Saturday, January 25, 2014

PF Feb 2014 - Voting Rights Act Section 4 - Pro Position

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

For the introduction to this topic, click here.

What Violation?

Let's begin this discussion by answering the very basic question many of you have asked.  What part or parts of the constitution are violated by section 4 of the VRA? The simple answer is it violates the concept of federalism codified by the tenth amendment. Federalism is political recognition the states are an equal, independently governed federation which agree to share power between themselves and a national government. The constitution defines the limitations of the national government and defers all other powers to the individual states.  In addition, each state is recognized as having equal sovereignty with one another.  In the case of Shelby County v Holder, the court cited a specific and clear cost (burden) to federalism.

SCOTUS 2013:
The Voting Rights Act sharply departs from these basic principles. It requires States to beseech the Federal Government for permission to implement laws that they would otherwise have the right to enact and execute on their own. And despite the tradition of equal sovereignty, the Act applies to only nine States (and additional counties).That is why, in 1966, this Court described the Act as “stringent” and “potent,” Katzenbach, 383 U. S., at 308, 315, 337. The Court nonetheless upheld the Act, concluding that such an “uncommon exercise of congressional power” could be justified by “exceptional conditions.” Id., at 334. Pp. 9–12.

The reference to Katzenbach in the above quote is from Katzenbach v Morgan in which Section 4 of the VRA was originally challenged as unconstitutional in 1966. Clearly, as you can see, not only does the Act specifically deny nine states from changing their own voting laws without prior approval from the Justice Department, laws which fall under state's rights; but in limiting the rights of certain states and regions, the law also violates the equal sovereignty concept.  But the purpose of the law was to enforce the rights granted under the 14th amendment (which did give Congress the power to take such kinds of actions). Thus the Supreme Court in the Katzenbach case ruled the act constitutional, essentially because it was aimed at preventing specific actions, by specific states to deny minorities of their rights.  The Act did provide relief.  States or regions had a "bailout" procedure by which they could prove they were no longer subject to oversight and more importantly the key parts of the law were set to expire after a determined number of years. However, we now see, Congress merely voted to extend the expiration date each time, without significantly altering the standards used in section 4 which defined the criterion under which the nine states were subject to oversight.

SCOTUS 2013:
"In 1966, these departures were justified by the “blight of racial discrimination in voting” that had “infected the electoral process in parts of our country for nearly a century,” Katzenbach, 383 U. S., at 308. At the time, the coverage formula—the means of linking the exercise of the unprecedented authority with the problem that warranted it—made sense. The Act was limited to areas where Congress found “evidence of actual voting discrimination,” and the covered jurisdictions shared two characteristics: “the use of tests and devices for voter registration, and a voting rate in the 1964 presidential election at least 12 points below the national average.” Id., at 330. The Court explained that “[t]ests and devices are relevant to voting discrimination because of their long history as a tool for perpetrating the evil; a low voting rate is pertinent for the obvious reason that widespread disenfranchisement must inevitably affect the number of actual voters.” Ibid. The Court therefore concluded that “the coverage formula [was] rational in both practice and theory.” Ibid. Pp. 12–13. (3) Nearly 50 years later, things have changed dramatically.Largely because of the Voting Rights Act, “[v]oter turnout and registration rates” in covered jurisdictions “now approach parity. Blatantly discriminatory evasions of federal decrees are rare. And minority candidates hold office at unprecedented levels.”

Thus the Pro Position

The Pro recognizes the VRA as a necessary and effective tool in promoting minority participation in the election process.  In the years immediately following its passage, minority voting increased dramatically, especially in those regions which previously, due to discriminatory election laws, had limited minority participation. Despite its obvious "federalism cost", the act was seen as necessary in the interests of protecting the provisions of the 15th amendment.  However, as the attorneys of the Cato Institute explain, instead of expiring, it was expanded somewhat arbitrarily.

CATO 2013:
Section 5 was an emergency provision with an expected life of five years that instead has been repeatedly renewed. Every renewal became an occasion for expanding the VRA; never did Congress consider whether the law’s unprecedented reach should instead be reduced in recognition of its success. Even as black political participation increased, federal power over local affairs grew. In the 1970s, the government placed more groups and places into Section 5’s clutches. An arbitrary, careless change in the statistical trigger, for example, made three New York boroughs subject to preclearance even though black New Yorkers had been freely voting since the Fifteenth Amendment’s enactment in 1870, and had held municipal offices for decades. Hispanics, Asian Americans, American Indians, and Alaskan Natives became eligible for federal protection, even though their experience at the polls was not remotely comparable to that of southern blacks. In 1982, Congress rewrote what had been an innocuous preamble, Section 2, morphing it into a powerful tool to attack election practices anywhere in the nation that had the “result” of denying the right to vote on account of race. But Section 2 as rewritten guaranteed electoral equality in some absolute sense—undefined and indefinable. The obvious proportionality inquiry rests on profound misunderstandings about the “natural” distribution of various groups across the sociopolitical landscape. Racist exclusion should instead have been the concern.

