Voting rights

  • February 25, 2013

    by Jeremy Leaming

    One of the themes running through our blog symposium on the constitutional challenge to the Voting Rights Act’s integral enforcement provision, Section 5, centers on the fallacious claim that racial discrimination in voting has largely been eradicated so it’s time to significantly scale back one of the nation’s greatest civil rights laws.

    For example, West Virginia University College of Law Professor Atiba Ellis writes that it’s an “appealing” but false premise that racial discrimination is a “relic. Or as New York Law School Professor Deborah Archer notes in her post, the Voting Rights Act has helped stop very recent attempts in the states and towns covered by Section 5, mostly in the South, to implement schemes to suppress the minority vote. Archer concluded by citing Civil Rights hero U.S. Congressman John Lewis who has warned that history teaches us that “popular rights and democratic rights can be reversed ….”

    Rep. Lewis (D-Ga.) in a Feb. 24 column for The Washington Post provides some context of his involvement in “Bloody Sunday,” where he and many other peaceful protesters were brutally beaten by Alabama state troopers. The marchers from Selma to Montgomery, Lewis noted, were taking action to highlight the need for voting rights protections in the state. The brutish actions of Alabama officers against the protesters certainly helped grab the nation’s attention and not long thereafter President Lyndon Johnson pushed for a voting rights measure, which would eventually become law.

    Lewis (pictured) says it is fantastical to believe that all is well in the jurisdictions covered by Section 5. (Those jurisdictions must get “preclearance” from the Department of Justice or a federal court in Washington, D.C. for any changes to their voting laws and procedures. See the ACS Voting Rights Resource Page, for more information about the law and the case challenging it, Shelby County v. Holder.)

  • February 25, 2013
    Guest Post

    by Atiba R. Ellis, Associate Professor, West Virginia University College of Law. This post is part of an ACSblog symposium on Shelby County v. Holder.

    In Shelby County v. Holder, the opponents of Section 5 of the Voting Rights Actargue that this provision acts as a bludgeon that crushes the ability of the covered jurisdictions to legislate freely concerning the electoral process. The premise of this argument is that the America – and especially the jurisdictions covered by Section 5 – has triumphed over the problem of race. The voter suppression that existed in 1965 no longer exists.  An America that can elect an African-American president no longer needs to micromanage the election processes of certain states and localities on the basis of race. The opponents’ claim is that we live in a post-racial world, and a Congress that fails to recognize this has overstepped its constitutional role. 

    These two premises – that race is a relic of the past and that Congress has overreached its power to manage the electoral process – are false.

    Yet it is appealing to believe that we as a country have triumphed over the problem of race. This narrative tempts all of us, liberals and conservatives, to move on to other problems and feel good about ourselves. For the political right, if race is no longer a problem, then the ridicule conservatives suffer because they are typecast as being “bad on race” is no longer valid. For the political left, the triumph over race represents the realization of the liberal vision of racial harmony. The end effect is that once we believe this view, we avoid race discussions and eschew race-conscious remedies despite the facts. 


  • February 25, 2013
    Guest Post

    by Deborah N. Archer, Associate Dean for Academic Affairs and Professor of Law, New York Law School. This post is part of an ACSblog symposium on Shelby County v. Holder.

    No law has been more critical in advancing voting rights for all Americans than the Voting Rights Act of 1965. When Congress first enacted the Voting Rights Act, it concluded that case-by-case litigation had been wholly ineffective in guaranteeing African-Americans the right to vote and that nothing short of a prophylactic remedial scheme would succeed in eradicating the “insidious and pervasive evil which had been perpetuated in certain parts of our country.” (South Carolina v. Katzenbach, 383 U.S. 301, 309 (1966).) The heart of the Voting Rights Act – the strong medicine that has done so much to protect the voting rights acts of people of color – is Section 5, which prohibits covered jurisdictions from implementing new voting standards, practices or procedures unless the proposed change has been “pre-cleared” by the Department of Justice or the United States District Court for the District of Columbia. (42 U.S.C. §1973(c)(a)) The law places the burden on those covered jurisdictions to prove that any proposed changes will not limit minority voting rights.

    From the moment Section 5 was first enacted, jurisdictions that fell within its purview depicted the legislation as an illegitimate intrusion by an all-powerful federal government on state and local sovereignty. In Shelby County v. Holder, Shelby County insists that the Act’s pre-clearance provisions are no longer neededbecause the Act has succeeded in doing so much good, and that covered jurisdictions now should be relieved from the “burdens” of pre-clearance. Never mind that as recently as 2008 Shelby County itself was found to have engaged in racially discriminatory conduct. The truth is that across the country, states, cities and counties continue to enact practices and procedures that suppress, dilute, and infringe upon minorities’ constitutional right to vote. The harms that Section 5 was designed to counter remain, making the law as critical as it has ever been.


