Tuesday, February 26, 2013

Alaska's Stake in Shelby County v. Holder - Before US Supreme Court Wednesday - Updated

[UPDATE Feb. 27 8:30am AK TimeSCOTUSBlog's coverage of the arguments before the court today suggests a majority appears ready to invalidate Section 5.]

[UPDATE Feb. 28 7:00am AK Time:  Alaska US Senator Mark Begich released this statement on the Voting Rights Act:
“I hope the Supreme Court will carefully consider the case made by Alaska Natives that we still need protections of the Voting Rights Act. I am especially concerned about protecting VRA in light of recent steps by the State and some legislators to create new barriers to voting. Unfortunately, there are still many obstacles when it comes to voting in Alaska and especially in rural Alaska where Native languages are still the primary language for elders.  The Voting Rights Act has protected thousands of Alaskans from voter disenfranchisement that does still persist today.”]


Alaska is one of 16 states required to get pre-clearance from the Department of Justice for their redistricting plans.  It's one of just seven states who are covered in their entirety by Section 5 of the Voting Rights Act (VRA).  The other states only have some jurisdictions that are covered.  

Alaska's Redistricting Board has been ordered to redraw their redistricting plan (already used in the 2012 election) because they drew it first with the VRA as their guide rather than using the Alaska Constitution as their guide.   If Section 5 of the VRA were to be thrown out, it would signifiantly change the redidistricting proceaa in Alaska. 

On Wednesday, February 27, the US Supreme Court hears a case that challenges the continuing validity of Section 5.



Here's a case overview from the NAACP's LDF (Legal and Educational Defense Fund):

Shelby County, Alabama v. Holder, et al.
On February 27, 2013, the United States Supreme Court will hold oral argument in Shelby County, Alabama v. Holder, et al.   Shelby County is challenging the constitutionality of the Voting Rights Act (VRA), one of our nation’s most effective civil rights laws. The NAACP Legal Defense and Educational Fund, Inc. (“LDF”) will argue before the court in defense of the Voting Rights Act and repre sents Defendant-Intervenors, including five Black ministers and a councilman from Shelby County whose district was eliminated, but later restored because of the VRA. Shelby County seeks to strike down the heart of theVoting Rights Act, Section 5, which requires jurisdictions with the worst histories of persistent racial discrimination in voting to obtain federal approval, or “preclearance” before any voting changes become legally enforceable. The process of preclearance ensures that proposed voting changes in these places do not harm the voting rights of voters of color. Shelby County seeks to invalidate Section 5 not only in Alabama, but in all of the 16 states that are covered either in whole or in part.
In 2008, Calera, a city in Shelby County, conducted a legally unenforceable election after it redrew its political boundaries without receiving the required preclearance. As a result, the city’s only Black councilman, Ernest Montgomery, lost his seat. Councilman Montgomery’s district consisted of 70% registered Black voters before Calera redrew its political boundaries. After the district was redrawn, registered Black voters were just 29.5% of the population. Because it did not comply with the Voting Rights Act, Calera was required to draw a nondiscriminatory redistricting plan and to conduct another election with the legally - approved plan. In this lawful election, Calera’s voters re-elected Mr. Montgomery

