Voting Rights Act

  • August 14, 2015
    Guest Post

    by Franita Tolson, the Betty T. Ferguson Professor of Voting Rights, Florida State University College of Law.

    *This post is part of ACSblog’s symposium regarding the 50th anniversary of the Voting Rights Act of 1965.

    The fiftieth anniversary of the Voting Rights Act of 1965 provides an opportunity to reflect, not only on its marveled history, but also on the next frontier of voting rights litigation and policy. The Act has faced unprecedented challenges in recent years, culminating in the 2013 U.S. Supreme Court decision of Shelby County v. Holder. In Shelby County, the Court invalidated the coverage formula of section 4(b) of the Voting Rights Act.  The coverage formula required certain jurisdictions, mostly in the south, to preclear all changes to their electoral laws with the federal government under section 5 of the Act.  The Court found that the formula unduly infringed on the states’ sovereign authority over elections because Congress had not updated the formula in over forty years, and racial discrimination in voting had substantially decreased over this time period. 

    Contrary to the Court’s assertions of post-racialism, the years since Shelby County have welcomed a considerable increase in the number of restrictions designed to undermine the right to vote. According to the Brennan Center, states have introduced 113 bills this year alone that limit access to registration and voting. There also has been litigation challenging voting restrictions in North Carolina and Texas, which enacted very restrictive voting laws immediately following the Shelby County decision.  Unsurprisingly, both the U.S. Department of Justice and private litigants have turned to section 2 of the Voting Rights Act to challenge these provisions after the Supreme Court crippled the preclearance regime of sections 4(b) and 5. Section 2 of the Act forbids any “standard, practice, or procedure” that “results in a denial or abridgment of the right of any citizen of the United States to vote on account of race or color.”  Unlike the preclearance regime, section 2 applies nationwide and allows plaintiffs to challenge a law after it goes into effect.

    The strategic decision by the Justice Department and private litigants to use section 2 to fill the gap left in the Voting Rights Act post-Shelby County has brought renewed attention to section 2’s constitutionality.  The Supreme Court has never directly addressed this issue, and critics argue that section 2 raises many of the same federalism concerns as the recently invalidated coverage formula.  Texas, in the current litigation over its voter identification law, explicitly argued that it is unconstitutional to apply section 2 to address the racially discriminatory effects of its voter identification law absent a showing that the law is intentionally discriminatory. So far, courts have been unresponsive to this type of argument, but very few courts have confronted the issue in the post-Shelby County world. 

  • August 11, 2015
    Guest Post

    by Julie Ebenstein, Staff Attorney, Voting Rights Project, American Civil Liberties Union

    *This post is part of ACSblog’s symposium regarding the 50th anniversary of the Voting Rights Act of 1965.

    Just days before the 50th anniversary of the Voting Rights Act, we completed a three-week trial challenging North Carolina’s sweeping anti-voter law. 

    In 2013, soon after the U.S. Supreme Court struck down Section 4 of the Voting Rights Act - and with it, the preclearance protections of Section 5 - North Carolina passed an election law shocking in its lack of a valid purpose and its extensive abridgement of citizens’ right to vote.  The challenged provisions of the law reduced the number of days for early voting, eliminated same-day-registration, and prohibited out-of-precinct Election Day voting.  Cumulatively, the law is one of the most repressive elections bills seen in decades. The law exemplifies a “second generation” barrier to voting.  It created broad, structural impediments to electoral participation, in part on the basis of race, and will likely impact hundreds of thousands of voters in the upcoming presidential election.

    In the pre-2013 world, the law would not likely have survived Section 5 preclearance, and thus, would never have been implemented.  But the absence of Section 5’s protection has created a severe disadvantage for voters challenging state’s vote denial measures. Our lawsuit, filed the day the law was implemented, illustrates some of the obstacles to protecting voting rights in the post-Shelby era.

    Section 2’s prohibition on racial discrimination is one of the remaining tools to protect the franchise, but it requires that litigation take place after a law has already gone into effect. As such, the advantages of time and inertia have shifted back to the perpetrators of voter suppression and away from its victims.  Section 2 cases are fact intensive, time-consuming and resource-intensive undertakings.  With constant election cycles, there is no guarantee that the legality of state election laws will be determined before voters are irreversibly disenfranchised.

    The 2014 federal election provides numerous examples. In late 2014, we saw rapid-fire orders by the U.S. Supreme Court, instructing the Sixth, Fourth, Seventh and Fifth Circuits to put election-related decisions on hold until after the election.  Over the course of three weeks, the U.S. Supreme Court made four determinations that affected voting rights in key federal elections.  On September 29, 2014, the Court stayed an Ohio district court decision, upheld by a Sixth Circuit appeals panel, enjoining the state’s cuts to early voting.  The following week, on October 8, the Court stayed the Fourth Circuit mandate to reinstate same-day registration and out-of-precinct voting, after the district court declined to enjoin the practices.  The next day, the Court vacated the Seventh Circuit’s stay of a Wisconsin district court’s permanent injunction of the state’s strict voter ID law.  On October 18, the Court denied applications to vacate the Fifth Circuit’s stay of a decision enjoining Texas’s voter ID law. 

  • August 10, 2015
    Guest Post

    by Tram Nguyen, Co-Executive Director, New Virginia Majority

    *This post is part of ACSblog’s symposium regarding the 50th anniversary of the Voting Rights Act of 1965.

