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.
The Con PositionDespite the fact this topic appears to be a very narrow evaluation of whether the Supreme Court was correct in deciding the VRA Section 4 was unconstitutional, the topic is very complex. Like the Attorney-Client Privilege resolution several months ago, topics which involve legal matters tend to be misunderstood by students and judges alike and those few judges who are actually lawyers, bite their tongues in silence over debates which fail to properly convey the nuances of U.S. law. And how can it be, that all of the complexity of a case like this can truly be conveyed in a few minutes of speech time? The fact is, the Supreme Court ruled a portion of section 4 unconstitutional which effectively disarms section 5 requiring preclearance of changes to election laws for select jurisdictions.
There were some in the House, and there may be some in the Senate, who argue that the act is no longer needed, that the protections of section 5's "preclearance'' requirement" -- a requirement that ensures certain States are upholding the right to vote -- are targeting the wrong States. Unfortunately, the evidence refutes that notion. Of the 1,100 objections issued by the Department of Justice since 1965, 56 percent occurred since the last reauthorization in 1982. Over half have occurred since 1982. So despite the progress these States have made in upholding the right to vote, it is clear that problems still exist.There are others who have argued we should not renew section 203's protection of language minorities. These arguments have been tied to debates over immigration and they tend to muddle a noncontroversial issue -- protecting the right to vote -- with one of today's most contentious debates. But let's remember, you cannot request language assistance if you are not a voter. You cannot be a voter if you are not a citizen. And while voters, as citizens, must be proficient in English, many are simply more confident that they can cast ballots printed in their native languages without making errors. It is not an unreasonable assumption.A representative of the Southwestern Voter Registration Project is quoted as saying: Citizens who prefer Spanish registration cards do so because they feel more connected to the process; they also feel they trust the process more when they understand it. These sentiments -- connection to and trust in our democratic process -- are exactly what we want from our voting rights legislation.Our challenges, of course, do not end at reauthorizing the Voting Rights Act. We have to prevent the problems we have seen in recent elections from happening again. We have seen political operatives purge voters from registration rolls for no legitimate reason, prevent eligible ex-felons from casting ballots, distribute polling equipment unevenly and deceive voters about the time, location, and rules of elections. Unfortunately, these efforts have been directed primarily at minority voters, the disabled, low-income individuals, and other historically disenfranchised groups.
It can be argued the single most important duty of Congress is protect the American people's right to vote. The right to vote is the most important right because it has the power to protect all other rights. Fortunately, the U.S. Congress seems to get this and they have worked to ensure that the preeminent of all rights is properly guarded, especially since the Reconstruction amendments were passed. In fact, this is a key point for the Con position. There is no greater right and any actions which threatens the efficacy of the vote or can potentially disenfranchise a group of voters, must be prevented.
Right to Vote Under Attack TodayIt may not be difficult to imagine that people are kept from voting by unfair laws, threats or fraud in nations where governments are less stable or less democratic than our own. However, politicians have always looked for every advantage to promote their power and ensure their own success and the even in our country, there are literally hundreds of examples of attempts to control the election process to political advantage - even within the last few years.
Since January, more than a dozen states have advanced new voting measures. Now, some of these new laws are currently under review by the Justice Department, based on our obligations under the Voting Rights Act. Texas and South Carolina, for example, have enacted laws establishing new photo identification requirements that we are reviewing. We’re also examining a number of changes that Florida has made to its electoral process, including changes to the procedures governing third-party voter registration organizations, as well as changes to early voting procedures, including the number of days in the early voting period.
Prior to the Supreme Court ruling in Shelby County v Holder, in a 2011 speech in Austin, Texas, Eric Holder explained how voting rights continue to be challenged and threatened.