In my opinion, to create an effective case, the Pro must decide on a strategy (or perhaps several) which addresses the resolution.  The resolution asks us to specifically debate whether or not section 4 of the VRA was correctly decided to be unconstitutional.  This tends to force both sides into a very narrow examination of a specific subset of a congressional act and pass judgement on a Supreme Court decision.  My experience in helping students deal with the earlier topic on Attorney-client Privilege, is the nuances and complexities of U.S. law are not easy topics.  Students rarely understand what they are arguing, citizen judges don't understand (which is why they hire lawyers in the first place) and those citizen judges who happen to be lawyers are plainly annoyed at having to listen to such cases.  I think, due to the complexity of the VRA and its history, the basic approach to managing the Pro position is simply regurgitate the facts which demonstrate how the preclearance formula of section 4 as established in 1965/66 and as amended were no longer applicable in 2013. The law has been overwhelmingly successful and the facts will show minority voting in nearly every corner of the country meets proportionality standards.  The burden of proof will certainly be on the Con to show that current proposals which were previously denied under the VRA, such as photo-identifications cards will harm minority participation.  As for redistricting, such gerrymandering has long been a tolerated (albeit oft challenged) means to protect political incumbency.  The famous case of Shaw v Reno challenged a form of racial gerrymandering which actually resulted in the election of the first minority representatives to Congress from North Carolina in that state's history.  The arguments are complex, difficult to evaluate and can easily be twisted to the advantage of both sides of this debate.  For this reason, I have chosen to examine the principle contention the VRA Section 4 is no longer a sufficient standard for determining preclearance necessity.

The VRA Burdens are Not Justified

It may appear, on face, the VRA violates the constitutional principles of federalism.  Nevertheless, there have been other laws or decrees which appear to violate the constitution.  These acts are upheld under the standard of "strict scrutiny" which basically says an exception is justified because it serves a greater purpose in compliance with the best interests of the United States. As long as such laws meet the strict scrutiny tests, they are considered constitutional because they are covered by a broader application of constitutional power granted to the government to guard the compelling interests of the nation.

Cornell Law :
Strict scrutiny is a form of judicial review that courts use to determine the constitutionality of certain laws.  To pass strict scrutiny, the legislature must have passed the law to further a "compelling governmental interest," and must have narrowly tailored the law to achieve that interest.

For example, a law aimed at curbing say, freedom of speech, may be upheld if there is a compelling government interest in doing so (e.g. laws which prevent disclosure of national security secrets).  The VRA violated federalism for a select number of states, but in the years in which it was enacted, the prevalence of minority oppression made it a compelling state interest to uphold the 14th and 15th amendments.

SCOTUS 2013:
In Northwest Austin, we stated that “the Act imposes current burdens and must be justified by current needs.” 557 U. S., at 203. And we concluded that “a departure from the fundamental principle of equal sovereignty requires a showing that a statute’s disparate geographic coverage is sufficiently related to the problem that it targets.” Ibid. These basic principles guide our review of the question before us...Over a hundred years ago, this Court explained that our Nation “was and is a union of States, equal in power, dignity and authority.” Coyle v. Smith, 221 U. S. 559, 567 (1911). Indeed, “the constitutional equality of the States is essential to the harmonious operation of the scheme upon which the Republic was organized.” Id., at 580.

The court opinion in the Shelby County v Holder case then explains quite clearly how its review of the VRA in 1966 confirmed the government's standards in section 4 were justified and sufficiently narrow to warrant court approval.  However, now, 50 years later, that is no longer the case.

Section 4 is Obsolete

Over the years, the Congress has continued to extend the sunshine provisions of the VRA while maintaining the relevance of section 4.  Additionally, the government claims that numerous forms of "second-generation" barriers to voting rights, including numerous forms of "vote dilution" are concentrated in the same states already isolated by the original coverage formula.  Shelby County challenged these justifications.

