Shelby County v. Holder

  • July 10, 2014
    Guest Post

    by Jennifer L. Clark, Counsel, Brennan Center for Justice

    *This piece is cross-posted on Brennan Center's blog.

    Throughout 2014, we’ve seen courts step in to block laws restricting access to the ballot box. Courts struck down photo ID laws in Pennsylvania, Wisconsin, and Arkansas, and pushed back against efforts to cut back on early voting in Ohio. This week, all eyes are on North Carolina, where a federal court will decide whether to temporarily block the state’s 2013 omnibus election law — one of the most wide-reaching and restrictive voting measures in the country — before the November 2014 elections. 

    Before last June’s Supreme Court decision in Shelby County v. Holder, which gutted a core Voting Rights Act protection, North Carolina had to “pre-clear” all statewide election changes before putting them into effect. This meant the state had to show the laws wouldn’t discriminate against minority voters. After the Court’s ruling last summer, however, lawmakers around the country, including in North Carolina, seized the opportunity to pass a series of voting restrictions. North Carolina’s legislation slashes early voting days, eliminates same-day registration, gets rid of out-of-precinct provisional voting, imposes a strict photo ID requirement, and does away with pre-registration for 16- and 17-year-olds, among other changes. Except for the photo ID requirement, which is slated to be implemented in 2016, all of these measures will be in effect this November.

    The Department of Justice and multiple civic groups quickly challenged the law in federal court. A full trial on the merits of the challengers’ claims is scheduled for July 2015, but, seeking redress in advance of November, the law’s challengers filed motions this past May to temporarily block many of the worst new restrictions. This week, the court is holding hearings to determine whether to grant these motions, and thereby prevent the law from going into effect until a full trial can be held.

  • June 25, 2014

    by Nicholas Alexiou

    The Supreme Court issued two opinions today in cases touching on technology. As Scott Lemieux explains at The American Prospect, in Riley v. California, a near unanimous Court found that police cannot search the cell phone of an arrested individual without a warrant. Daniel Fisher at Forbes details how the Court ruled 6-3 against tech start-up Aereo in American Broadcasting Companies, Inc. v. Aereo, Inc.

    The U.S. Court of Appeals for the Tenth Circuit upheld a lower court decision and found that Utah’s ban on same-sex marriage is unconstitutional. The court stayed its ruling pending a potential appeal to the Supreme Court. Zack Ford of Think Progress reports that Indiana’s same-sex marriage ban was also struck down today by a federal judge.

    At Vox, German Lopez looks at new analysis from the Prison Policy Initiative examining the incarceration rates in each U.S. state and how even the “most liberal states imprison more people than nearly any other country in the world.” PPI Executive Director Peter Wagner was the 2104 recipient of the ACS David Carliner Public Interest Award.

    On the first anniversary of Shelby County v. Holder, Tomas Lopez of the Brennan Center for Justice examines how voting laws across the country have changed in the aftermath of the Supreme Court’s ruling.