Despite the long history of support for Section 5, this keystone of our voting rights laws is nowbeing challenged five years after its reauthorization as unconstitutional in no fewer than five lawsuits. Each of these lawsuits claims that we’ve attained a new era of electoral equality, that America in 2011 has moved beyond the challenges of 1965, and that Section 5 is no longer necessary. I wish this were the case. The reality is that -- in jurisdictions across the country -- both overt and subtle forms of discrimination remain all too common. And we don’t have to look far to see recent proof. For example, in October, the Justice Department objected to a redistricting plan in East Feliciana Parish, Louisiana, where the map-drawer began the process by meeting exclusively with white officeholders -- and never consulted black officeholders. The result was a map that diminished the electoral opportunity of African Americans. After the Justice Department objected, the Parish enacted a new, non-discriminatory map. And, here in Texas, just two months ago, the Department argued in court filings that proposed redistricting plans for both the State House and the Texas Congressional delegation are impermissible, because the state has failed to show the absence of discrimination. The most recent Census data indicated that Texas has gained more than 4 million new residents -- the vast majority of whom are Hispanic -- and that this growth allows for four new Congressional seats. However, this State has proposed adding zero additional seats in which Hispanics would have the electoral opportunity envisioned by the Voting Rights Act. Federal courts are still considering this matter, and we intend to argue vigorously at trial that this is precisely the kind of discrimination that Section 5 was intended to block. To those who argue that Section 5 is no longer necessary -- these and other examples are proof that we still need this critical tool to combat discrimination and safeguard the right to vote.
Justice Ginsburg, writing for the dissent in the ruling on Shelby County v Holder notes that prior to the reauthorization of the act in 2006, Congress conducted lengthy investigations and hearings on whether or not reauthorization was justified. In other words, they wanted to determine if any discriminatory actions were still a problem in election law, especially in those jurisdictions previously meeting the coverage criteria in section 4 of the VRA.
Recognizing that large progress has been made, Congress determined, based on a voluminous record, that the scourge of discrimination was not yet extirpated. The question this case presents is who decides whether, as currently operative, §5 remains justifiable,1 this Court, or a Congress charged with the obligation to enforce the post-Civil War Amendments “by appropriate legislation.” With overwhelming support in both Houses, Congress concluded that, for two prime reasons, §5 should continue in force, unabated. First, continuance would facilitate completion of the impressive gains thus far made; and second, continuance would guard against backsliding. Those assessments were well within Congress’ province to make and should elicit this Court’s unstinting approbation...In the long course of the legislative process, Congress“amassed a sizable record.” Northwest Austin Municipal Util. Dist. No. One v. Holder, 557 U. S. 193, 205 (2009).See also 679 F. 3d 848, 865–873 (CADC 2012) (describing the “extensive record” supporting Congress’ determination that “serious and widespread intentional discrimination persisted in covered jurisdictions”). The House and Senate Judiciary Committees held 21 hearings, heard from scores of witnesses, received a number of investigative reports and other written documentation of continuing discrimination in covered jurisdictions. In all, the legislative record Congress compiled filled more than 15,000 pages.H. R. Rep. 109–478, at 5, 11–12; S. Rep. 109–295, at 2–4, 15. The compilation presents countless “examples of flagrant racial discrimination” since the last reauthorization; Congress also brought to light systematic evidence that “intentional racial discrimination in voting remains so serious and widespread in covered jurisdictions that section 5 preclearance is still needed.” 679 F. 3d, at 866.
Below, I include the full text of examples cited in the Ginsburg dissent. I think a few of these could serve to illustrate the extent of ongoing problem VRA section 5 attempts to manage.
Set out below are characteristic examples of changes blocked in the years leading up to the 2006 reauthorization:
- In 1995, Mississippi sought to reenact a dual voter registration system, “which was initially enacted in 1892 to disenfranchise Black voters,” and for that reason, was struck down by a federal court in 1987. H. R. Rep. No. 109–478, at 39.
- Following the 2000 census, the City of Albany,Georgia, proposed a redistricting plan that DOJ found to be “designed with the purpose to limit and retrogress the increased black voting strength . . . in the city as a whole.” Id., at 37 (internal quotation marks omitted).
