Voting Rights Act

  • June 14, 2013

    by Jeremy Leaming

    The Supreme Court's right-wing justices have another opportunity to greatly hobble the Voting Rights Act by finding its primary enforcement provision, Section 5, unconstitutional. And the high court is likely to issue its opinion any day now. But U.S. Rep. John Lewis (D-Ga.) at the 2013 ACS National Convention urged progressives to be ready to fight back, to not give up on equality.

    Lewis, a civil rights hero, noted his upbringing in rural Alabama, fifty miles from Montgomery, during an era of Jim Crow, and his inspirations for fighting entrenched racism in an effort to create a more thoughtful and honest country. One where the Constitution's promises of equal protection and due process under the law are met.

    “When I was growing up, I saw those signs that said 'white men, colored men,' and 'white women, colored women.' I would ask my mother, my father, my grandparents, my great grandparents, why? And they would say, 'That's just the way it is. Don't get in the way, don't get in trouble.' But I heard of Rosa Parks, heard the words of Martin Luther King, Jr. on the radio. The action of Rosa Parks, the leadership and words of Dr. King inspired me to get in the way, to get into trouble, good trouble, necessary trouble. And I think it's time for all of us once again to get into trouble, good trouble, necessary trouble.

    “I have a strange feeling in America, at this point in history, we're just a little too quiet,” he continued. “We've come to a point where we almost want to resign, and say this is just the way it is. But it doesn't have to be this way. There are still too many people in our society who have been left out and left behind.”

    Lewis focused on how one might react to the outcome of the Supreme Court's consideration of Shelby County v. Holder, the case challenging the constitutionality of the Voting Rights Act's Section 5 as a heavy-handed federal government intrusion on state sovereignty. Section 5 covers states and towns, mostly in the South, with long histories of keeping minorities away from the polls. The provision provides that those states must obtain preclearance from a federal court in Washington or the DOJ before making changes to their voting laws, including redistricting.

    Even if the high court provides some gloomy news by striking Section 5 or weakening it, Rep. Lewis said there was no need to despair. Instead, liberals and progressives should be prepared to cause a bit of trouble, good trouble, as Rep. Lewis said.

    “We've come to far, we've made too much progress to go back,” Lewis said. “We must move forward. We got the Civil Rights Act in 1964, the Voting Rights Act in 1965. I've always taken the position that the vote is precious. It is the most powerful, nonviolent tool we have in a democratic society, and we must use it.”

    If the high court's right-wing justices successfully gut the Voting Rights Act, Lewis said we must be prepared to “fight the good fight, and never, ever give up.”

    “We must get in the way, we must get in trouble, good trouble; use the law. Use the Constitution, to bring about a non-violent revolution right here in our country. Don't give up, don't give in, our struggle is one that does not last one day or one week, or one year. It is a struggle of a life time, or many life times. We must do what we can, as Dr. King said, to create the beloved community.”

    Getting into trouble, standing in the way of right-wingers beholden to corporate America, and striving to create a smarter country. That sounds as challenging as it is inspiring.

    See Lewis' speech below or click here.

  • June 13, 2013
    Guest Post

    by Adam Winkler, Professor of Law, UCLA School of Law

    June is every Supreme Court watcher's favorite time of year. There are always several important, potentially landmark, rulings to be handed down. This year, there are four major cases sure to make headlines: Fisher v. University of Texas on the constitutionality of race-based admission preferences; Shelby County v. Holder on the continued viability of a key provision of the Voting Rights Act; U.S. v. Windsor on the Defense of Marriage Act; and Hollingsworth v. Perry on California's ban on same-sex marriage. While no one knows exactly how the Court will rule on these controversies -- and last term's Obamacare decision reminds us that surprises are always possible -- there seems to be a good chance they will follow a distinctive pattern.

    The conservative justices will be bold and assertive, while the liberal justices will be hesitant and incremental.

