ACSblog symposium on Shelby County v. Holder

  • February 26, 2013
    Guest Post

    by Gabriel J. Chin, Professor of Law, University of California Davis School of Law. This post is part of an ACSblog symposium on Shelby County v. Holder.

    Tomorrow, the Court will hear argument in Shelby County, Alabama v. Holder, which raises the question of the continuing validity of the preclearance requirement of Section 5 of the Voting Rights Act.

    Under Section 5, electoral changes in covered jurisdictions are suspended until the Attorney General or the U.S. District Court for the District of Columbia preclears them by determining that they have neither the purpose nor effect of denying or abridging the right to vote on account of race or color.  The specific issue is whether circumstances in the covered jurisdictions have changed so dramatically that Section 5 is no longer warranted; the Court suggested as much in their 2009 decision in Northwest Austin Municipal Utility District Number One (NAMUDNO) v. Holder

    I strongly disagree, and believe that a facial challenge is improper because Section 5 is clearly permissible in federal elections.  As important and ominous as Shelby County is, there is a larger question about the Court’s reasoning which has the potential to undermine many other laws and constitutional principles protecting civil rights. 

    The Court’s logic in NAMUDNO seems to be this: There was a problem with discrimination against racial minorities at the ballot box, particularly in certain jurisdictions.  Section 5 and other parts of the Voting Rights Act largely fixed that problem.  Because covered jurisdictions are no longer disproportionately proposing electoral rules or districting maps that have the purpose or effect of disadvantaging minority voters, Section 5 may have outlived its usefulness.  Laws must be necessary and proper to solve problems, not non-problems, or former problems. (Many of these facts are doubtful, but I am concerned here primarily with the Court’s logic).

  • February 26, 2013
    Guest Post

    by Justin Levitt. Professor Levitt, on loan from Loyola Law School, Los Angeles, is a visiting associate professor of law at Yale Law School. He focuses on constitutional law and the law of the political process. This post is part of an ACSblog symposium on Shelby County v. Holder.

    On Wednesday, the Supreme Court will hear Shelby County v. Holder, a challenge to part of the Voting Rights Act.  The case touches on enormously important, vigorously contested, issues: federalism, race, voting rights, political power, Congressional authority.  Amidst all of this big stuff, the Court must make sure it keeps its eye on the heart of the case.

    The fight is about a particular part of the Voting Rights Act, with special rules for much of the South (and a few other jurisdictions).  It requires these states (and counties, and towns) to run any election-related changes by the Department of Justice or a federal court, to make sure that the changes won’t leave minorities politically worse off. 

    The process of DOJ or court review is called “preclearance” – and in 1966, and again in 1980, the Supreme Court firmly validated the concept for the parts of the country with the most troubled voting rights history.  Preclearance is special medicine, which the Court has already approved for the sickest patients.

    In 2006, Congress essentially renewed the prescription as is. And the plaintiffs now challenging the law say that the patient list is out of date. It’s a 1965 take, they say, on a 21st century world: the list is no longer sufficiently tailored to where the problems are.

    So who is on the list, needing federal approval for new election rules? It starts with a formula: areas where less than half of the eligible population registered or voted in the presidential elections of the 60s. These are the parts of the country where democracy was broken. We talk about majority rule: in these areas, a majority wasn’t even able to participate.

    Shelby County, Alabama, was on the list in the 60s. And it’s still on the list now. But that doesn’t mean the list is static.  Quite the contrary: change was built into coverage from the get-go. 

  • February 26, 2013
    Guest Post


    by Steven D. Schwinn, associate professor of law at the John Marshall Law School in Chicago and an editor of the Constitutional Law Prof Blog. This post is part of an ACSblog symposium on Shelby County v. Holder.

    When the Supreme Court takes up the Voting Rights Act case this week, Shelby County v. Holder, the Justices will focus on this question: Whether Congress had authority under the Fourteenth and Fifteenth Amendments to require certain jurisdictions to gain federal preclearance before making any changes to their election laws.  But lurking in the background of the Question Presented is a curious nod to federalism.  Thus the Court will ask if Congress exceeded its authority, then did it violate the Tenth Amendment and Article IV—provisions that, according to the petitioner, protect states’ rights.

    We might wonder where this federalism concern comes from.  After all, neither the Tenth Amendment nor Article IV limits federal authority because of states’ rights.  Neither provision says anything about the substantive scope of federal authority; and neither provision obviously grants a claim of states’ rights.  Instead, they simply outline the necessary relationship between the federal government and the states in a federal system like ours.  These provisions are, at most, a blueprint for federalism.  They add nothing to the core question of congressional authority, the real issue in the case.