Rosdeitcher & Beha 2013:
In the Supreme Court, Shelby County argues first that Congress was unable to develop a record sufficient to show “‘the widespread and persisting’ pattern of constitutional violations and continuing alteration of discriminatory voting laws to circumvent minority legislation victories that supported preclearance in the first place [and as a result] Section 5’s federalism cost is too great.”[26]  It maintains that at most the legislative record shows scattered and limited interference insufficient to sustain Section 5 preclearance.  It also argues that Congress’s reliance on “second generation” barriers to voting such as vote dilution was improper because vote dilution does not violate the Fifteenth Amendment and the Court has never upheld Section 5 under the Fourteenth Amendment.  Shelby County argues further that preclearance only is directed to interference with ballot access and is not an appropriate remedy for practices that affect the weight of votes cast and that it claims can be effectively addressed by litigation under Section 2 of the Voting Rights Act. 

In examining, the claim of litigants of Shelby County, the Court concentrates directly on the viability of the original coverage formula criteria.

SCOTUS 2013:
Coverage today is based on decades-old data and eradicated practices. The formula captures States by reference to literacy tests and low voter registration and turnout in the 1960s and early 1970s. But such tests have been banned nationwide for over 40 years. §6, 84 Stat. 315; §102, 89 Stat. 400. And voter registration and turnout numbers in the covered States have risen dramatically in the years since. H. R. Rep. No. 109–478, at 12. Racial disparity in those numbers was compelling evidence justifying the preclearance remedy and the coverage formula.See, e.g., Katzenbach, supra, at 313, 329–330. There is no longer such a disparity. In 1965, the States could be divided into two groups: those with a recent history of voting tests and low voter registration and turnout, and those without those characteristics. Congress based its coverage formula on that distinction. Today the Nation is no longer divided along those lines, yet the Voting Rights Act continues to treat it as if it were.

Amazingly, while the Court does agree the government possessed a vast array of evidence that wide-spread discriminatory voting practices continue within the original jurisdictions, the criteria used to justify the extension of the act are no longer based on the current need.  The Court places the blame squarely on Congress.

SCOTUS 2013:
By the time the Act was reauthorized in 2006, there had been 40 more years of it. In assessing the “current need[]” for a preclearance system that treats States differently from one another today, that history cannot be ignored. During that time, largely because of the Voting Rights Act, voting tests were abolished, disparities in voter registration and turnout due to race were erased, and African-Americans attained political office in record numbers. And yet the coverage formula that Congress reauthorized in 2006 ignores these developments, keeping the focus on decades-old data relevant to decades-old problems, rather than current data reflecting current needs...If Congress had started from scratch in 2006, it plainly could not have enacted the present coverage formula. It would have been irrational for Congress to distinguish between States in such a fundamental way based on 40-year-old data, when today’s statistics tell an entirely different story. And it would have been irrational to base coverage on the use of voting tests 40 years ago, when such tests have been illegal since that time. But that is exactly what Congress has done...Congress could have updated the coverage formula at that time, but did not do so. Its failure to act leaves us today with no choice but to declare §4(b) unconstitutional. The formula in that section can no longer be used as a basis for subjecting jurisdictions to preclearance.

The litigants for Shelby County argued that despite the fact certain jurisdictions may continue to pose significant threats to minority voting rights, the link to the original criteria determined by Section 4 was no longer relevant and thus, the cost to federalism was unjustified.

Persily & Mann 2013:
For the majority, the critical vacuum in the record justifying the law was its disconnect to the coverage formula itself. In other words, regardless of whether Congress may have found in 2006 that the covered jurisdictions happened to pose greater threats to minority voting rights (something the majority and plaintiffs doubted), nevertheless, there was no connection between such findings and the trigger for coverage (e.g., literacy tests and low voter turnout in 1964, 1968 or 1972). As one of Shelby County’s lawyers colorfully put it at the conference, if Congress had picked jurisdictions out of a hat, the fact that they may have gotten the “right” jurisdictions by luck would not immunize the process by which those states were chosen. For the Court’s majority, maintenance of the age-old coverage formula posed the same constitutional problems.

Discriminatory Intent or Racially Disparate Impact

As described by Cato lawyer, Roger Clegg, a voting practice which on its surface is non-discriminatory, applied equally and not intended to be discriminatory is not considered racial discrimination and would not normally violate Section 2 of the Fifteenth Amendment.  However, at times, acts which lack discriminatory intent will produce racially disparate impacts.  For example, a law which forbids all prisoners (regardless of race) from voting could produce a racially disparate impact if eventually, a majority of prisoners consists of African Americans.