- In 2001, the mayor and all-white five-member Board of Aldermen of Kilmichael, Mississippi, abruptly canceled the town’s election after “an unprecedented number” of African-American candidates announced they were running for office.DOJ required an election, and the town elected its first black mayor and three black aldermen. Id., at 36–37.
- In 2006, this Court found that Texas’ attempt to redraw a congressional district to reduce the strength of Latino voters bore “the mark of intentional discrimination that could give rise to an equal protection violation,” and ordered the district redrawn in compliance with the VRA. League of United Latin American Citizens v. Perry, 548 U. S. 399, 440 (2006). In response, Texas sought to undermine this Court’s order by curtailing early voting in the district, but was blocked by an action to enforce the §5 preclearance requirement. See Order in League of United Latin American Citizens v. Texas, No. 06–cv–1046 (WD Tex.), Doc. 8.
- In 2003, after African-Americans won a majority of the seats on the school board for the first time in history, Charleston County, South Carolina, proposed an at-large voting mechanism for the board.The proposal, made without consulting any of the African-American members of the school board, was found to be an “‘exact replica’” of an earlier voting scheme that, a federal court had determined,violated the VRA. 811 F. Supp. 2d 424, 483 (DDC 2011). See also S. Rep. No. 109–295, at 309. DOJ invoked §5 to block the proposal.
- In 1993, the City of Millen, Georgia, proposed to delay the election in a majority-black district by two on the city council while the neighboring majority white district would have three representatives. 1 Section 5 Hearing 744. DOJ blocked the proposal. The county then sought to move a polling place from a predominantly black neighborhood in the city to an inaccessible location in a predominantly white neighborhood outside city limits. Id., at 816.
- In 2004, Waller County, Texas, threatened to prosecute two black students after they announced their intention to run for office. The county then attempted to reduce the availability of early voting in that election at polling places near a historically black university. 679 F. 3d, at 865–866.
- In 1990, Dallas County, Alabama, whose county seat is the City of Selma, sought to purge its voter rolls of many black voters. DOJ rejected the purge as discriminatory, noting that it would have disqualified many citizens from voting “simply because they failed to pick up or return a voter update form, when there was no valid requirement that they do so.” 1 Section 5 Hearing 356.
Over the years, we’ve seen all sorts of attempts to gain partisan advantage by keeping people away from the polls -- from literacy tests and poll taxes, to misinformation campaigns telling people that Election Day has been moved, or that only one adult per household can cast a ballot. Before the 2004 elections, fliers were distributed in minority neighborhoods in Milwaukee, falsely claiming that "[I]f anybody in your family has ever been found guilty [of a crime], you can’t vote in the presidential election" -- and you risk a 10-year prison sentence if you do. Two years later, 14,000 Latino voters in Orange County, California, received mailings, warning in Spanish that, "[If] you are an immigrant, voting in a federal election is a crime that can result in jail time." Both of these blatant falsehoods likely deterred some eligible citizens from going to the polls. And, just last week, the campaign manager of a Maryland gubernatorial candidate was convicted on election fraud charges for approving anonymous "robocalls" that went out on Election Day last year to more than 100,000 voters in the state’s two largest majority-black jurisdictions. These calls encouraged voters to stay home -- telling them to "relax" because their preferred candidate had already wrapped up a victory.
Second Generation BarriersOne of the key issues for Con will be showing how first, VRA section 5 is still required to check and avoid continuing efforts disenfranchise minorities from the right to vote. Since section 5 is given force by section 4 (the part ruled unconstitutional), Con must show that the section 4, as amended through 2006 continues to properly identify those states and districts which are the biggest offenders in attempts to deny voting rights. Though the law as written in 1965 identified specific mechanisms prevalent at the time, despite the fact the mechanisms have changed, the spirit of the law and intent to discriminate remains legitimate.