  • February 26, 2013
    Guest Post

    by Ryan P. Haygood, Director of LDF’s Political Participation Group, and part of LDF’s litigation team in Shelby County, Alabama v. Holder. LDF Special Counsel Debo P. Adegbile will present oral argument on behalf of defendant-intervenors in this case, including LDF’s clients, five Black ministers and Councilman Ernest Montgomery. In 2006, the City of Calera, which lies within Shelby County, enacted a discriminatory redistricting plan that was rejected by the Department of Justice under Section 5, leading to the loss of the city’s sole Black councilman, Mr. Montgomery.  Because of Section 5, however, the Department of Justice required Calera to redraw its electoral boundaries in a nondiscriminatory manner and conduct another election in which Mr. Montgomery regained his seat. This post is part of an ACSblog symposium on Shelby County v. Holder.


    The United States Supreme Court will hear oral argument tomorrow in Shelby County, Alabama v. Holder, one of the most important voting rights cases of our generation. 

    In the case, Shelby County seeks to tear out the heart of the Voting Rights Act, Section 5. The Voting Rights Act is widely regarded as the most successful piece of civil rights legislation -- if not any legislation -- ever passed. It is for this reason that the Supreme Court, through an unbroken line of cases, has four times over four decades upheld the constitutionality of the Voting Rights Act.

    At oral argument, the Court will focus on two key questions: (1) whether voting discrimination persists to a degree that Section 5 is still needed; and, (2) whether that discrimination remains concentrated in the places covered by Section 5.

    The answer to both queries is yes for two reasons.

    First, in reauthorizing Section 5 in 2006, Congress identified the areas of the country with the worst histories of voting discrimination -- those places where persistent and adaptive discrimination has continued from the past through to the present and, which has proven particularly difficult to dislodge over time through case-by-case litigation. 

    During the 2006 reauthorization review, Congress assembled a virtually unprecedented legislative record that closely examined the evidence to determine whether Section 5 is still needed. This analysis was careful, detailed, and included a wide range of views.  Congress received more testimony and information about the voting experience, both in and outside the places covered by Section 5, than it had during any of the previous reauthorizations. Over 10 months in 2005-2006, the House and Senate Judiciary Committees held a combined 21 hearings, received testimony from more than 90 witnesses—including state and federal officials, litigators, scholars, and private citizens—both for and against reauthorization, and compiled a 15,000 page record.  Representative James Sensenbrenner, then-Chair of the House Judiciary Committee, described the record as “one of the most extensive considerations of any piece of legislation that the United States Congress has dealt with in the 27 ½ years” that he had served in Congress.

     

  • February 26, 2013
    Guest Post


    by Gilda R. Daniels, Associate Professor at the University of Baltimore School of Law and former Deputy Chief of the United States Department of Justice, Voting Section. This post is part of an ACSblog symposium on Shelby County v. Holder.

    It would certainly be ironic if Alabama, the state that gave us the Voting Rights Act in 1965 because of its opposition to providing African American citizens the ability to register and vote, would also serve as the state that would end a key part of the Act.  It could happen.  It shouldn’t, if the Supreme Court recognizes the significance of ensuring that history does not repeat itself.

    On February 27, the United States Supreme Court will hear Shelby County, Alabama v. Holder, a challenge to Section 5 of the Voting Rights Act.  The Voting Rights Acthas two primary provisions: Section 2 is permanent and prohibits race discrimination in voting and Section 5, which is one of the temporary provisions, requires periodic Congressional reauthorization.   What Section 5 does is very important.  It is both prophylactic and preventative and requires “covered jurisdictions” to “preclear” voting changes before they can implement them.  These changes can range from a redistricting to the mundane moving of a polling place across the street.  Regardless, the VRA requires the jurisdiction to submit the change to either the Attorney General of the United States or the United States District Court for the District of Columbia for approval prior to implementation. Alabama is one of the originally covered Section 5 jurisdictions.

    In March 1965, more than 600 marchers embarked on a journey to walk from Selma to Montgomery, Alabama to spotlight the belligerence and entrenchment of voting disenfranchisement for African Americans.  On Sunday, March 7, the marchers barely reached the Edmund Pettus Bridge before law enforcement officials beat and tear gassed the young people and children who bravely attempted the march.   After “Bloody Sunday,” Congress passed the Voting Rights Act of 1965 to address the widespread state sponsored shenanigans surrounding the right to vote, such as,  poll taxes, literacy tests, closure of registration sites, acts and threats of violence surrounding voter registration and participation that remained rampant throughout much of the country,  especially in the South.   President Lyndon B. Johnson proclaimed the Voting Rights Act of 1965, “one of the most monumental laws in the entirehistory of American freedom.”   In August 1965, less than five months after the Edmund Pettus incident, he signed the Voting Rights Act.