Monday, January 6, 2014

PF Feb 2014 - Voting Rights Act Section 4 - Intro.

Resolved: The Supreme Court rightly decided that Section 4 of the Voting Rights Act violated the Constitution.


Normally I begin a topic analysis by examining the definitions of the terminology in the resolution. For this topic, it seems somehow ridiculous to breakdown the meanings of the words and derive what the intent of the resolution may be.  It is remarkably straight forward and the meanings of the various words are easy to find online. Frankly, I don't expect a single argument to breakout over definitions.  Instead, I think for this topic I will forego the usual definitions section of the analysis and just talk about the intended debate.

The Voting Rights Act of 1965

To get a handle on the Voting Rights Act, it is probably appropriate to simply read the Wikipedia article on the subject.  In a nutshell (a big nutshell, perhaps) the 15th amendment of the Constitution, ratified in 1870 was intended to prevent states from denying voting rights to citizens on basis of "race, color or previous condition of servitude." Following the Civil War some states had taken steps to deny voting rights to blacks (and other person's of color) by establishing pre-requisites which were difficult for poor, non-land-owning blacks to meet.  For example, the use of poll taxes ensured only wealthier citizens could vote while the requirement to pass literacy tests ensured that many uneducated citizens would be denied a voice in elections.  Several such "devices" were legislated in various states designed to deny equal rights to former slaves and their descendants. In many states, white citizens were protected from the restrictions by laws which would allow them to vote if their grandfathers were previously registered voters (the famous "grandfather" clause).  Since prior to the passage of the 14th amendment (1868), slaves were not considered citizens or allowed to vote, their children and grandchildren would be denied the exemptions the whites enjoyed. Just to be clear, these restrictions were not only aimed at former slaves and blacks.  The laws denying voting rights affected many others such as native Americans and immigrants. Probably the most important provision of the 15th amendment was one which granted Congress power to enforce the 15th amendment through appropriate legislation. Despite the provisions of the amendment, the southern states enacted a series of measures aimed at not only denying the right to vote but also to completely segregate the black community from the majority whites.  This was the well-known "Jim Crow" south, protected by favorable court rulings and which persisted until the 1964 Civil Rights Act.

Since the Civil Rights Act had minimal power to protect voting rights for blacks, civil rights protests spread across the south seeking action by the federal government. In 1965, Martin Luther King led several well publicized marches which were violently broken up by police.  These confrontations continued into the spring of 1965 until a particularly brutal confrontation by Selma, Alabama police outraged the nation that witnessed the events on television. It was then that Congress with the powerful urging of President Lyndon Johnson, passed the Voting Rights Act.  The original act provided important safeguards to prevent racial (or language) discrimination with respect to voting rights.  In particular, section 2 provided protection aimed at preventing diluting minority votes (a kind of contra "tyranny by the majority" which prevents minority candidates and issues from gaining hold in at-large elections) by incorporating political subdivisions into its jurisdiction. Section 3 provided oversight language.  Section 4, the subject of this debate, specifically addressed the "tests" or "devices" used to deny voting rights.  Most significantly, the section contained what it is known as the "coverage formula" which defined the criteria by which certain states and subdivisions would be subject to the preclearance requirements of section 5.  Section 5, then declared that covered jurisdictions must gain federal approval (or preclearance) for any proposed changes to their voting laws.  The law provided additional language which protected non-English speaking minorities, various handicapped person protections, and other specific requirements both in the original bill and in its several revisions in subsequent years.

Significance of Section 4

Since section 4 of the Voting Rights Act provided the so-called coverage formula (actually criteria) it had the effect of singling out certain states and subdivisions for federal oversight.  These states were, of course, the ones which had a history of racial discrimination which extended to 1964, specifically: Alabama, Georgia, Louisiana, Mississippi, South Carolina, Virginia, and large parts of North Carolina. Later, Alaska, Arizona and Texas as well as portions of New York, South Carolina and Florida were added to the list.  Section 4, therefore, declared specific jurisdictions subject to the preclearance requirements of section 5.

