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Racial justice

February 26, 2013
Why Landmark Civil Rights Law Remains Viable
by Jeremy Leaming

Professor Justin Levitt says Section 5 of the Voting Rights Act provides elasticity – that is covered jurisdictions complaining about federal intrusions have a way to “bail-out,” by showing that their proposed changes to voting laws would not discriminate against minority voters. And Prof. Gabriel J. Chin says the Supreme Court, when it considers the constitutionality of Section 5 in Shelby County v. Holder, should refrain from overreaching, allowing Congress to do its job, which in part entails enforcing the Fifteenth Amendment of the Constitution.

See their posts and others in the ACSblog symposium on the Shelby County case, which the justices will hear oral argument in tomorrow.

Janai S. Nelson, a professor of law at St. John’s University School of Law, in a post for Reuters also provides some excellent insight into the viability of Section 5. (Section 5 requires certain states and towns, mostly in the South, with long histories of racial discrimination in voting to obtain “preclearance” for proposed changes to their elections laws and procedures from the Department of Justice or a federal court in Washington.)

She notes that a major aim of Section 5 centers on ensuring that “new voting laws will not ‘retrogress’ – or harm – minority voting rights.”

And as many have noted, during the 2012 elections the Department of Justice successfully employed Section 5 to prevent discriminatory elections laws from going into effect in several covered jurisdictions, such as Texas, Florida and South Carolina. (See the ACS Voting Rights Resources page for more information on this case and the landmark law.)

Section 5, Nelson continues, has “changed the discourse around race in backrooms and in courtrooms by requiring that electoral decision-makers are not only aware of race but also are conscious of the racial harm. Indeed, Section 5’s anti-regression standard directs jurisdictions subject to oversight either to advance or, at a minimum, protect minority voting rights.”

As noted here, Alabama officials are arguing against Section 5 partly by saying that racial discrimination is no greater in Alabama than in other states and therefore it should be dumped or greatly reworked to not burden Alabama or the other covered jurisdictions. The NAACP LDF, which is representing Alabama voters in Shelby County, says Alabama officials are turning a blind eye to the persistent efforts to harm minority voters in the state – like rewriting voting districts to dilute the minority vote, while giving more power to white voters.

Nelson also adds that progress made in the covered jurisdictions should not lead one to conclude that Section 5 has done its job and is now an unconstitutional tool the federal government is unnecessarily wielding.

The fact, she writes, “that the record of discrimination in covered jurisdictions has diminished is evidence that Section 5 is working – not that it has exhausted its usefulness.”

Nelson, and other staunch supporters of the Voting Rights Act, is nailing it – Section 5 is working and the Supreme Court’s right-wing bloc, if it could keep its ideological leanings in check, would not block Congress’s constitutional authority to ensure the promise of both Fourteenth and Fifteenth Amendments.

Tags:
Election law, Redistricting, Supreme Court, Voting rights, Racial justice, Constitutional Interpretation and Change, Democracy and Voting, Equality and Liberty, Gaberial J. Chin, Janai S. Nelson, Justin Levitt, Section 5, Shelby County v. Holder, Voting Rights Act
February 26, 2013
Justices Should Support, Not Hinder Congressional Work to Protect Voting Rights
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.

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Election law, Redistricting, Supreme Court, Voting rights, Racial justice, Constitutional Interpretation and Change, Democracy and Voting, Equality and Liberty, ACSblog symposium on Shelby County v. Holder, Alabama, covered jurisdictions, Guest Post, LDF, Ryan P. Haygood, Shelby County v. Holder, Voting Rights Act of 1965, VRA
February 25, 2013
Voting Rights Act Keeping Democracy Healthy
Guest Post
by Edward A. Hailes, Jr. is Managing Director and General Counsel for Advancement Project. He formerly served as the General Counsel for the U. S. Commission on Civil Rights where he directed its investigation into voting irregularities in Florida during the 2000 presidential election. This post is part of an ACSblog symposium on Shelby County v. Holder.

In 2006, the United States Congress reauthorized the Voting Rights Act of 1965 putting certain jurisdictions under the microscope once again to determine whether those jurisdictions were fully cured from the infection of past and present discriminatory voting practices. These ugly practices prevented and continue to prevent ordinary citizens of color from having equal access in our democracy. Congress conducted similar examinations in 1970, 1975, and 1982, each time determining, on a bipartisan basis that protecting the rights of voters in these jurisdictions required ongoing scrutiny and action.