SCOTUS Blog discusses this case and explains that in a previous case - NAMUDNO - the Court did not invalidate Section 5, but it did hint that Congress should revisit the need for it, which Congress has not done. SCOTUS continued:
Moreover, the Court continued, the Act’s role in improving minority voting in the past does not, standing alone, mean that the preclearance requirement can or should remain in effect going forward:  rather, “the Act imposes current burdens and must be justified by current needs.”  And in particular, the Court emphasized, because the formula that the Act uses to determine which state and local governments must obtain preclearance appeared to the Court to be outdated, the problems that Section 5 was enacted to prevent are not necessarily most prevalent in the states that are required to obtain preclearance.  To the contrary, the Court explained, states that are covered by Section 5 have a lower gap between voter registration and turnout for white and black voters than the national average.
In response, Congress left the statute unchanged; it did not modify the coverage formula.  That set the stage for Wednesday’s case.
Shelby County, Alabama, is required to obtain preclearance for any changes to its voting procedures because Alabama has been covered by the Act since 1965.  In 2010, Shelby County filed papers asking a federal court to issue the ruling that the utility district did not get in NAMUDNO:  that Section 5 is unconstitutional.
- See more at: http://www.scotusblog.com/2013/02/court-to-return-to-constitutionality-of-voting-rights-act-in-plain-english/#sthash.PMHNvI0F.dpuf
Moreover, the Court continued, the Act’s role in improving minority voting in the past does not, standing alone, mean that the preclearance requirement can or should remain in effect going forward:  rather, “the Act imposes current burdens and must be justified by current needs.”  And in particular, the Court emphasized, because the formula that the Act uses to determine which state and local governments must obtain preclearance appeared to the Court to be outdated, the problems that Section 5 was enacted to prevent are not necessarily most prevalent in the states that are required to obtain preclearance.  To the contrary, the Court explained, states that are covered by Section 5 have a lower gap between voter registration and turnout for white and black voters than the national average. 
In response, Congress left the statute unchanged; it did not modify the coverage formula.  That set the stage for Wednesday’s case. 
Shelby County, Alabama, is required to obtain preclearance for any changes to its voting procedures because Alabama has been covered by the Act since 1965.  In 2010, Shelby County filed papers asking a federal court to issue the ruling that the utility district did not get in NAMUDNO:  that Section 5 is unconstitutional.
The kink in the current Alaska redistricting process stems from the fact that Alaska is also required to get pre-clearance for redistricting because of Section 5.  If the Board hadn't needed to maintain the existing number of Native districts in Alaska, they wouldn't have the conflict they now have between meeting the VRA and the State Constitutional requirements.  (That doesn't mean they wouldn't have had other problems.) 

So one issue that came up at the last Board meeting was the possibility that Sec. 5 would be thrown out by the US Supreme Court and they should wait to redraw their lines until that decision is published.

Of course, that doesn't prevent them from doing the first part the Alaska Supreme Court ordered - making a plan that complies with the Alaska State Constitution.  That would be step one in the Court mandated "Hickel Process."  Then, if Sec. 5 of the VRA is upheld, they could go on to make the necessary changes to their plan to comply with the Voting Rights Act.    If Sec. 5 is thrown out, I'm not sure what the next steps are.  Other sections of the VRA are not being challenged in this case.

If the Board did not retain the same number of Native districts, presumably Native organizations would go to court arguing that even though they didn't need pre-clearance, they are still are forbidden to discriminate.  Except the other parts of the VRA, if I understand this, are about intentional discrimination, which is harder to prove.  If they didn't come up with the same number of Native districts, it would also strongly suggest that they were less interested in not discriminating than in not having their plan rejected by the DOJ.  Once that threat was gone, well, we should just wait and see.

