Sunday, January 26, 2014

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

The Con Position

Despite 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.

Obama 2006:
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 Today

It 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.

Holder 2011:
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.

Holder 2011:
Despite the long history of support for Section 5, this keystone of our voting rights laws is now 
being 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.

Ginsburg 2013:
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.

Ginsburg 2013:
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.

Holder 2011:
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 Barriers

One 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.

Ginsburg 2013:
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.

Ginsburg 2013:
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.

Ginsburg 2013:
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 Constitutional

Finally, 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.

Amar 2013:
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.

Amar 2013:
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.


Miscellaneous Links

Why the Supreme Court May Rule Against the Voting Rights Act
Suevon Lee
ProPublica, June 25, 2013

The Lawfulness of Section 5 — and Thus of Section 5
Harvard Law Review

The New Wave of Election Regulation: Burden without Benefit
American Constitution Society
By Justin Levitt (Assoc. Prof. of Law, Loyola Univ)
June 2012

Barack Obama
Senate Floor Speech on Renewing Voting Rights Act
delivered 20 July 2006

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

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