The 2006 examination was particularly extensive and illuminating. The record of review entailed 15,000 pages and testimony from more than 50 witnesses who examined the body of evidence from both sides of the issue. Based on this thorough, objective review, Congress concluded that, despite progress toward achieving political equality for minority voters in the covered jurisdictions, “40 years has not been a sufficient amount of time to eliminate the vestiges of discrimination following nearly 100 years of disregard for the dictates of the 15th Amendment and to ensure that the right of all citizens to vote is protected as guaranteed by the Constitution.” Congress also found that without continuation of Section 5 [which is the very heart of the Voting Rights Act] voters of color “will be deprived of the opportunity to exercise their right to vote, or will have their votes diluted, undermining the significant gains made by minorities in the last 40 years.”

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Election law, Supreme Court, Voting rights, Racial justice, Constitutional Interpretation and Change, Democracy and Voting, Equality and Liberty, ACSblog symposium on Shelby County v. Holder, Congress, Edward A. Hailes, Guest Post, Jr., Section 5, Shelby County v. Holder, voter suppression, Voting Rights Act of 1965
February 25, 2013
Civil Rights Leader Says Forces Still Trampling Voting Rights
by Jeremy Leaming

One of the themes running through our blog symposium on the constitutional challenge to the Voting Rights Act’s integral enforcement provision, Section 5, centers on the fallacious claim that racial discrimination in voting has largely been eradicated so it’s time to significantly scale back one of the nation’s greatest civil rights laws.

For example, West Virginia University College of Law Professor Atiba Ellis writes that it’s an “appealing” but false premise that racial discrimination is a “relic. Or as New York Law School Professor Deborah Archer notes in her post, the Voting Rights Act has helped stop very recent attempts in the states and towns covered by Section 5, mostly in the South, to implement schemes to suppress the minority vote. Archer concluded by citing Civil Rights hero U.S. Congressman John Lewis who has warned that history teaches us that “popular rights and democratic rights can be reversed ….”

Rep. Lewis (D-Ga.) in a Feb. 24 column for The Washington Post provides some context of his involvement in “Bloody Sunday,” where he and many other peaceful protesters were brutally beaten by Alabama state troopers. The marchers from Selma to Montgomery, Lewis noted, were taking action to highlight the need for voting rights protections in the state. The brutish actions of Alabama officers against the protesters certainly helped grab the nation’s attention and not long thereafter President Lyndon Johnson pushed for a voting rights measure, which would eventually become law.

Lewis (pictured) says it is fantastical to believe that all is well in the jurisdictions covered by Section 5. (Those jurisdictions must get “preclearance” from the Department of Justice or a federal court in Washington, D.C. for any changes to their voting laws and procedures. See the ACS Voting Rights Resource Page, for more information about the law and the case challenging it, Shelby County v. Holder.)

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Supreme Court, Voting rights, Racial justice, Constitutional Interpretation and Change, Democracy and Voting, Equality and Liberty, Rep. John Lewis, Section 5, Shelby County v. Holder, voter suppression, Voting Rights Act of 1965
February 25, 2013
Mission Accomplished? Post-Racialism and Shelby County
Guest Post
by Atiba R. Ellis, Associate Professor, West Virginia University College of Law. This post is part of an ACSblog symposium on Shelby County v. Holder.

In Shelby County v. Holder, the opponents of Section 5 of the Voting Rights Actargue that this provision acts as a bludgeon that crushes the ability of the covered jurisdictions to legislate freely concerning the electoral process. The premise of this argument is that the America – and especially the jurisdictions covered by Section 5 – has triumphed over the problem of race. The voter suppression that existed in 1965 no longer exists. An America that can elect an African-American president no longer needs to micromanage the election processes of certain states and localities on the basis of race. The opponents’ claim is that we live in a post-racial world, and a Congress that fails to recognize this has overstepped its constitutional role.

These two premises – that race is a relic of the past and that Congress has overreached its power to manage the electoral process – are false.

Yet it is appealing to believe that we as a country have triumphed over the problem of race. This narrative tempts all of us, liberals and conservatives, to move on to other problems and feel good about ourselves. For the political right, if race is no longer a problem, then the ridicule conservatives suffer because they are typecast as being “bad on race” is no longer valid. For the political left, the triumph over race represents the realization of the liberal vision of racial harmony. The end effect is that once we believe this view, we avoid race discussions and eschew race-conscious remedies despite the facts.

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Redistricting, Supreme Court, Voting rights, Racial justice, Constitutional Interpretation and Change, Democracy and Voting, Equality and Liberty, ACSblog symposium on Shelby County v. Holder, Atiba R. Ellis, Fisher v. University of Texas at Austin, Guest Post, Northwest Austin Municipal Utility District Number One v. Holder, Section 5, Shelby County v. Holder, Voting Rights Act of 1965