More on Shelby from Scotus Blog:
In its brief in the merits, Shelby County echoes the Court’s admonition in NAMUDNO that Section 5 imposes “current burdens,” which must be justified by “current needs.”  Even if the states covered by Section 5 may have discriminated in the past, it argues, that does not automatically mean that they are still discriminating now, and Congress shouldn’t have passed new legislation renewing Section 5 until 2031 unless it put together evidence showing that the extension of the law was actually necessary – which it did not.  And if some isolated problems do remain, there are other, less draconian remedies to combat them, such as filing a lawsuit under another provision of the VRA to challenge the discriminatory practice or procedure.  Finally, even if Congress did accurately identify some instances of racial discrimination in voting, Shelby County asserts, there is no guarantee that Section 5 will help:  because the criteria used to determine which states must comply with Section 5 use voter registration and turn-out data from the early 1970s, states that adopt discriminatory practices now may not be subject to Section 5 at all and vice versa. - See more at: http://www.scotusblog.com/2013/02/court-to-return-to-constitutionality-of-voting-rights-act-in-plain-english/#sthash.PMHNvI0F.dpuf
In its brief in the merits, Shelby County echoes the Court’s admonition in NAMUDNO that Section 5 imposes “current burdens,” which must be justified by “current needs.”  Even if the states covered by Section 5 may have discriminated in the past, it argues, that does not automatically mean that they are still discriminating now, and Congress shouldn’t have passed new legislation renewing Section 5 until 2031 unless it put together evidence showing that the extension of the law was actually necessary – which it did not.  And if some isolated problems do remain, there are other, less draconian remedies to combat them, such as filing a lawsuit under another provision of the VRA to challenge the discriminatory practice or procedure.  Finally, even if Congress did accurately identify some instances of racial discrimination in voting, Shelby County asserts, there is no guarantee that Section 5 will help:  because the criteria used to determine which states must comply with Section 5 use voter registration and turn-out data from the early 1970s, states that adopt discriminatory practices now may not be subject to Section 5 at all and vice versa.
Now maybe there is a higher standard for laws that require states to get permission from the federal government before they can do something like redistricting.  But I don't think that Congress is required to justify their laws through research.  If that were the case, it seems like the Defense of Marriage Act (DOMA), which is challenged in another case coming up before the Supreme Court would stand little chance of surviving.

But then there's the government's strategy (still from SCOTUS):
When Solicitor General Don Verrilli goes to the Court on Wednesday to defend Section 5, the government’s pleas to “trust Congress” may fall flat with a majority of the Court, which is likely to be genuinely frustrated that Congress hasn’t heeded the warnings that it issued in NAMUDNO four years ago.  Moreover, the oral argument comes just a few months after Chief Justice administered the oath of office to the nation’s first African-American president for the second time, which opponents of Section 5 read as an indication that the strict measures of the Voting Rights Act are unnecessary. - See more at: http://www.scotusblog.com/2013/02/court-to-return-to-constitutionality-of-voting-rights-act-in-plain-english/#sthash.PMHNvI0F.dpuf
When Solicitor General Don Verrilli goes to the Court on Wednesday to defend Section 5, the government’s pleas to “trust Congress” may fall flat with a majority of the Court, which is likely to be genuinely frustrated that Congress hasn’t heeded the warnings that it issued in NAMUDNO four years ago.  Moreover, the oral argument comes just a few months after Chief Justice administered the oath of office to the nation’s first African-American president for the second time, which opponents of Section 5 read as an indication that the strict measures of the Voting Rights Act are unnecessary.
Irony after irony.  In the DOMA case, the government will definitely not being arguing to trust Congress.  But the Obama argument seems to fall flat, because of the 16 states that need pre-clearance, most voted against Obama.  Based on a formula which included whether the states had 'tests' which served as obstacles to voting and looked at the percentage of eligible voters who actually voted.  Seven states are covered in their entirety:  Alabama, Alaska, Georgia, Louisiana, Mississippi, South Carolina, and Virginia.  Only Virginia voted for Obama.  The other nine states are have only a portion of their states covered by Sec. 5:  Arizona,  Hawaii, Idaho, North Carolina, California, Florida, Michigan, New York, South Dakota. Of these nine, five - California, Florida, Hawaii, Michigan, and New York voted for Obama.


