Monday, June 10, 2013

Shelby County Wants To Be Freed From Section 5 Of The Voting Rights Act - Supreme Court Decision Coming Soon

In Shelby County v  Holder, the Alabama county is asking the US Supreme Court to free it, and all other states affected, from Section 5 of the Voting Rights Act (VRA) which requires them to get pre-clearance from the Department of Justice  (DOJ) when it does things that affect people's ability to vote.

Alaska is also required to get pre-clearance form DOJ.  The case was heard in the US Supreme Court last February.   People who know more than I expect the decision to be announced sometime this month.

The Alaska Redistricting Board is hoping the decision will overturn Section 5 which requires them to get pre-clearance for any new redistricting plan before it can become adopted.  Indeed, the State of Alaska filed an amicus brief on behalf of Shelby County.  The Board had postponed finishing their plan until after the decision was made.  The Superior Court told them to get moving, but they've dawdled long enough that it's likely the decision will come out before they finalize their plan. 

A previous post has audio of the oral argument at the Supreme Court and a link to the transcripts.

What exactly is Section 5 of the Voting Rights Act (VRA) all about?

From the DOJ website:  (read this carefully, there will be a quiz)

Section 5 freezes election practices or procedures in certain states until the new procedures have been subjected to review, either after an administrative review by the United States Attorney General, or after a lawsuit before the United States District Court for the District of Columbia. This means that voting changes in covered jurisdictions may not be used until that review has been obtained. [That's the pre-clearance part.]

The requirement was enacted in 1965 as temporary legislation, to expire in five years, and applicable only to certain states. The specially covered jurisdictions were identified in Section 4 by a formula. The first element in the formula was that the state or political subdivision of the state maintained on November 1, 1964, a "test or device," restricting the opportunity to register and vote. The second element of the formula would be satisfied if the Director of the Census determined that less than 50 percent of persons of voting age were registered to vote on November 1, 1964, or that less than 50 percent of persons of voting age voted in the presidential election of November 1964. Application of this formula resulted in the following states becoming, in their entirety, "covered jurisdictions": Alabama, Alaska, Georgia, Louisiana, Mississippi, South Carolina, and Virginia, In addition, certain political subdivisions (usually counties) in four other states (Arizona, Hawaii, Idaho, and North Carolina were covered. It also provided a procedure to terminate this coverage.
Under Section 5, any change with respect to voting in a covered jurisdiction -- or any political subunit within it -- cannot legally be enforced unless and until the jurisdiction first obtains the requisite determination by the United States District Court for the District of Columbia or makes a submission to the Attorney General. [Pre-clearance] This requires proof that the proposed voting change does not deny or abridge the right to vote on account of race, color, or membership in a language minority group. If the jurisdiction is unable to prove the absence of such discrimination, the District Court denies the requested judgment, or in the case of administrative submissions, the Attorney General objects to the change, and it remains legally unenforceable.

What are the issues in Shelby County v Holder?

(This will be what I got from listening to the oral arguments and some internet research.  I'm not a lawyer.  Nor have I read all the briefs.  So take this for what it's worth.  I'd also note that these issues are intertwined, so there is some overlap.)

First, note that the law was temporary - for five years.  That was back in 1965.  But it's been renewed various times, the last time being 2006 (under Bush) when the Senate approved it 98-0 and the House 390 -33.

1.  One key objection is that the law still uses the 1965 formula.  Shelby County argued that
  • The laws and voting percentages in the formula are ancient history and none of the states still has them in place.  The problem is over.  Section 5 should be retired.
  • The old formula is just a way to keep sticking it to the original covered states and that other states have worse problems.  All the states, or none, should be covered.
The DOJ argued that while the original problematic laws are gone, the jurisdictions covered keep finding "second generation" discriminatory practices that restrict or otherwise make it harder for Blacks and other protected classes to vote.   They argued the original formula is still a good proxy for the states with the biggest problems.

2.  Things have improved since 1965 and there is no longer a need for pre-clearance.  

DOJ points to a study of discrimination that found the problem still serious that was used by Congress to justify renewing the VRA in 2006.

3.  "On face review" or "applied"?

As I understand this distinction, an on face review looks at the formula in general, for all the states covered, and questions whether the formula is still a reasonable one.  An applied test would look at Shelby County and determine if Shelby County is still discriminating.  Shelby County chose to make an on face challenge, which allows it to focus on other jurisdictions rather than on Shelby County.

