Voting rights

  • February 22, 2013

    by Jeremy Leaming

    Once again the U.S. Supreme Court will grapple with the constitutionality of Section 5, the strongest enforcement provision of the landmark Voting Rights Act of 1965, when Alabama officials take to the high court on Feb. 27 to argue that the provision is outdated and subverts state sovereignty.

    Noted in this post, groups arguing in favor of Section 5 say Alabama officials ignore persistent violations of Section 5 in trying to persuade a Court controlled by a right-wing majority that it is now time to do away with the law’s integral enforcement measure. Several of the groups point out that as early as 2010 officials in Shelby County, Ala., a largely white enclave outside Birmingham, were working to alter voting districts to dilute the minority vote. Section 5 applies to several states and municipalities, mostly in the South, with intense histories of racial discrimination in voting. It requires those jurisdictions to obtain “preclearance” from the Department of Justice or a federal court in Washington before making any changes to their voting rules and procedures.

    But since its enactment in 1965 a string of covered jurisdictions has lodged lawsuits against Section 5. As noted by David H. Gans and Elizabeth B. Wydra in a new ACS Issue Brief on the case, Shelby County v. Holder, the Supreme Court has upheld the constitutionality of Section 5 on four occasions – 1966, 1973, 1980, and 1999 – “recognizing that the Act falls squarely within congressional power to enforce the constitutional ban on racial discrimination in voting.”

    Several other groups have lodged friend-of-the-court briefs with the Supreme Court providing recent examples of racial discrimination in voting in the covered jurisdictions and arguing that Section 5 is an appropriate congressional action to enforce the promise of both the Fourteenth and Fifteenth Amendments. (The Fourteenth Amendment bars states from depriving people of liberty and the Fifteenth Amendment prohibits states from discriminating against voters because of their race.)

    During a recent ACS panel discussion on the Shelby County case Armand Derfner, a renowned attorney who has argued on behalf of voters in the covered jurisdictions against racial discrimination in voting, dismissed arguments that Section 5 has outlived its usefulness. (Video of the discussion is here.)


  • February 22, 2013

    by John Schachter

    While most Americans know that today, February 22, was George Washington’s birthday, not enough know that he shares this day with another late great American. Former Senator Edward M. Kennedy (D-Mass.) would have turned 81 today had he not tragically succumbed to brain cancer in August 2009. Fortunately his legacy lives on.

    On so many of the issues dominating the public debate today -- voting rights, educational opportunity, marriage equality and equal rights for all Americans – Kennedy was a leader and a force to be reckoned with. As the Supreme Court grapples with these issues and more, let us hope that Kennedy’s work will be neither forgotten nor for naught.

    In honor of Kennedy’s life and legacy, the Edward M. Kennedy Institute for the United States Senate was founded in Massachusetts following his death. The Institute “is dedicated to educating the public about our government, invigorating public discourse, encouraging participatory democracy, and inspiring the next generation of citizens and leaders to engage in the public square.” To commemorate his birthday, the Institute has posted a tribute video first shared at a celebration of Kennedy’s 77th birthday. It’s well worth a watch.

    Kennedy was a leading advocate of progressive ideals and also a friend to ACS. He was a major draw at a 2002 ACS national event and also authored an article for the summer 2008 volume of the Harvard Law & Policy Review (HLPR), the official journal of ACS, on the work of the Justice Department's Civil Rights Division.

    Ted Kennedy will be remembered for many things, for better or for worse. But his nearly five decades in the Senate left a record in many ways unparalleled in the history of the institution. And while he is no longer around to keep the work going, that doesn’t mean the work is done. As was often the case, no one could put it better than Kennedy himself: “For all those whose cares have been our concern, the work goes on, the cause endures, the hope still lives, and the dream shall never die.

  • February 15, 2013

    by Jeremy Leaming

    Alabama officials will take to the U.S. Supreme Court on Feb. 27 to try to gut the Voting Rights Act’s integral enforcement provision, Section 5. And their argument, what the Constitutional Accountability Center’s Simon Lazarus calls the “goofy gripe,” rests largely on the claims that racial discrimination in voting happens everywhere and so why pick on certain states.

    Lazarus notes, however, that just last year the Voting Rights prime enforcement provision was employed by the Justice Department to scuttle “vote suppression techniques familiar to all who followed the 2012 campaign: stringent voter ID laws, curtailed early voting opportunities, and discriminatorily rigged redistricting plans.”

    But the Alabama officials’ arguments are more than goofy, they’re ludicrous. There’s a reason why Section 5 remains relevant, because tawdry, bigoted attempts to deny minorities the right to vote remain the most intense in specific states and localities.