In California's case,  Kings, Merced, Monterey, and Yuba counties are covered because, according to the California State Senate (I think) website:
Results of the 1970 census led to four California counties – Kings, Merced, Monterey, and Yuba – triggering Section 5 voter thresholds and falling under the protection of the Department of Justice. What did these counties have in common? Each was a largely rural county that housed a US military base. High numbers of minority soldiers drafted and mobilized for deployment to Vietnam, with low rates of voter participation skewed voting statistics and triggered Section 5 protections.
Three of the four counties voted for Obama.   There is a provision in the Act that allows for jurisdictions to bail out of Section 5.  According to the Leadership Conference:
The VRA rewards progress in these covered jurisdictions by allowing them to “bail out” or have their coverage under Section 5 terminated after achieving a clean record of nondiscriminatory voting practices for ten years.  This flexibility ensures that the geographic reach of Section 5 applies only to jurisdictions that continue efforts to discriminate in voting based on race. Not a single jurisdiction that has sought the opportunity to leave Section 5 coverage since 1982 has been turned down. 
The Supreme Court previously clarified the bailout provision in its ruling on NAMUDNO v. Holder in 2009. Since then, more than 125 jurisdictions have bailed out.
 They had a press conference with the author of an amicus brief in the Shelby County case who they describe this way:
"Gerry Hebert, attorney to 174 bailed out jurisdictions and author of an amicus brief filed by jurisdictions that have bailed out"
When Solicitor General Don Verrilli goes to the Court on Wednesday to defend Section 5, the government’s pleas to “trust Congress” may fall flat with a majority of the Court, which is likely to be genuinely frustrated that Congress hasn’t heeded the warnings that it issued in NAMUDNO four years ago.  Moreover, the oral argument comes just a few months after Chief Justice administered the oath of office to the nation’s first African-American president for the second time, which opponents of Section 5 read as an indication that the strict measures of the Voting Rights Act are unnecessary. - See more at: http://www.scotusblog.com/2013/02/court-to-return-to-constitutionality-of-voting-rights-act-in-plain-english/#sthash.PMHNvI0F.dpuf
Just three years ago, in a case called NAMUDNO v. Holder, the Court considered a challenge to the constitutionality of the preclearance requirement brought by a small utility district in Texas.  Although the utility district did not itself have any history of racial discrimination in voting, it was still required to get “preclearance” under Section 5 for any changes because it has an elected board.  When the Court issued its opinion, it declined to decide whether Section 5 was constitutional.  Instead, it held simply that the utility district could and should apply for a “bailout” from the preclearance requirement – that is, a declaration that it was no longer subject to Section 5 because it no longer discriminated against minority voters – which in turn eliminated the need for the Court to weigh in on the constitutionality of Section 5 in that case. - See more at: http://www.scotusblog.com/2013/02/court-to-return-to-constitutionality-of-voting-rights-act-in-plain-english/#sthash.PMHNvI0F.dpuf
 The link takes you to the amicus brief which discusses the bail out process.  Here's a short excerpt of the page brief:

Petitioner denies that there is a “nexus” between
bailout under the current Act and the coverage for-
mula, but this claim is contradicted by the structure
and history of the bailout provisions. Pet. Br. at 57.
The current requirements of the bailout provisions
reflect the criteria of the coverage formula: both
inquire as to the use of discriminatory “tests or
devices,” and look to voter registration rates and
voter turnout. 42 U.S.C. § 1973b(a), (b).  See Section
I.B. infra. Furthermore, throughout the history of the
Act, jurisdictions in different states of varying sizes,
political compositions and demographics have suc-
cessfully bailed out of Section 5, belying Petitioner’s
contention that bailout serves to tailor the scope of
[page]4
the coverage formula “only at the margin.” Pet. Br. at
54-55.  See  Section I.A.  infra
.
Petitioners also claim that the bailout option is in
fact illusory, and too burdensome and expensive for
most jurisdictions to achieve.  Pet. Br. at 54. But this
is decidedly not the experience of amici.