    The principle of our democracy rests on the idea that each person has a vote that is cast and counted equally, regardless of who they are or where they come from. Fifty years ago, brave women and men marched across a now infamous bridge in Selma, Alabama, facing violence and risking death, asking only for that simple and fundamental right to vote. Today access to the ballot box is being threatened across the country and the struggle to defend our right to vote is still real.

    Since the Shelby decision eviscerated the protections of the Voting Rights Act for which they fought, emboldened state legislatures across the country, particularly those that were previously covered under pre-clearance requirements, are passing more and more laws making it harder for citizens to vote.

    For years, we in Virginia have been fighting against attacks on our voting rights. Prior to the Shelby decision, we could at least count on the Department of Justice to review proposed voting changes, and we could challenge the laws before they were enacted. Now we are forced to challenge voting restrictions in the courts after they’ve taken effect, which can not only be a costly and lengthy process, but many voters already will have been unable to cast a ballot as a consequence.

    Given the current voting rights landscape, civil rights advocates are getting more creative about how to protect voters from the most negative impacts of such restrictive laws. Across the country, many are looking at ways to work with secretaries of state and other election officials as they adopt regulations to implement these new laws.

    For example, Virginia’s new voter photo ID law went into effect in 2014 without being subject to any sort of review. While the law was passed in 2013, an enactment clause delayed implementation until July 1, 2014, which gave voting rights stakeholders over a year to work with the State Board of Elections on specific regulations. We worked with the State Board of Elections under two different administrations – Governor Bob McDonnell (R) and Governor Terry McAuliffe (D), and ultimately the final regulations had bipartisan support.

  • August 7, 2015
    Guest Post

    by Atiba R. Ellis, Professor of Law, West Virginia University College of Law. Twitter: @atibaellis

    *This post is part of ACSblog’s symposium regarding the 50th anniversary of the Voting Rights Act of 1965.

    The cornerstone of our democratic republic is the right to vote. The vote allows “We the People” ultimate say over government. The vote allows “We the People” to reject big-money-funded misinformation, the erosion of fundamental rights, and the degradation of public policy. As the Supreme Court has said for over a century, the right to vote is the most fundamental political right because it is “preservative of all other rights.” 

    To be effective at these (admittedly lofty) goals, we also have to recognize that the diversity of our electorate matters. For government to be legitimate, all citizens should be able to participate. Arbitrary bars to political participation raise questions of the validity of representative bodies. History has shown that in the absence of broad enfranchisement, government only acts for the unrepresentative majority. That majority can (and does) marginalize the minority when it comes to the minority’s status as equal citizens. This describes the majoritarian racial domination that defined the Jim Crow era of the nineteenth and twentieth centuries. The Voting Rights Act of 1965 (the “VRA”), which we celebrate in this symposium, is the Constitution’s weapon against this racial domination.

    This state of racial domination had its roots in Reconstruction. The Reconstruction-era Congress, as I note here, sought specifically to protect the vote of freed slaves. The Republican majority in Congress of the late 1860s feared that terrorist tactics and legalized mischief would dissuade African Americans (an important Republican voting bloc) from the franchise. This Congress passed, and the states ratified, the Fifteenth Amendment that constitutionalized the idea of a right to vote free of racial discrimination.

    But the Reconstruction Congress’s fears came true in the century that followed. Even with the Fifteenth Amendment, our constitutional structure nonetheless relies heavily on states to define and administer the qualifications for voting. The Jim Crow period was created by a the southern states betraying the Fifteenth Amendment through race-neutral yet nonetheless disempowering tactics like poll taxes and literacy tests that crushed black political power.

    Thus, by the time the VRA was passed in 1965 to address these concerns, the democratic legitimacy of the United States was openly questioned. Two Americas existed—a white male America with full civil and political power and a black America where two-thirds of African Americans had been discouraged, dissuaded, and terrorized out of the vote.

  • August 7, 2015
    Guest Post

    by J. Gerald Hebert and Nate Blevins. Mr. Hebert is the Executive Director and Director of Litigation at The Campaign Legal Center. Mr. Blevins is a Fellow at the Campaign Legal Center. The Campaign Legal Center partners with ACS for the Voting Rights Institute.

    *This post is part of ACSblog’s symposium regarding the 50th anniversary of the Voting Rights Act of 1965.

    Barely a page into his majority opinion in Shelby County v. Holder, Chief Justice John Roberts makes a claim that in any other context would seem unremarkable, even obvious: "Voting discrimination still exists; no one doubts that."

    The Chief Justice was at least half right: The overwhelming evidence indicating that "voting discrimination still exists" is beyond debate. What's unclear, however, is whether "no one doubts" such discrimination still exists. In fact, the Chief himself seems to doubt it quite a bit.

    In Shelby, the Court's task should have been straightforward. In the past, the Justices had held consistently that "Congress may use any rational means to effectuate the constitutional prohibition of racial discrimination in voting." As a result, all the Court needed to decide was whether the Voting Rights Act’s Section 4 preclearance formula (as applied through Section 5) was a "rational means" of enforcing the guarantees of the Fifteenth Amendment. Indeed, the Court had little difficulty making that determination prior to Shelby County: It upheld the Voting Rights Act's preclearance regime first in South Carolina v. Katzenbach in 1966 and affirmed it again 14 years later in City of Rome v. U.S. Both times, it rejected claims that the VRA exceeded Congress's power to enforce voting rights, going so far as to call the choice to extend the VRA "unassailable" and "plainly a constitutional method of enforcing the Fifteenth Amendment."

    So, what changed? How did the Court go from treating the VRA's constitutionality as "plain" and "unassailable" to having, as the majority put it in Shelby, "no choice but to declare [the preclearance provisions] unconstitutional"?