Clegg 2009:
In employment, for example, an employer who has required each of his employees to have a high school diploma, and who does not want to be sued for the racially disparate impact this criterion creates, has two choices: He can abandon the requirement (thus hiring employees he believes to be less productive) or he can keep the requirement but instruct his managers to meet racial hiring quotas (thus, perversely, engaging in the very discrimination that the statute supposedly is designed to ban). This latter tension—between the anti-race-conscious mandate of prohibiting disparate treatment and the race-conscious mandate of prohibiting disparate impact—was at the forefront of another civil rights case the Supreme Court decided last term, Ricci v. DeStefano. Justice Antonin Scalia’s concurrence in that case noted that, indeed, the tension is so strong that disparate impact statutes may violate the Constitution’s equal protection guarantee. We see the same phenomenon with respect to the Voting Rights Act. Some legitimate voting practices—for example, making sure that voters can identify themselves as registered-to-vote, U.S. citizens—will be challenged if they have a racially disparate impact; this problem is beyond the scope of this article. The other problem is central to it: Jurisdictions will be pressed to use racial gerrymandering—racially segregated districting—to ensure racially proportionate election results and thus, perversely, to engage in the very discrimination that is at odds with the underlying law’s ideals.

While the VRA eliminated racial gerrymandering intended to reduce the influence of a minority candidates and voters, some states began instituting a practice of "affirmative gerrymandering", by producing majority-minority districts designed to allow minority representation despite the evidence that such districts often tended to isolate and corral minorities.  While, the Supreme Court did rule purely racially based redistricting as unconstitutional, it is not always easy to distinguish between racial or political divisions.

Clegg 2009:
Note also that the VRA literally denies the equal protection of the laws by providing legal guarantees to some racial groups that it denies to others. A minority group may be entitled to have a racially gerrymandered district, or be protected against racial gerrymandering that favors other groups. At the same time, other groups are not entitled to gerrymander and indeed may lack protection against gerrymandering that hurts them. This is nothing if not treating people differently based on their race. Under the Constitution, no racial group should be guaranteed ‘‘safe’’ districts or districts where it has ‘‘influence’’ or some combination thereof unless all other groups are given the same guarantee—a guarantee that is impossible to give (even if it were a good idea to encourage racial obsession).

Pro Wrap-up

While the issues and laws behind this resolution are complex it seems reasonable to concur the Court rightfully ruled the VRA unconstitutional simply by carefully reading the majority opinion of the Court and the separate opinion of Justice Thomas who sides with the majority.  The Court had been hinting in several rulings that the provisions of the VRA as extended over the years were becoming increasingly costly in terms of state's rights.  The Cato Institute provided much of the argumentation which was used to support the position of Shelby County.  Look to those sources for additional support. The Pro should not advocate the VRA itself or any of the other sections should be abandoned or invalidated even though, ruling against section 4, effectively guts the criteria required to define which districts require preclearance under section 5.  A mechanism still exists under Section 2 to challenge election laws and indeed every law passed is subject to the provisions of the 14th and 15th amendments despite any perceived damage to the VRA as a result of the Supreme Court ruling in Shelby County v Holder.

Click here for the Con position


Syllabus, Supreme Court of the United States
Shelby County v. Holder, Attorney General, et al
October Term, 2013

Shelby County, Alabama v Eric H. Holder, Jr., et al
On Appeal from the U.S. Court of Appeals for the District of Columbia Circuit
Brief of Amicus Curiae Cato Institute In Support of Petitioners in Both Cases
Ilya Shapiro, Counsel of Record
Matthew B. Gilliam, Cato Institute

Reaffirmation or Requiem for the Voting Rights Act?
Copyright 1996, The American Civil Liberties Union

Supreme Court Preview: Constitutionality of the Preclearance and Coverage Provisions of the Voting Rights Act Reauthorization of 2006
Brennan Center For Justice at New York  University School of Law
February 15, 2013
Sidney Rosdeitcher, James J. Beha II

Shelby County v. Holder and the Future of the Voting Rights Act
Governance Studies, Brookings Institute
Nathaniel Persily and Thomas Mann, August 2013

Section 4 of the Voting Rights Act is Unconstitutional
South Carolina Law Review
Published July 7, 2013
Written by John Tamasitis

The Future of the Voting Rights Act after Bartlett and NAMUDNO
Cato Institute
Roger Clegg, 2009


  1. Replies
    1. You can't rush perfection.

    2. You call this perfection?/! This is cheating!

    3. Well, then you''re cheating too!

  2. Thank you so much for your continued effort to put posts out! I know I'd be half as prepared if it wasn't for you help. Do you think framework is going to be big in this debate?

    1. Not so much in my opinion. It is important to explain what the topic is about to the judge and stay focused on the debate about constitutionality.

  3. Amazing! This helps a ton :)

  4. Half of your stuff includes section 5 as well. How do you justify using section 5 because it seems that I could say any argument with section 5 is nontopical

    1. Section 4 is the "formula" to determine what states will be affected by section 5. It is topical because you can't have section 5 without section 4.


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