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Home > Blog > All > preclearance

preclearance

  • March 1, 2013

    Sifting Oral Argument in Voting Rights Act Case, at Least we Know Where Scalia Stands

    by Jeremy Leaming

    Following oral argument in Shelby County v. Holder several court-watchers, to the consternation of some, wrote that the Voting Rights Act’s integral enforcement provision, Section 5, looked to be on the chopping block largely based on courtroom theatrics.

    But many of those court-watchers, such as The New York Times’ Adam Liptak, noted that it was indeed risky to make  predications based only on oral argument, while nonetheless pointing out that in 2009 in Northwest Austin Municipal Utility District v. Holder, Chief Justice John Roberts and other members of the high court’s right-wing bloc made it rather clear that Congress should revisit the formula used to determine what states are covered by Section 5.

    As Liptak noted, Congress did not revisit the formula. And what happened during oral argument earlier this week? You had the Court’s right-wing justices grousing over the same things they did in Northwest. So it doesn’t take much of a leap to figure Justice Anthony Kennedy, who asked how much longer must Alabama remain under U.S. “trusteeship” is ready to join Roberts, and Justices Antonin Scalia, Clarence Thomas and Samuel Alito in striking Section 5, by ending the use of the formula. (Section 5 requires states and localities, mostly in the South, to get “preclearance” of any proposed changes to their voting laws and procedures to ensure that they do not have the effect of discriminating against voters. The Constitution’s 14th and 15th Amendments provide Congress the power to take appropriate action to ensure that states do not deprive people of liberty or discriminate against voters because of their race.)

    The Brennan Center’s Myrna Pérez writes that the “arguments themselves do not provide much predictive value,” and that little was discussed during oral argument “over what exactly Congress needed to do differently to have appropriately fulfilled its duties.”

    ACS President Caroline Fredrickson also told TPM’s Sahil Kapur that the “silver lining is ultimately oral arguments are rarely a predictor of outcomes of the case.”

    Yep, lots of folks were predicating Kennedy would save the day for the Obama administration’s landmark health care reform law the Affordable Care Act. And of course we know how that turned out.

    As noted on this blog numerous times, Section 5 is the power behind the Voting Rights Act and Congress has the constitutional authority to combat racial discrimination in voting. Section 5, reauthorized in 2006, has helped prevent states bent on suppressing the votes of minorities from doing so, including Alabama, South Carolina, Texas and Florida. Without Section 5, those states will have great leeway in pursuing schemes to dilute the minority vote.

     

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    Tags:
    Supreme Court, Voting rights, Racial justice, Constitutional Interpretation and Change, Democracy and Voting, Equality and Liberty, Adam Liptak, Caroline Fredrickson, Justice Anthony Kennedy, Justice Antonin Scalia, Myrna Perez, preclearance, Section 5, Shelby County v. Holder, The Brennan Center, Voting Rights Act of 1965
  • February 22, 2013

    Congress’ Constitutional Power to End Racial Discrimination in Voting

    by Jeremy Leaming

    Once again the U.S. Supreme Court will grapple with the constitutionality of Section 5, the strongest enforcement provision of the landmark Voting Rights Act of 1965, when Alabama officials take to the high court on Feb. 27 to argue that the provision is outdated and subverts state sovereignty.

    Noted in this post, groups arguing in favor of Section 5 say Alabama officials ignore persistent violations of Section 5 in trying to persuade a Court controlled by a right-wing majority that it is now time to do away with the law’s integral enforcement measure. Several of the groups point out that as early as 2010 officials in Shelby County, Ala., a largely white enclave outside Birmingham, were working to alter voting districts to dilute the minority vote. Section 5 applies to several states and municipalities, mostly in the South, with intense histories of racial discrimination in voting. It requires those jurisdictions to obtain “preclearance” from the Department of Justice or a federal court in Washington before making any changes to their voting rules and procedures.

    But since its enactment in 1965 a string of covered jurisdictions has lodged lawsuits against Section 5. As noted by David H. Gans and Elizabeth B. Wydra in a new ACS Issue Brief on the case, Shelby County v. Holder, the Supreme Court has upheld the constitutionality of Section 5 on four occasions – 1966, 1973, 1980, and 1999 – “recognizing that the Act falls squarely within congressional power to enforce the constitutional ban on racial discrimination in voting.”