Congress also found that as “registration and voting of minority citizens increas[ed], other measures may be resorted to which would dilute increasing minority voting strength.” Ibid. (quoting H. R. Rep. No. 94–196, p. 10 (1975)). See also Shaw v. Reno, 509 U. S. 630, 640 (1993) (“[I]t soon became apparent that guaranteeing equal access to the polls would not suffice to root out other racially discriminatory voting practices” such as voting dilution). Efforts to reduce the impact of minority votes,in contrast to direct attempts to block access to the ballot, are aptly described as “second-generation barriers” to minority voting. Second-generation barriers come in various forms. One of the blockages is racial gerrymandering, the redrawing of legislative districts in an “effort to segregate the races for purposes of voting.” Id., at 642. Another is adoption of a system of at-large voting in lieu of district-by-district voting in a city with a sizable black minority. By switching to at-large voting, the overall majority could control the election of each city council member, effectively eliminating the potency of the minority’s votes. Grofman & Davidson, The Effect of Municipal Election Structure on Black Representation in Eight Southern States, in Quiet Revolution in the South 301, 319 (C. Davidson& B. Grofman eds. 1994) (hereinafter Quiet Revolution). A similar effect could be achieved if the city engaged in discriminatory annexation by incorporating majority white areas into city limits, thereby decreasing the effect of VRA-occasioned increases in black voting. Whatever the device employed, this Court has long recognized that vote dilution, when adopted with a discriminatory purpose, cuts down the right to vote as certainly as denial of access to the ballot.
The litigants for Shelby County argued that so-called second generation barriers were not specifically outlawed under the VRA. While vote dilution for an example, may or may not be an issue, the VRA section 4 specifically identifies minority voting rolls and specific devices and tests such as poll taxes and literacy tests as criteria for requiring preclearance. As the majority decision plainly explains, these devices have been outlawed for more than 40 years and minority voting rolls in the specific states are at all time highs, even exceeding white registration in some places. In my opinion, the argument for Con in this debate, is rooted in the spirit of the law and not the letter. Section 4 identifies those states with a long standing history of minority discrimination and despite the advances made, they continue to be the source of more potential offenses than any other.
True, conditions in the South have impressively improved since passage of the Voting Rights Act. Congress noted this improvement and found that the VRA was the driving force behind it. 2006 Reauthorization §2(b)(1).But Congress also found that voting discrimination had evolved into subtler second-generation barriers, and that eliminating preclearance would risk loss of the gains that had been made. §§2(b)(2), (9). Concerns of this order, the Court previously found, gave Congress adequate cause to reauthorize the VRA. City of Rome, 446 U. S., at 180–182 (congressional reauthorization of the preclearance requirement was justified based on “the number and nature of objections interposed by the Attorney General” since the prior reauthorization; extension was “necessary to preserve the limited and fragile achievements of the Act and to promote further amelioration of voting discrimination”)(internal quotation marks omitted). Facing such evidence then, the Court expressly rejected the argument that disparities in voter turnout and number of elected officials were the only metrics capable of justifying reauthorization of the VRA. Ibid.
The above statement by Ginsburg is important, because the justice cites the City of Rome v United States Case which previously questioned Congress's authority to extend the VRA similar in the way challenged in the Shelby County case. As Ginsburg notes, and as noted in the City of Rome case, the reconstruction amendments specifically expanded Congressional power over state's rights for the purpose of enforcing the civil war amendments through appropriate legislation.
The Fifteenth Amendment, which targets precisely and only racial discrimination in voting rights, states that, in this domain, “Congress shall have power to enforce this article by appropriate legislation.”2 In choosing this language, the Amendment’s framers invoked Chief Justice Marshall’s formulation of the scope of Congress’ powers under the Necessary and Proper Clause: “Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional.” McCulloch v. Maryland, 4 Wheat. 316, 421 (1819) (emphasis added)...The 2006 reauthorization of the Voting Rights Act fully satisfies the standard stated in McCulloch, 4 Wheat., at 421: Congress may choose any means “appropriate” and “plainly adapted to” a legitimate constitutional end. As we shall see, it is implausible to suggest otherwise.