    First let’s start with some basics. The Constitution’s Fourteenth and Fifteenth Amendments bar the states from depriving citizens of liberty and from denying the right to vote to minorities. Moreover, both amendments include sections granting Congress, not the courts, the power to craft appropriate legislation to enforce the promise of both Amendments.

    When Congress enacted the Voting Rights Act it determined that some states and localities, mostly in the South, had much deeper and more intense histories of oppressing African Americans, including keeping them away from the polls. So Congress included a rather strong enforcement mechanism, Section 5, which would require those covered jurisdictions to obtain “preclearance” for any changes to their voting procedures from the Department of Justice or a federal court in Washington, D.C. In 2006 Congress in bipartisan fashion overwhelmingly reauthorized Section 5 for another 25 years, after amassing a voluminous record showing that the covered jurisdictions by far remained the most fertile ground for racial discrimination in voting. The evidence was that although progress had been made in the South, there remained a stubborn bigotry resulting in ongoing efforts to suppress the minority vote.

    During an ACS panel discussion this week on the case challenging Section 5, Shelby County v. Holder, several panelists noted stories from Texas, Alabama and other covered jurisdictions of “serial” efforts to suppress or dilute the vote of minorities. For example in 2008 Alabama officials, as NAACP LDF’s Ryan P. Haygood recounted, sought to implement a discriminatory redistricting plan to drastically reduce the sole majority black district in the state by creating hundreds of annexations, without obtaining preclearance. When the Justice Department did review the redistricting plan, it was rejected as discriminatory. Nonetheless the officials held the election with the discriminatory redistricting scheme and the DOJ lodged a Section 5 enforcement action undoing the election and requiring another election to be held. (LDF is representing voters in Alabama in the Shelby County case; for more on Section 5 and Shelby County see ACS’s Voting Rights Resources page.) Video of panel discussion is below or here.


  • February 14, 2013

    by Andrew Hamm

    Hundreds of thousands converged upon the National Mall in Washington, D.C. to witness Barack Obama take the oath of office for a second term as president. This act consummated the conferral of responsibility by the electorate, having exercised in November the fundamental right to vote that defines our nation. That defining right, however, has required constant protection – through marches, amendments, protests, and legislation – and with that vigilance.

    Assistant Attorney General for the Civil Rights Division Thomas Perez, at a recent discussion on elections issues at the University of Baltimore School of Law, explored an imminent threat to the right to vote – the challenge to the Voting Rights Act of 1965 in the upcoming Supreme Court case Shelby County v. Holder. Perez explained how the Voting Rights Act emerged from a long and difficult struggle, manifest especially in the events of Bloody Sunday, March 7, 1965. In signing the act – the “crown jewel” of civil rights legislation – President Lyndon Johnson expressed the importance of the vote, “the most powerful instrument ever devised by man for breaking down injustice.” Section 5 requires certain states and localities, mostly in the South, with long histories of racial discrimination in voting to obtain “preclearance” of any proposed changes to their elections procedures from the DOJ or a federal court in Washington, D.C. (See ACS’s Voting Rights Act Resources Page for more on the VRA and the Shelby County case.)

    Perez (pictured) emphasized that the struggle for equality and civil rights resembles a “marathon relay” for which “banishing the blight of racial discrimination in voting” is not yet complete. Although the Voting Rights Act has long enjoyed consistent bipartisan support, including reauthorization in 2006 by President Bush, it has recently come under intense assault. Having faced only eight challenges to its constitutionality between 1965 and 2010, the Act has since confronted ten lawsuits.

  • February 14, 2013
    Guest Post

    by Doug Kendall, founder and president, Constitutional Accountability Center. This piece is crossposted at CAC’s Text & History Blog.

    One of the glaring things revealed by a review of the briefs in Shelby County v. Holder is the dearth of serious constitutional scholars in the fray supporting the conservative attack on the Voting Rights Act. On Shelby County’s side are the predictable array of political scientists like Abigail Thernstrom, election policy hacks like Hans von Spakovsky, and Reagan-era war horses like John Eastman. But where are the leading conservative constitutional thinkers on this – Mike McConnell, Eugene Volokh, Randy Barnett, Gary Lawson, and Steve Calabresi?  None of these bright-light conservative names grace the briefs on behalf of Shelby County and, so far, their silence has been deafening in the public debate.  As University of Kentucky law professor Josh Douglas has pointed out over at PrawfsBlawg, it’s really hard to find a credible academic to provide “balance” to a panel discussion on Shelby (though Cato’s Ilya Shapiro has gamely offered to fill this void).