  • January 17, 2014
    Yesterday, a bipartisan, bicameral group of legislators introduced the Voting Rights Amendment Act of 2014, legislation sponsored by Rep. Jim Sensenbrenner (R-Wis.) and House Judiciary Committee Ranking Member John Conyers Jr. (D-Mich.) in the House and by Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.) in the Senate.  The bill represents a much-needed and significant first step in the effort to respond to the void left by the Supreme Court’s decision seven months ago in Shelby County v. Holder that invalidated a key portion of the Voting Rights Act of 1965 (“VRA”).
    Before Shelby, Section 5 of the VRA required certain jurisdictions with a documented history of racial discrimination in voting to submit any changes in voting laws and procedures to either the Department of Justice (“DOJ”) or a three-judge panel of the United States District Court for the District of Columbia for review, a process known as “preclearance.”  Most voting changes in these “covered jurisdictions” were approved quickly and routinely, but practices that were found by DOJ or the court to be racially discriminatory were blocked from taking effect.  However, in Shelby, a five-justice majority invalidated the coverage formula used to determine which jurisdictions were covered by Section 5, finding that it was outdated and insufficiently tailored to the existence of racial discrimination in voting today.  The Court took this unprecedented step even though Congress had overwhelmingly voiced its determination – by votes of 98-0 in the Senate and 390-33 in the House – that the coverage formula was appropriately responsive to continued racial discrimination in voting in the covered jurisdictions.
    As a result of the Court’s decision, Section 5 was effectively nullified.  The weeks and months following Shelby confirmed that while our Nation has made great strides towards addressing racial discrimination in voting, such discrimination has not been eradicated, as several previously covered states and jurisdictions swiftly enacted laws that would have been subject to preclearance – and potentially blocked – prior to Shelby.
  • November 26, 2013
    This past June, the Supreme Court struck down a key provision in “arguably one of the most successful acts passed by Congress in any area,” said Richard Reuben, the James Lewis Parks Professor of Law at the University of Missouri School of Law, at a recent event on Shelby County v. Holder hosted by the ACS University of Missouri School of Law Student Chapter.
    The affected provision of the Voting Rights Act, Section 4(b), contains the coverage formula for determining which jurisdictions are subject to a preclearance requirement before they can amend their voting laws. Section 5 details the logistics of the requirement, which was designed to target states and local governments with a history of discriminatory practices. By declaring Section 4(b) unconstitutional under the claim that the formula was based on obsolete data, the Court essentially nullified Section 5. States that were once required to have a federal court or the Department of Justice sign off on changes to voter law may now proceed unchecked.
    In an ACS National conference call – “After Shelby County: The Future of the Voting Rights Act” – Julie Fernandes, Senior Policy Analyst at the Open Society Foundations and former Deputy Assistant Attorney General for Civil Rights at the Department of Justice, discussed how the legislation can combat discriminatory practices without Sections 4(b) and 5. In particular, she named Section 2 and Section 3(c) as candidates.
    Appeals to Section 2 result from policies or practices in voting areas with a discriminatory purpose or result. Sadly, explained Ms. Fernandes, these after-the-fact remedies often take a long time, are very expensive and result in complicated litigation. Violations of the Fifteenth Amendment may also be remedied by preclearance requirements set forth in Section 3(c). Yet intentional discrimination must be a predicate in these cases, she said, and courts do not often find said discrimination.
    In a post-Shelby world, Ms. Fernandes identified the need for a new, data-driven preclearance formula; the expansion of federal courts’ ability to institute preclearance requirements; and public notice and disclosure of voting law changes.
  • November 5, 2013

    by Jeremy Leaming

    Several years before the U.S. Supreme Court greatly hobbled the landmark Voting Rights Act in Shelby County v. Holder, a federal appeals court circuit provided a significant boost to ignoble state efforts to suppress the votes of minorities, students, the poor and the elderly. In Crawford v. Marion County Election Board, the U.S. Court of Appeals for the Seventh Circuit turned away a constitutional challenge and upheld a stringent voter ID law in Indiana.

    Recently Seventh Circuit Judge Richard Posner, who authored the Court’s opinion that was subsequently upheld the by the U.S. Supreme Court, said he erred. Posner (pictured), who now says laws like Indiana’s are “widely regarded” as tools to suppress the vote, suggested that his error in Crawford was partly due to poor presentation of the evidence that the law would disproportionately suppress groups of voters. (In this piece for ACSblog, longtime Supreme Court litigator Paul M. Smith, who argued Crawford before the high court, explains why Posner had plenty of compelling information to vote the other way and invalidate the Indiana law.)

    In a piece for The National Law Journal, Sherrilyn Ifill, president and director-counsel of the NAACP Legal Defense and Educational Fund, addressing Posner’s comments, goes further, noting that far too many judges view constitutional challenges to state Voter ID laws with “skepticism.”

    Ifill writes, “Without a doubt, lawyers advancing claims of discrimination should have to prove their case. But judges also should be aware of their own lack of experience and knowledge.”

    For example, Ifill cites a 2010 opinion from the U.S. Court of Appeals for the Eleventh Circuit that rejected a racial discrimination lawsuit, claiming there was not sufficient evidence that a white supervisor calling a black worker “boy” amounted to racism. Ifill then turned to the more recent Shelby County opinion, where the high court’s conservative justices banded together to decided “that they were better positioned than Congress to determine whether racial discrimination in voting still justifies the coverage regime that existed under” the Voting Rights Act. “Not even 15,000 pages of evidence and testimony could convince the court that Congress got it right.”

    The problem here, Ifill explains is that we all imagine we are experts on what accounts for discrimination. The truth is we are not, including judges. “We are too often,” Ifill writes “unwilling or unable to defer to the substantiated experiences of those who stand directly vulnerable to discrimination in voting, housing, employment and countless other arenas.”

    And many voters, primarily minorities, continue to suffer as state after state creates new and onerous hurdles to voting. Posner may now be able to acknowledge what many others do – too many state voter ID laws are all about suppressing the vote. But as Ifill explains, many judges are just ill-equipped to understand the scope and depth of discrimination despite the evidence provided them.

    For detailed information on state restrictions on voting, see the ACS’s Voting Rights Resources.