Whitaker 2013:
Before implementing a change to “any voting qualification or prerequisite to voting, or standard, practice, or procedure with respect to voting”—which includes congressional redistricting plans—Section 5 required a covered jurisdiction to obtain “preclearance” approval for the proposed change. Covered jurisdictions could seek preclearance from either the U.S. Attorney General or the U.S. District Court for the District of Columbia. In order to be granted preclearance, the covered jurisdiction had the burden of proving that the proposed voting change “neither has the purpose nor will have the effect of denying or abridging the right to vote on account of race or color,” or membership in a language minority group.” Moreover, as amended in 2006, the statute expressly provided that its purpose was “to protect the ability of such citizens to elect their preferred candidates of choice.”

Because section 5 was designed to expire after a certain number of years, Congress voted to extend the expiration in 1970, 1975, and 1982.  In 2006, Congress voted to extend section 5 until the year 2031. Shelby County, Alabama (a covered jurisdiction) challenged the extension of section 5, a case which ultimately was argued before the Supreme Court and led to the decision which is the subject of this debate.

Whitaker 2013:
By a 5 to 4 vote, in Shelby County v. Holder, the U.S. Supreme Court decided that Congress’ decision in 2006 to reauthorize the Section 5 preclearance requirement, without modifying the coverage formula in Section 4(b), was unconstitutional. The Court determined that the coverage formula’s application to certain states and jurisdictions departed from the principle of equal sovereignty among the states without justification in light of current conditions. According to the Court, the coverage formula was “based on 40-year old facts having no logical relation to the present day.” Therefore, it concluded that the coverage formula could no longer be used as a basis for subjecting certain states and jurisdictions to the Section 5 preclearance requirement. 

By declaring the coverage formula of section 4b unconstitutional, the preclearance provisions of section 5 were effectively nullified.  It is interesting to note, the decision was made by a deeply divided court and so we can draw sound positions from the concurring and dissenting opinions cited by the justices.

The Debate

This debate will essentially repeat the opinions of the Supreme Court and allow the PF judge to decide if the decision was correct.  On a very obvious level we will be debating whether states have the right to place certain requirements on citizens' right to vote against the backdrop of the Civil Rights Movement which is still fresh in the minds of many PF judges.  The Court claimed the coverage formula was based on 40 year old facts which are no longer relevant.  However, we can see many attempts by states, even prior to the Supreme Court decision, attempting to require identification cards to vote, in an attempt to restrict presumed illegal resident voters, despite the chilling effect such laws have on legal immigrants.  I expect it will be an interesting debate for both Pro and Con.

Pro position is found here.


Section 4 of the Voting Rights Act
U.S. Department of Justice

Supreme Court Invalidates Key Part of Voting Rights Act; New York Times
Adam Liptak; June 25, 2013

Syllabus of the Court Opinion
No. 12–96. Argued February 27, 2013—Decided June 25, 2013

Congressional Redistricting and the Voting Rights Act: A Legal Overview
Congressional Research Service
L. Paige Whitaker, Legislative Attorney, August 30, 2013


  1. When are the pro/con positions going to be published?

    1. abe salle thera ma benchoth tikaloda champestha

    2. uhhhhh what does that mean

    3. A bunch of swearing in Hindi
      Hey B*sterd, your mother is a B*tch. The last two words are slang

  2. yeah when is it gna be posted!!!!!

  3. I understand how the Supreme Court ruled section 4(b) unconstitutional on the grounds that discrimination is not prevalent and that the statute is outdated. The court argued that the section also puts a burden on states, so it violates equal state sovereignty. However, which exact amendment/article of the constitution did Section 4(b) violate?

    1. It violated the 15th amendment, section 2 because it is not appropriate legislation: it is not appropriate because it does not meet the requirements necessary for that bill to be passed.

  4. Was the act struck down because the 10th Amendment was violated?

  5. what is section 4 exactly?

  6. Just to let you all know, I took a pretty big hit from the flu. I guess "herd immunity failed me" and schools are notorious conduits for disease. This has curtailed my ability to finish my research. I am on the mend and hope to publish PRO and CON position in the coming days. Sorry, for the delay.

  7. Not to bug, but this is the toughest resolution I have encountered and could really use the pro and. On positions. Thank you very much.

  8. Not to seem rude and demanding, but I was hoping that the PRO position could be posted by Friday or as soon as you can? I hope you feel better!!

  9. The Pro position is finally published. Sorry for the delay.


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