• February 26, 2013
    Guest Post

    by Gabriel J. Chin, Professor of Law, University of California Davis School of Law. This post is part of an ACSblog symposium on Shelby County v. Holder.

    Tomorrow, the Court will hear argument in Shelby County, Alabama v. Holder, which raises the question of the continuing validity of the preclearance requirement of Section 5 of the Voting Rights Act.

    Under Section 5, electoral changes in covered jurisdictions are suspended until the Attorney General or the U.S. District Court for the District of Columbia preclears them by determining that they have neither the purpose nor effect of denying or abridging the right to vote on account of race or color.  The specific issue is whether circumstances in the covered jurisdictions have changed so dramatically that Section 5 is no longer warranted; the Court suggested as much in their 2009 decision in Northwest Austin Municipal Utility District Number One (NAMUDNO) v. Holder

    I strongly disagree, and believe that a facial challenge is improper because Section 5 is clearly permissible in federal elections.  As important and ominous as Shelby County is, there is a larger question about the Court’s reasoning which has the potential to undermine many other laws and constitutional principles protecting civil rights. 

    The Court’s logic in NAMUDNO seems to be this: There was a problem with discrimination against racial minorities at the ballot box, particularly in certain jurisdictions.  Section 5 and other parts of the Voting Rights Act largely fixed that problem.  Because covered jurisdictions are no longer disproportionately proposing electoral rules or districting maps that have the purpose or effect of disadvantaging minority voters, Section 5 may have outlived its usefulness.  Laws must be necessary and proper to solve problems, not non-problems, or former problems. (Many of these facts are doubtful, but I am concerned here primarily with the Court’s logic).

  • February 26, 2013
    Guest Post

    by Ryan P. Haygood, Director of LDF’s Political Participation Group, and part of LDF’s litigation team in Shelby County, Alabama v. Holder. LDF Special Counsel Debo P. Adegbile will present oral argument on behalf of defendant-intervenors in this case, including LDF’s clients, five Black ministers and Councilman Ernest Montgomery. In 2006, the City of Calera, which lies within Shelby County, enacted a discriminatory redistricting plan that was rejected by the Department of Justice under Section 5, leading to the loss of the city’s sole Black councilman, Mr. Montgomery.  Because of Section 5, however, the Department of Justice required Calera to redraw its electoral boundaries in a nondiscriminatory manner and conduct another election in which Mr. Montgomery regained his seat. This post is part of an ACSblog symposium on Shelby County v. Holder.

    The United States Supreme Court will hear oral argument tomorrow in Shelby County, Alabama v. Holder, one of the most important voting rights cases of our generation. 

    In the case, Shelby County seeks to tear out the heart of the Voting Rights Act, Section 5. The Voting Rights Act is widely regarded as the most successful piece of civil rights legislation -- if not any legislation -- ever passed. It is for this reason that the Supreme Court, through an unbroken line of cases, has four times over four decades upheld the constitutionality of the Voting Rights Act.

    At oral argument, the Court will focus on two key questions: (1) whether voting discrimination persists to a degree that Section 5 is still needed; and, (2) whether that discrimination remains concentrated in the places covered by Section 5.

    The answer to both queries is yes for two reasons.

    First, in reauthorizing Section 5 in 2006, Congress identified the areas of the country with the worst histories of voting discrimination -- those places where persistent and adaptive discrimination has continued from the past through to the present and, which has proven particularly difficult to dislodge over time through case-by-case litigation. 

    During the 2006 reauthorization review, Congress assembled a virtually unprecedented legislative record that closely examined the evidence to determine whether Section 5 is still needed. This analysis was careful, detailed, and included a wide range of views.  Congress received more testimony and information about the voting experience, both in and outside the places covered by Section 5, than it had during any of the previous reauthorizations. Over 10 months in 2005-2006, the House and Senate Judiciary Committees held a combined 21 hearings, received testimony from more than 90 witnesses—including state and federal officials, litigators, scholars, and private citizens—both for and against reauthorization, and compiled a 15,000 page record.  Representative James Sensenbrenner, then-Chair of the House Judiciary Committee, described the record as “one of the most extensive considerations of any piece of legislation that the United States Congress has dealt with in the 27 ½ years” that he had served in Congress.


  • 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 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 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.