Shelby County v. Holder

  • October 2, 2014
    Guest Post

    by Kareem U. Crayton, associate professor of law, the University of North Carolina School of Law

    Voting has been described by the Supreme Court as “preservative of other basic civil and political rights.” So when law and policy leave voting insecure, the core project of governance itself faces grave risk. 

    During oral arguments preceding the June 2013 decision to invalidate a key feature of the Voting Rights Act in Shelby County v. Holder, Justice Anthony Kennedy dismissed concerns that voting would become less secure for racial minorities. Even absent Section 5’s preclearance oversight for states with egregious histories of discrimination, Kennedy asserted, Section 2 of the law would allow citizens to use traditional litigation to block discriminatory laws. A year into the post-Shelby County era, we have initial evidence of how this litigation has fared in practice.

    One test of Section 2 is playing out in North Carolina, where this week the 4th Circuit Court of Appeals ruled in favor of the North Carolina NAACP and allied groups in their challenge of a state law that is widely recognized as the nation’s most restrictive. The Court’s decision ordered a preliminary injunction for two provisions of the law – the elimination of same-day registration, and the prohibition of out-of-precinct ballots from being counted. The decision means that these rules will not apply in the November election, contrary to an earlier decision by a U.S. District Court to deny this preliminary injunction. A full trial regarding the merits of the law will go to court next July.

    According to the 4th Circuit, “The district court got the law plainly wrong in several crucial respects" in assessing whether North Carolina’s measure, known as H.B. 589, was likely in violation of Section 2. They continued, "When the applicable law is properly understood and applied to the facts as the district court portrayed them, it becomes clear that the district court abused its discretion in denying plaintiffs a preliminary injunction and not preventing certain provisions of House Bill 589 from taking effect while the parties fight over the bill's legality."

    North Carolina’s H.B. 589 enacts multiple changes to the state’s election system. It eliminates same-day voter registration, prohibits out-of-precinct ballots from being counted, shortens the early voting period by a week, eliminates a successful pre-registration program for 16- and 17-year-olds, prohibits counties from extending Election Day poll hours to account extraordinary circumstances (such as long lines), permits poll observers to challenge voters, and implements a strict photo ID requirement.

  • August 25, 2014

    by Caroline Cox

    In 2013, the Supreme Court severely weakened the Voting Rights Act of 1965 with its  decision in Shelby County v. Holder. In a discussion of the post-Shelby era at the 2014 ACS National Convention, Gilda Daniels, Associate Professor of Law at the University of Baltimore School of Law, offered both hope for and a realistic take on the challenges facing those who are working to protect voting rights.

    Daniels has made her career as a voting rights expert with over a decade of experience bringing cases on provisions of the Voting Rights Amendment and other statutes. As a former deputy chief in the Department of Justice Civil Rights Division, Voting Section, Daniels recognizes Shelby’s immense impact on voting laws in the United States. More restrictive voting laws have already appeared throughout the country, and the legal means to challenge discrimination in voting are too costly both in terms of time and money to be the solution. “It’s very similar to what happened during Reconstruction,” Daniels remarked. “You pulled the protections, and you got massive voter suppression, and I am afraid that can happen in this generation.”

    Daniels argued that powerful advocates are the key to protecting voting rights. While the Voting Rights Act Amendment is a good start, “it still leaves a gulf between what is needed and what’s being proposed,” according to Daniels. The new landscape of voting offers new opportunities to speak to the importance of this right and challenge discrimination. “We have to be more creative about how we fashion the narrative, how we talk about voting rights, how we put our cases together, where we file our cases so we can start regaining ground we have lost,” Daniels explained. Even reminders that voter registration matters, Daniels argued, can be an important step to tipping the scales in favor of voting rights again.

    Watch the brief interview with Gilda Daniels below or here. For information about the VRAA see this ACS Issue Brief

  • August 6, 2014
    Guest Post

    by Estelle Rogers, Legislative Director, Project Vote

    *This piece originally appeared on Project Vote’s Voting Matters.

    Forty-ninth anniversaries don’t usually garner much attention, but today a 49th anniversary—though filled with pathos—is worth commemorating. The Voting Rights Act was signed into law by President Lyndon Johnson on August 6, 1964. Often called the “crown jewel” of the civil rights movement, the Voting Rights Act has now lost a bit of its luster, tarnished by the Supreme Court’s decision in Shelby County v. Holder.

    The passage of the Voting Rights Act took barely four months after the President sent the bill to Congress; he called it “one of the most monumental laws in the entire history of American freedom.” And it passed by overwhelming bipartisan majorities in both chambers, foreshadowing the four reauthorization votes that reaffirmed its vitality over the years since. The last, in 2006, passed by a vote of 98-0 in the Senate and 390-33 in the House. But no more.

    Since the Supreme Court eviscerated preclearance, one of the most important tools written into the VRA to fight racial discrimination, the law’s historical bipartisan support seems but a distant memory.  Preclearance requires states and smaller jurisdictions with particularly troubling histories of voting discrimination to secure federal approval in advance for any voting changes. The law swept broadly, recognizing that even seemingly trivial statutory or administrative changes often operate to disadvantage racial and language minorities. One of its most significant advantages was to mitigate the necessity to file expensive and time-consuming lawsuits to redress voting discrimination on a case-by-case basis. As part of the VRA, it was reauthorized four times. But no more.

  • 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.