965 was on deterring jurisdictions with a history of voting discrimination (covered jurisdictions) from making discretionary changes to their voting laws that had the purpose or would have the effect of denying the vote on account of race.  Congressional concerns about vote dilution would only arise later. 

The covered jurisdictions under the preclearance mechanism as applied to discretionary voting changes had the option of maintaining the status quo with respect to their voting laws or seeking preclearance for any electoral changes that they chose to make.  And as originally conceived, when the covered jurisdiction decided to make an electoral change and proceed down the preclearance route, any costs associated with the delay of obtaining preclearance would be borne by the covered jurisdiction because it would have to retain the prior law until the new law was approved.

Faced with this burden of delay, the covered jurisdiction could decide whether to proceed down any of the three routes designated in the law to obtain preclearance. First, it could seek preclearance from the Department of Justice, which proceeds in a more expedited fashion.  Alternatively, it could seek preclearance from the Department of Justice concurrently with a declaratory judgment action in the District Court for the District of Columbia. This would also provide expedited review while the declaratory action wound its way through the more deliberate judicial channels.  Finally, the covered jurisdiction could proceed down the slow route and seek preclearance exclusively through a declaratory judgment action in the District Court for the District of Columbia.  When the voting change was discretionary, minority voters generally did not suffer any consequences from the delay since it could not go into effect until it was approved.

The flaw in the Section 5 pre-clearance mechanism arises from situations, such as reapportionment, where covered jurisdictions are required to make voting changes. The constitutional requirement of one-person, one-vote mandates that states reapportion to create electoral districts of equal population at least every ten years. In addition to the mandatory nature of the change, there are important time constraints associated with it. Covered jurisdictions ordinarily have to reapportion between the time it receives the census numbers and the next election. In the case of Texas, this meant that it had about a year to reapportion and obtain preclearance for the change.

Supreme Court to Hear Texas Voting-Rights Case

On Monday, the Supreme Court will hear argument in the consolidated cases of Perry v. Perez, Perry v. Perez, and Perry v. Davis, in which the voting rights of the African-American and Latino citizens of Texas are at stake.

The state of Texas has experienced tremendous population growth and demographic change in recent years. The 2010 Census revealed that the state population had grown by more than one fifth – or 4.2 million – over the previous decade. A majority of that growth came from the Latino population, which increased by 2.8 million. As a result, the state electoral maps required a major overhaul, both to bring the state legislative districts in line with the U.S. Constitution’s one-person, one-vote provision, and to apportion fairly the electoral districts for the U.S. House of Representatives, in which Texas gained 4 seats as a result of the population increase.

Under the Voting Rights Act of 1965, Texas is one of a number of jurisdictions that are required to seek “preclearance” for any changes to their electoral system because of their history of voting discrimination on the basis of race. Under the act a jurisdiction may seek preclearance from the Attorney General, or from a three-judge panel of the District Court for the District of DC. In this case, Texas chose to submit its newly drawn electoral maps to the DC District Court for approval, even though the path through the Attorney General is generally more expeditious.

While Texas’ preclearance application was pending before the federal court in DC, voters and advocacy groups filed a series of suits in federal court, alleging that the changes violate the Fourteenth Amendment, as well as a section of the Voting Rights Act which prohibits any state from adopting electoral procedures that undermine minority voting rights. The federal court found that it was not free to determine the legality of the legislature’s maps, as that issue was pending in the preclearance action before another court. However, the court also found that the legislatively-drawn maps could not go into effect without being precleared by the DC District Court. Accordingly, in view of the impending 2012 election season, the Texas court designed interim maps to be used until the preclearance issue is resolved.

The question before the Supreme Court is whether the federal court erred by creating such interim maps, and whether the court was required to adopt the legislature’s maps as the interim maps, despite the fact that they have not yet received the required preclearance. Additionally, in its reply brief, Texas has raised questions about the constitutionality of a section of the Voting Rights Act for the first time in this litigation.

If the Supreme Court sides with Texas, the voting rights of minority citizens will be significantly impaired. At best, if the Court approves the use of the legislatively-drawn maps while preclearance is pending, the Court will be allowing Texas to dilute minority voting rights during the 2012 elections. Even more devastating to minority rights, the Court could render a final decision that the legislatively-drawn maps are legitimate and do not violate the Voting Rights Act or the Constitution.

However, it is conceivable that the Court could go even further, and invalidate Section 5 of the Voting Rights Act altogether, even though that possibility was never suggested in this litigation until Texas submitted its reply brief. These harms are a matter of degree, but in any of the above scenarios, the voting rights of African-American and Latino citizens will suffer greatly if the Court sides with Texas.

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Respect the right of DC residents to legislate on local issues

On Tuesday, December 1, the Religious Freedom and Civil Marriage Equality Amendment Act of 2009 passed in the DC City Council with a vote of 11-2. After the bill is signed into law by Mayor Fenty, it will embark upon a 30 day congressional review period. Alliance for Justice recently added its name to a letter to Congress circulated by DC Vote that calls on the House to respect the right of DC residents to legislate on local issues such as marriage equality.

2008 Voter Suppression Hangs on Supreme Court Decision

MyDD.com: "In the new year, a case that will determine the state of American voting rights will be considered by the Supreme Court. Called "the most important voting rights case since Bush v. Gore" by the Brennan Center for Justice, Indiana's voter ID case (Crawford v. Marion County Elections Board) may throw a monkey wrench into getting eligible voters to cast ballots in the 2008 presidential election. The constitutionality of the nation's most restrictive voter identification law is under scrutiny by the country's highest court and more than two dozen scholars, advocates, and voting rights organizations have filed amicus briefs challenging the law in the hopes of expanding access to the ballot while still maintaining election integrity.

Powered by unfounded allegations of voter fraud - an issue often conflated with election administration issues, such as list maintenance problems and voter caging efforts - voter ID laws like the one being challenged, are a solution in search of a problem. They end up effectively inhibiting voters rather than encouraging them."

-Read the article