Justice Sotomayor challenged this approach:
"You're asking us to do something, which is to ignore your record and look at
everybody else's."
Justice Kagan questions this on the grounds that Alabama is number 1 in successful Section 2 suits and number 2 for Section 5 enforcement actions. (p. 5 15-22)

4.   Is Section 2 just as good as Section 5 for dealing with discriminatory practices?
  •  Section 2's reactive remedies (you can file suit after the fact) works well enough making the extraordinary remedy of requiring pre-clearance of any voting law change unnecessary.
The DOJ argued that the deterrent effect was powerful and had made this an extremely effective piece of legislation.  Also, it was argued that while you could sue reactively to last minute changes such as moving polling places, the election would be over before it ever got to court and citizens would have been disenfranchised requiring far more disruptive and costly remedies than pre-clearance.
This was discussed in an article in the National Review.  
"Section 5 bars changes in voting-related policies not only when they have a discriminatory purpose but also when they have a discriminatory “effect.” So, for example, a voter-ID requirement can be blocked even if it is nondiscriminatory in its terms, application, and intent — so long as a federal bureaucrat finds it might be more likely statistically that members of one racial group versus another will not have the needed identification. "
I'm sorry, but this seems to me a blatant attempt to discriminate.  He sees nothing wrong with a discriminatory effect as long as it wasn't intended.  The crux here is that it's extremely difficult to prove intent.  So legislators can make all the discriminatory laws they want, as long as they say it was not their intent and they haven't left any evidence of that intent.  I also don't see the relevance because as I read the Section 2 factors to be considered by a court, effects seem to be included. 

And,  I can't find this argument in the oral arguments.  There's discussion by Shelby County about results versus effects (which isn't clear enough for me to understand).  The NAACP speaking for upholding the VRA as it is, argued:
"What we've seen in Section 2 cases is that the benefits of discrimination vest in incumbents who would not be there, but for the discriminatory plan.  And Congress, and specifically in the House Report, I believe it's page 57, found that Section 2 continues to be an inadequate remedy to address the problem of these successive violations."

5.  Is the problem the original discriminatory voter tests or discrimination?

 There was some discussion about the problem that the VRA was aimed at.  Shelby County argued that the original problems - the ones in the formula such as voting tests - were long gone and thus Section 5 was no longer needed.  The DOJ argued that the problem was discrimination.  Voting tests were an indicator of discrimination, that were gone, but discriminatory practices were regularly created and updated. 

There were a couple of terms that were brought up by Justices Scalia ("racial entitlement") and Roberts and Kennedy ("reverse engineering") that I think are well worth commenting on and I'll try to do that in a future post.  

Although this legislation was approved in 2006 98-0 in the Senate and 390-33 in the House, court observers think there is a good chance the conservatives on the Court will overturn Section 5.  The oral arguments suggest a clear 4-4 split* with Justice Kennedy sounding skeptical of continuing the VRA Section 5, but at least open to change his mind.  And the oral arguments were just a 76 minute window in a case with lots and lots of documents, so we'll just have to wait and see. 

*This, of course, assumes that Justice Thomas will go along with the other conservatives, since he didn't ask any questions. 

It would be ironic because Shelby County and Alabama have a clear record of discrimination.
Shelby County is in Alabama, a state whose record makes clear that voting discrimination persists. During the last reauthorization period, Alabama had 240 discriminatory voting laws blocked by Section 5 or remedied by Section 2, another portion of the VRA that prohibits discriminatory tests or devices and applies nationwide. Today, even though African-Americans constitute more than one-quarter of the population, Alabama has no African-American statewide elected officials. For years, Shelby County relied on at-large districts to minimize black influence. Only after settling a lawsuit brought under the Voting Rights Act did the county agree to institute single-member districts. In 2008, Calera, one of the county’s six municipalities, submitted a redistricting plan that eliminated the town’s sole majority-black district, again in violation of the Voting Rights Act.   [From The Brennan Center.]
Their strategy was to sue, not on the facts of their situation, but by claiming the formula, for all the states and localities affected, was no longer valid. 

"Racial Entitlement" and "Reverse Engineering" were the ways that Antonin Scalia was framing the Voting Rights Act Section 5 that Shelby County was trying to get rid of.

Finally, I said there'd be a quiz and I try to keep my word:

1.  What are the two formulas from the 1965 Voting Rights Act that, if met, require states to get preclearance?
2.  What actions require preclearance?
(Answers above in post.)

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