Amici Bailed Out Jurisdictions found the bailout
process both administratively feasible and cost-
effective.  Amici simply had to gather the necessary
information and data supporting bailout from records
we maintained in the ordinary course of business,
submit these materials to the U.S. Department of
Justice, and publicize the bailout in our community
media and post offices. After we were notified by the
Department of Justice that our jurisdiction had met
the bailout requirements, our legal counsel filed suit
and the necessary bailout papers in court. As for
expense, our experience is that the total cost of ob-
taining a bailout was approximately $5,000, which
includes staff time gathering the relevant data and
the filing of bailout documents in court.  See Section II
infra.
Further, contrary to Petitioner’s suggestion,
bailout is also achievable even if a jurisdiction discov-
ers during the bailout process that one or more of its
political subunits is not in full compliance with the
Act. In the course of the bailout process, numerous
jurisdictions have discovered that some of their
political subunits had inadvertently failed to timely
submit minor voting changes for Section 5 review, but
[page] 5
were able to resolve this issue with a prompt pre-
clearance submission of the changes to the Depart-
ment of Justice.  See Section III  infra

You can see the whole brief here.

Of course, this is an attorney who has expertise in bailing jurisdictions out from Section 5.  So if Section 5 were thrown out, he presumably would lose some business.  However, that doesn't invalidate what he writes.

But even if Alaska were to be released from Section 5 of the VRA, I would guess that the Board would still be required to redo the plan based on the standards of the Alaska Constitution.  


return to constitutionality of Voting Rights Act: In Plain English

On Wednesday, the Court will hear oral argument in a potentially historic case that has both civil rights activists and conservatives on the edge of their seats:  Shelby County v. Holder, a challenge t
- See more at: http://www.scotusblog.com/2013/02/court-to-return-to-constitutionality-of-voting-rights-act-in-plain-english/#sthash.PMHNvI0F.dpuf
Another provision of the Act, Section 5, was intended to prevent discrimination against African-American voters through more subtle means:  it prohibits specified jurisdictions – selected because they have a history of discrimination – from changing their election procedures unless and until they receive permission from either a special three-judge panel of a federal district court in Washington, D.C., or the Department of Justice – a provision known as the “preclearance” requirement. - See more at: http://www.scotusblog.com/2013/02/court-to-return-to-constitutionality-of-voting-rights-act-in-plain-english/#sthash.PMHNvI0F.dpuf
Another provision of the Act, Section 5, was intended to prevent discrimination against African-American voters through more subtle means:  it prohibits specified jurisdictions – selected because they have a history of discrimination – from changing their election procedures unless and until they receive permission from either a special three-judge panel of a federal district court in Washington, D.C., or the Department of Justice – a provision known as the “preclearance” requirement. - See more at: http://www.scotusblog.com/2013/02/court-to-return-to-constitutionality-of-voting-rights-act-in-plain-english/#sthash.PMHNvI0F.dpuf
Another provision of the Act, Section 5, was intended to prevent discrimination against African-American voters through more subtle means:  it prohibits specified jurisdictions – selected because they have a history of discrimination – from changing their election procedures unless and until they receive permission from either a special three-judge panel of a federal district court in Washington, D.C., or the Department of Justice – a provision known as the “preclearance” requirement. - See more at: http://www.scotusblog.com/2013/02/court-to-return-to-constitutionality-of-voting-rights-act-in-plain-english/#sthash.PMHNvI0F.dpuf
Another provision of the Act, Section 5, was intended to prevent discrimination against African-American voters through more subtle means:  it prohibits specified jurisdictions – selected because they have a history of discrimination – from changing their election procedures unless and until they receive permission from either a special three-judge panel of a federal district court in Washington, D.C., or the Department of Justice – a provision known as the “preclearance” requirement. - See more at: http://www.scotusblog.com/2013/02/court-to-return-to-constitutionality-of-voting-rights-act-in-plain-english/#sthash.PMHNvI0F.dpuf
Another provision of the Act, Section 5, was intended to prevent discrimination against African-American voters through more subtle means:  it prohibits specified jurisdictions – selected because they have a history of discrimination – from changing their election procedures unless and until they receive permission from either a special three-judge panel of a federal district court in Washington, D.C., or the Department of Justice – a provision known as the “preclearance” requirement. - See more at: http://www.scotusblog.com/2013/02/court-to-return-to-constitutionality-of-voting-rights-act-in-plain-english/#sthash.PMHNvI0F.dpuf

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