    Instead of constrained, the conservative justices appear ready to declare an end to a half-century of law providing benefits for racial minorities who've suffered a long history of discrimination. In the Voting Rights Act case, the five most conservative justices on the Court -- Chief Justice Roberts and Justices Scalia, Kennedy, Thomas, and Alito -- signaled their willingness to strike down or effectively nullify one of the most important and effective civil rights laws ever enacted. While other parts of the Voting Rights Act will remain intact, voiding Section 5, which requires pre-clearance of changes to voting rules by jurisdictions with a documented history of racial discrimination in voting, will be a severe blow to civil rights. Section 5 is a valuable prophylactic rule that does far more to prevent discrimination than the VRA's other central provision, Section 2, which directly outlaws discriminatory voting practices. Section 2 is an ex-post remedy and requires the challenger to satisfy a difficult burden of proof to win. Section 5 stopped the discrimination before it could occur. While the conservative wing of the Court may stop short of invalidating Section 5 entirely, they might just declare unconstitutional the formula used to determine which jurisdictions are covered. That would seem to be a narrow, incremental ruling but it would have the same practical result as invalidating Section 5. Given the growingly fierce GOP opposition to Section 5 and the general inability of Congress to pass anything of significance, there's almost no chance Congress will adopt a new formula.  Section 5 might remain "on the books" but it would be essentially a dead-letter.

  • February 26, 2013

    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.

  • February 26, 2013
    Guest Post


    by Steven D. Schwinn, associate professor of law at the John Marshall Law School in Chicago and an editor of the Constitutional Law Prof Blog. This post is part of an ACSblog symposium on Shelby County v. Holder.

    When the Supreme Court takes up the Voting Rights Act case this week, Shelby County v. Holder, the Justices will focus on this question: Whether Congress had authority under the Fourteenth and Fifteenth Amendments to require certain jurisdictions to gain federal preclearance before making any changes to their election laws.  But lurking in the background of the Question Presented is a curious nod to federalism.  Thus the Court will ask if Congress exceeded its authority, then did it violate the Tenth Amendment and Article IV—provisions that, according to the petitioner, protect states’ rights.

    We might wonder where this federalism concern comes from.  After all, neither the Tenth Amendment nor Article IV limits federal authority because of states’ rights.  Neither provision says anything about the substantive scope of federal authority; and neither provision obviously grants a claim of states’ rights.  Instead, they simply outline the necessary relationship between the federal government and the states in a federal system like ours.  These provisions are, at most, a blueprint for federalism.  They add nothing to the core question of congressional authority, the real issue in the case.

  • February 26, 2013
    Guest Post


    by Gilda R. Daniels, Associate Professor at the University of Baltimore School of Law and former Deputy Chief of the United States Department of Justice, Voting Section. This post is part of an ACSblog symposium on Shelby County v. Holder.

    It would certainly be ironic if Alabama, the state that gave us the Voting Rights Act in 1965 because of its opposition to providing African American citizens the ability to register and vote, would also serve as the state that would end a key part of the Act.  It could happen.  It shouldn’t, if the Supreme Court recognizes the significance of ensuring that history does not repeat itself.

    On February 27, the United States Supreme Court will hear Shelby County, Alabama v. Holder, a challenge to Section 5 of the Voting Rights Act.  The Voting Rights Acthas two primary provisions: Section 2 is permanent and prohibits race discrimination in voting and Section 5, which is one of the temporary provisions, requires periodic Congressional reauthorization.   What Section 5 does is very important.  It is both prophylactic and preventative and requires “covered jurisdictions” to “preclear” voting changes before they can implement them.  These changes can range from a redistricting to the mundane moving of a polling place across the street.  Regardless, the VRA requires the jurisdiction to submit the change to either the Attorney General of the United States or the United States District Court for the District of Columbia for approval prior to implementation. Alabama is one of the originally covered Section 5 jurisdictions.

    In March 1965, more than 600 marchers embarked on a journey to walk from Selma to Montgomery, Alabama to spotlight the belligerence and entrenchment of voting disenfranchisement for African Americans.  On Sunday, March 7, the marchers barely reached the Edmund Pettus Bridge before law enforcement officials beat and tear gassed the young people and children who bravely attempted the march.   After “Bloody Sunday,” Congress passed the Voting Rights Act of 1965 to address the widespread state sponsored shenanigans surrounding the right to vote, such as,  poll taxes, literacy tests, closure of registration sites, acts and threats of violence surrounding voter registration and participation that remained rampant throughout much of the country,  especially in the South.   President Lyndon B. Johnson proclaimed the Voting Rights Act of 1965, “one of the most monumental laws in the entirehistory of American freedom.”   In August 1965, less than five months after the Edmund Pettus incident, he signed the Voting Rights Act.