Judge John Bates

  • October 12, 2012

    by Jeremy Leaming

    Just as the nation is beset with invidious and widespread voter fraud, according to rightwing pundits and activists, there exists little, if any, intent among state lawmakers to suppress the vote of certain groups of people, like minorities.

    But in reality claims of voter fraud are wobbly, for there’s not much evidence it actually exists and racial discrimination whether overt or latent most certainly continues to hinder the nation’s long and difficult march toward full equality for all.

    Earlier this week a three-judge panel of the U.S. District Court for the District of Columbia blocked South Carolina’s voter ID law, R54, from being implemented for the 2012 elections. The federal court found that state election officials did not have sufficient time to implement the law in compliance with Section 5 of the Voting Rights Act, which prohibits states from implementing laws that have the intent or the effect “of denying or abridging the right to vote on account of race or color.” Section 5 requires states and localities with histories of denying minorities the right to vote, South Caroline is one such state, to get “pre-clearance” from the federal court in D.C. or the Department of Justice.   

    The federal court in South Carolina v. U.S. granted pre-clearance for S.C.’s voter ID law for future elections, but only after S.C. lawmakers had made revisions to the law to ensure it did not subvert the Voting Rights Act. In addition the court noted that racial discrimination still exists in this nation and highlighted the importance of the law’s Sec. 5 pre-clearance provision.

    In the majority opinion, Judge Brett Kavanaugh emphasized the continued need for Sec. 5, saying, “Racial insensitivity, racial bias, and indeed outright racism are still problems throughout the United States as of 2012. We see that reality on an all-too-frequent basis.”

    And the only reason the S.C. voter ID law won pre-clearance for future elections rested primarily on changes to the law that provided for a “reasonable impediment provision,” which is meant to “ensure that all voters of all races with non-photo voter registration cards continue to have access to the polling place to the same degree they did under” the state’s previous voter ID law. The reasonable impediment provision is supposed to allow voters who show up at their precincts without a photo ID to still cast a provisional ballot if they sign an affidavit saying why they could not obtain an ID, such as inability to travel to an office to get the ID, illness, work-related matters, among other subjective reasons. And the provisional ballot, according to how the law has been interpreted, will be counted unless evidence surfaces that an affidavit is false.

    But Media Matters’ Sergio Muñoz points out that some rightwing media are, perhaps not surprisingly, claiming that the decision is actually a ringing endorsement of the need to kill Sec. 5 of the Voting Rights Act.

  • September 28, 2011
    Guest Post

    By Mark Posner, Senior Counsel, Lawyers’ Committee for Civil Rights Under Law

    Recently, Judge John Bates of the U.S. District Court in Washington, DC, ruled that a core provision of the Voting Rights Act of 1965 – the Section 5 “preclearance” requirement – remains a constitutional exercise of Congress’ anti-discrimination authority under the Fourteenth and Fifteenth Amendments. This was a major victory in our nation’s ongoing efforts to “banish the blight of racial discrimination in voting.”

    This challenge to the constitutionality of Section 5 was brought by Shelby County, Ala., a largely white suburb of Birmingham. In rejecting the County’s arguments, Judge Bates agreed with an earlier unanimous decision, by a three-judge panel of the D.C. District Court (Nw. Mun. Util. Dist. No. One v. Holder, 573 F. Supp. 2d 221 (D.D.C. 2008)), which likewise upheld the constitutionality of Section 5, in a case brought by a local Texas utility district. That earlier decision, however, was vacated in 2009 when the Supreme Court decided that the utility district could pursue a statutory “bailout” from Section 5 coverage. Unlike the Texas utility district, Shelby County freely admitted that it has a recent history of voting discrimination that disqualified it from “bailing out.”

    Section 5 requires states and localities with a history of discrimination in voting – mostly in the South and Southwest – to obtain federal preclearance before implementing any changes in a voting “standard, practice, or procedure.” Preclearance is obtained by demonstrating, either to the Attorney General or the D.C. District Court, that the change does not have a discriminatory purpose or effect.

    Congress enacted the preclearance procedure in 1965 after it found that certain jurisdictions with a history of voting discrimination often were devising new discriminatory voting practices when old ones were struck down by the federal courts. Thereafter, Congress reauthorized Section 5 four times, in 1970, 1975, 1982, and, most recently, in 2006, each time finding that voting discrimination in the covered jurisdictions had remained high. Section 5 has prevented hundreds of discriminatory voting changes from going into effect, and has deterred countless others from ever being enacted.

    In the Shelby County case, Judge Bates confronted the fundamental question of what legal standard should be used to determine whether, as Shelby County claimed, Congress had exceeded its authority in reauthorizing Section 5 for 25 years in 2006. Shelby County invoked recent Supreme Court holdings that, at least as to certain Fourteenth Amendment legislation, “[t]here must be a congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end.”  In so doing, the County proposed a standard that would effectively preclude Congress from renewing effective antidiscrimination laws. The United States and defendant-intervenors (represented by civil rights organizations and law firms, including the Lawyers’ Committee for Civil Rights Under Law, the ACLU, and the NAACP Legal Defense Fund) argued that, in its prior rulings in 1966 and 1980 upholding Section 5, the Supreme Court held that Congress may “use any rational means to effectuate the constitutional prohibition of racial discrimination in voting.”