    Several other groups have lodged friend-of-the-court briefs with the Supreme Court providing recent examples of racial discrimination in voting in the covered jurisdictions and arguing that Section 5 is an appropriate congressional action to enforce the promise of both the Fourteenth and Fifteenth Amendments. (The Fourteenth Amendment bars states from depriving people of liberty and the Fifteenth Amendment prohibits states from discriminating against voters because of their race.)

    During a recent ACS panel discussion on the Shelby County case Armand Derfner, a renowned attorney who has argued on behalf of voters in the covered jurisdictions against racial discrimination in voting, dismissed arguments that Section 5 has outlived its usefulness. (Video of the discussion is here.)

     

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    Tags:
    Election law, Supreme Court, Voting rights, Racial justice, Constitutional Interpretation and Change, Democracy and Voting, Armand Derfner, preclearance, Section 5, Shelby County v. Holder, Voting Rights Act of 1965
  • February 15, 2013

    Serial Racial Discrimination in Voting that Persists in VRA’s Covered Jurisdictions

    by Jeremy Leaming

    Alabama officials will take to the U.S. Supreme Court on Feb. 27 to try to gut the Voting Rights Act’s integral enforcement provision, Section 5. And their argument, what the Constitutional Accountability Center’s Simon Lazarus calls the “goofy gripe,” rests largely on the claims that racial discrimination in voting happens everywhere and so why pick on certain states.

    Lazarus notes, however, that just last year the Voting Rights prime enforcement provision was employed by the Justice Department to scuttle “vote suppression techniques familiar to all who followed the 2012 campaign: stringent voter ID laws, curtailed early voting opportunities, and discriminatorily rigged redistricting plans.”

    But the Alabama officials’ arguments are more than goofy, they’re ludicrous. There’s a reason why Section 5 remains relevant, because tawdry, bigoted attempts to deny minorities the right to vote remain the most intense in specific states and localities.

    First let’s start with some basics. The Constitution’s Fourteenth and Fifteenth Amendments bar the states from depriving citizens of liberty and from denying the right to vote to minorities. Moreover, both amendments include sections granting Congress, not the courts, the power to craft appropriate legislation to enforce the promise of both Amendments.

    When Congress enacted the Voting Rights Act it determined that some states and localities, mostly in the South, had much deeper and more intense histories of oppressing African Americans, including keeping them away from the polls. So Congress included a rather strong enforcement mechanism, Section 5, which would require those covered jurisdictions to obtain “preclearance” for any changes to their voting procedures from the Department of Justice or a federal court in Washington, D.C. In 2006 Congress in bipartisan fashion overwhelmingly reauthorized Section 5 for another 25 years, after amassing a voluminous record showing that the covered jurisdictions by far remained the most fertile ground for racial discrimination in voting. The evidence was that although progress had been made in the South, there remained a stubborn bigotry resulting in ongoing efforts to suppress the minority vote.

    During an ACS panel discussion this week on the case challenging Section 5, Shelby County v. Holder, several panelists noted stories from Texas, Alabama and other covered jurisdictions of “serial” efforts to suppress or dilute the vote of minorities. For example in 2008 Alabama officials, as NAACP LDF’s Ryan P. Haygood recounted, sought to implement a discriminatory redistricting plan to drastically reduce the sole majority black district in the state by creating hundreds of annexations, without obtaining preclearance. When the Justice Department did review the redistricting plan, it was rejected as discriminatory. Nonetheless the officials held the election with the discriminatory redistricting scheme and the DOJ lodged a Section 5 enforcement action undoing the election and requiring another election to be held. (LDF is representing voters in Alabama in the Shelby County case; for more on Section 5 and Shelby County see ACS’s Voting Rights Resources page.) Video of panel discussion is below or here.

     

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    Tags:
    Election law, Redistricting, Supreme Court, Other courts, Voting rights, Racial justice, Constitutional Interpretation and Change, Democracy and Voting, Equality and Liberty, Nina Perales, preclearance, Ryan Haygood, Section 5, Shelby County v. Holder, Simon Lazarus, Voting Rights Act
  • February 4, 2013

    Bipartisan Congressional Group Urges High Court to Uphold Voting Rights Act

    by Jeremy Leaming

    In 2006 when Congress overwhelmingly reauthorized Section 5, the major enforcement provision of the Voting Rights Act, it did so “at the height of its powers in regulating the intersecting areas of voting, race, and political rights,” a bipartisan group of congressmen state in a brief lodged in Shelby County v. Holder.