  • February 22, 2013
    Guest Post

    by Bertrall Ross, Assistant Professor of Law, U.C. Berkeley School of Law. This post is part of an ACSblog symposium on Shelby County v. Holder.

    Seventy-five years ago, a plurality of the Supreme Court in an extraordinary footnote to a rather ordinary case announced a new theory of judicial review. Under this new theory, the Supreme Court would closely scrutinize both laws that imposed restrictions on the ordinary operation of the political process and laws that discriminated against discrete and insular religious, national, or racial minorities. The underlying premise of this theory of judicial review was that democratic actors could not be trusted to either maintain an open and inclusive political process or to protect the rights and defend the interests of politically marginalized minorities. The Court simply presumed that the democratic process did not operate properly. This democratic dysfunction arising from a tyranny of the majority meant that democratic rights and the rights of the politically marginalized were entitled to special judicial protection from the majoritarian processes.

    It was this judicial presumption about the dysfunction of politics that seemed to animate the asymmetrical treatment of congressional authority to enforce the Fourteenth Amendment in the 1960s. So long as Congress used its power to enhance the equal protection rights, and particularly the voting rights, of racial minorities, the Court gave great deference to its actions. But if ever it were to decide to use this power to dilute the equal protection rights of these minorities, the Court announced that the laws would not be treated with the same deference. Instead, such law would likely be subject to intense scrutiny and ultimate judicial invalidation. The lesson of this era seemed to be that democracy could not be trusted to protect minorities and their political rights. 

    As the Supreme Court prepares to hear oral argument in Shelby County v. Holder, a different form of democratic distrust seems to have emerged in Supreme Court doctrine.  Minorities such as lesbians and gay men that would have been considered politically marginalized are now viewed as too politically powerful. Laws that benefit racial minorities are suspected to be the product of racial politics that democratic actors adopt to please the organized and important racial constituencies. And perhaps most relevant to the case of Shelby County, a Congress once given great leeway to enhance the equal protection rights of minorities through its Fourteenth Amendment enforcement authority, now has similar actions subject to much more rigorous scrutiny in the form of a congruence and proportionality test. 

  • February 22, 2013
    Guest Post

    by Spencer Overton, Professor of Law at The George Washington University Law School and author of the book Stealing Democracy: The New Politics of Voter Suppression. This post is part of an ACSblog symposium on Shelby County v. Holder.

    Many who assert the U.S. Supreme Court in Shelby County v. Holder should uphold the preclearance and coverage provisions of Section 5 of the Voting Rights Act disagree with the Court’s 2008 decision in Crawford v. Marion County Bd. of Elections that upheld Indiana’s photo identification requirement.  On the other hand, those who oppose Section 5 cite Crawford as a reason Section 5 is allegedly unconstitutional. 

    An honest reading of Crawford, however, provides five reasons the Court should now defer to Congress’s determinations regarding the coverage and preclearance provisions of Section 5. 

    1.  Legal Issue:  In Crawford, the U.S. Supreme Court ruled that the Indiana ID requirement did not unconstitutionally burden the right to vote (the Court did not address whether ID discriminated on the basis of race).  The plaintiff in Shelby County seeks to undermine Congress’s authority under the 14th and 15th Amendments by making the novel claim that the coverage provision violates a “principle of state equality” -- but the U.S. Constitution contains no such requirement

    2.  Record:  In Crawford, the U.S. Supreme Court deferred to Indiana’s interest in preventing fraud despite the fact “[t]he record contain[ed] no evidence of any such fraud actually occurring in Indiana at any time in its history.”  In Shelby County v. Holder, the Court should defer to a 2006 Congressional reauthorization process that featured 21 hearings, over 90 witnesses, and a 15,000-page record that showed that contemporary voting discrimination remains concentrated in covered states.  For example, Congress found that the Justice Department lodged over 700 objections to voting changes enacted by covered jurisdictions since Congress previously reauthorized Section 5 in 1982.  Congress also considered the “Katz Study,” which showed that covered jurisdictions account for less than 25 percent of the nation’s population but 56 percent of the successful published Section 2 voting rights cases.  The percentage of documented elections with extreme white bloc voting was 80.7 percent in covered jurisdictions, compared to 40.9 percent in uncovered jurisdictions.