Based on these arguments, the Supreme Court wrongly ruled Section 4 of the VRA unconstitutional because it disregarded the previous court acknowledgment that regulation of voting rights is fully under the jurisdiction of the Congress, the section 4 criteria are not the only metrics capable of justifying reauthorization and an overwhelming wealth of evidence continues to support the need for justice department preclearance under the terms of section 5.
When Unconstitutional is ConstitutionalFinally, I want to leave you with an interesting essay by A.R. Amar of Harvard Law. I would guess few students realize that in the years immediately following the Civil War, the southern states which ceded from the union were not exactly welcomed back into the fold with open arms. These states had essentially lost their standing as states, lost their congressional rights, and were no longer considered equally sovereign members of the federation. Each had to earn its way into good standing by submitting new state constitutions for congressional approval and agreeing to support the 14th amendment.
Between 1865 and 1868, states with abysmal track records of rights-enforcement and democratically deficient voting rules were not allowed back into Congress to sit alongside states with minimally acceptable track records, and these same democratically deficient states were also not allowed to resume full powers of state self-governance enjoyed by their nondeficient sister states. Instead, states with sorry track records were required to submit new state constitutions for federal preapproval/preclearance, and were also required to ratify the Fourteenth Amendment itself. Other states, by contrast, were not subject to these special federal preclearance requirements. Although many critics of Congress’s actions in the 1860s loudly objected, in the name of states’ rights and state equality, to this highly visible system of selective preclearance, the Reconstruction Congress successfully defended its actions as a proper federal enforcement of the Article IV Republican Government Clause — the very clause that today’s states’ rights critics of the VRA have tried to invoke, with unintended but astonishing irony, against the VRA
The legacy of the Reconstruction then, is the unprecedented expansion of congressional power over states' rights with respect to protecting the most fundamental freedoms of the U.S. citizens. Since the 1965 passage of the VRA, the Supreme Court has strongly supported the power of congress and affirmed the continual extension of the VRA based on overwhelming evidence of need.
Today, via a repeated process of amendments echoing the Fifteenth (which in turn echoed the Fourteenth), no fewer than five separate amendments — the Fourteenth, the Fifteenth, the Nineteenth, the Twenty-Fourth, and the Twenty-Sixth — contain language expressly affirming a “right to vote.” Every single one of these amendments ends with pointed wording empowering Congress in sweeping McCulloch-based language to enact “appropriate” enforcement laws. Surely, any sound analysis of constitutional proportionality must attend to the actual and stunning proportion of postbellum constitutional texts affirming the link between congressional power and the enforcement of voting rights. Time and again, Americans across the generations have explicitly said, via amendments drafted by Congress and approved by the states, that protecting voting rights is a central mission given to Congress; and each and every one of these amendments has contained express language suggesting that Congress should have a considerable choice of means in discharging its powers, in the emphatic tradition of McCulloch v. Maryland. Which leads, finally, to section 2 of the Fifteenth Amendment. Even if none of the foregoing arguments has persuaded the reader, the VRA can and should be upheld simply and solely on the basis of section 2, giving Congress sweeping power to enact laws aimed at preventing race discrimination in voting.
The Con side of this debate can only wonder, why the stunning reversal by the court.
Why the Supreme Court May Rule Against the Voting Rights Act
ProPublica, June 25, 2013
The Lawfulness of Section 5 — and Thus of Section 5
Harvard Law Review
AKHIL REED AMAR, 2013
The New Wave of Election Regulation: Burden without Benefit
American Constitution Society
By Justin Levitt (Assoc. Prof. of Law, Loyola Univ)
Senate Floor Speech on Renewing Voting Rights Act
delivered 20 July 2006