    On Feb. 27, the U.S. Supreme Court will hear oral argument in the Shelby County case. Section 5 requires certain states and localities with deep histories of racial discrimination in voting to obtain “preclearance” from the Department of Justice or a federal court in Washington, D.C. before making changes to voting procedures. Officials in Shelby County, Ala., lodged the lawsuit arguing that Section 5 is no longer needed. The officials, with the support of the state’s attorney general, argue that racial discrimination in voting is largely a thing of the past and therefore state officials should not need the federal government’s approval of changes to voting procedures.

    As noted on this blog, the NAACP Legal Defense & Educational Fund (LDF), representing some voters in Alabama, is battling those claims in defense of the landmark law. (Other civil liberties groups are also urging the Supreme Court to uphold Section 5. To see some briefs and more information about the VRA, visit ACS’s Voting Rights Act Resource Page.)

    The friend-of-the-court brief filed on behalf of Reps. F. James Sensenbrenner Jr. (R-Wis.), John Conyers Jr. (D-Mich.), Jerrold Nadler (D-N.Y.), Steve Chabot (R-Ohio), Robert C. “Bobby” Scott (D-V.A.) and Melvin Watt (D-N.C.), also urges the high court to show judicial restraint and uphold Section 5. The group of House Judiciary Committee members served as leadership during the 2006 reauthorization of Section 5. The group details the process of creating a voluminous congressional record that supported the ongoing need for the VRA’s Section 5.

    Rep. Sensenbrenner in a press statement announcing the brief called the VRA “the crown jewel of the civil rights laws” that should be “ardently” defended. Rep. Conyers said Section 5 “remains critical to enforcing the constitutional rights of all voters, especially for voters in jurisdictions with a history of discrimination.”

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    Tags:
    Election law, Supreme Court, Voting rights, Constitutional Interpretation and Change, Democracy and Voting, Congress, covered jurisdictions, NAACP Legal Defense & Educational Fund, preclearance, racial discrimination in voting, Rep. Bobby Scott, Rep. James Sensenbrenner, Rep. Jerrold Nadler, Rep. Melvin Watt, Rep. Steve Chabot, Section 5, U.S. Rep. John Conyers, Voting Rights Act of 1965, VRA
  • January 31, 2013

    A Resounding Call to Save the Voting Rights Act

    by Jeremy Leaming

    Alabama officials seeking to gut the landmark Voting Rights Act of 1965 claim racial discrimination in voting is no longer a problem in their state. Specifically officials in Shelby County, Ala., a largely white county, are urging the U.S. Supreme Court to find Section 5, the law’s major enforcement provision, unconstitutional.

    The NAACP Legal Defense & Education Fund (LDF), representing voters in Alabama, is waging a vigorous defense of what many consider one of the nation’s most important and effective civil rights law. In its recently filed brief, the group urges the high court to uphold Section of 5 arguing that “racial discrimination in voting is ‘not ancient history.’” The Court will hear oral argument in Shelby County v. Holder on Feb. 27.  

    Section 5 requires certain states and localities, mostly in the South, with long histories of racial discrimination in voting to obtain “preclearance” from the Department of Justice or a federal court in Washington, D.C. for changes to elections procedures. LDF, in its brief, says Section 5 “remains essential to safeguard our democracy from racial discrimination. The record documents hundreds of examples of persistent unconstitutional efforts by covered States and localities to deny or abridge the right to vote on account of race, including widespread efforts to circumvent remedies imposed for prior VRA violations, which were only blocked by Section 5.” (Click picture to enlarge to show covered jurisdictions of Section 5.)

    Earlier this month, Alabama Attorney General Luther Strange filed a brief in the Shelby County case supporting the County officials. The state still grapples with “race relations issues, but they are the same kind of issues every state currently is endeavoring to solve,” Strange argues in his brief.

    LDF’s brief states there is ample evidence “of ongoing voting discrimination in Alabama specifically, and the covered jurisdictions generally, exceeds, by many orders of magnitude, that in the non-covered jurisdictions. Shelby County studiously avoids this evidence; instead, it selectively points to individual jurisdictions outside of Alabama that it asserts should not be covered.”

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    Tags:
    Supreme Court, Voting rights, Democracy and Voting, Alabama, Attorney General Luther Strange, NAACP LDF, preclearance, Section 5, Shelby County v. Holder, Voting Rights Act of 1965
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