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Why Roberts was Wrong: The Voting Rights Act and Shelby County v. Holder

By: Stewart J. Guss

By: Benjamin Shteinfeld

“The vote is the most powerful instrument ever devised by man for breaking down injustice and destroying the terrible walls which imprison men because they are different from other men” ~Lyndon B. Johnson

After the Civil War, the 14th and 15th amendments ensured that former slaves had the right to vote. Unfortunately, the still racist Confederate states resisted and tried to disenfranchise freedman in anyway they could: poll taxes to keep poor black from voting, literacy tests, and voter dilution through the creation of majority-minority districts. It was not until 1965 with the passage of the Voting Rights Act that the federal government took on the responsibility of enforcing the 15th amendment by punishing states which passed discriminatory legislation. Nowadays, many take equal voting rights as a given and view the previous story as a system of the past; however, it is still relevant today. For example, voter ID laws in Texas passed in Texas last year could possibly disenfranchise more than 700,000 registered voters who lack personal identification, the majority of whom are from minority groups1 ruled in Shelby County v. Holder where it decided that section 4(b) of the Voting Rights Act was unconstitutional. Although the Supreme Court had some constitutional basis for declaring section 4(b) of the VRA as unconstitutional, the ultimate effect of its repeal is detrimental to the voting rights of minorities.

The Fourteenth Amendment to the Constitution was ratified in 1868 following the end of the Civil War during the era of Reconstruction; it established that all people born in the United States were citizens and thus could not be denied “equal protection of laws” by states, and it gave Congress the right to enforce this. Soon after, the Fifteenth Amendment, ratified in 1870, prohibited states from discriminating in their election laws based on “race, color, or previous condition of servitude”. In order to be readmitted into the Union, southern states were forced to adopt these amendments into their laws. The immediate result of these two amendments was that all the former slaves in southern states had legal protection for their right to vote, resulting in a rapid increase in the number of black voters and black elected officials.

Many groups like the Ku Klux Klan and Knights of the White Camellia resisted the franchisement of freedmen through intimidation and violence. Reconstruction ended with the Compromise of 1877, which led to white democrats called “redeemers”, gaining control in southern state legislatures. Initially, they used “gerrymandering of election districts to reduce black voting strength and minimize the number of black elected officials”2 protection of the 14th and 15th amendments, by the 1890s, racism and racist legislation persisted in the form of state level efforts to establish prerequisites to vote which disproportionately affected freedmen, a problem called first-generation voting barriers. The most common of these “devices” to prevent access to the ballot box were: poll taxes which prevented poor blacks from voting, literacy tests which prevented uneducated citizens from voting, and grandfather clauses which only allowed the right to vote to those whose grandfather’s had the right to vote (all freedmen’s grandfathers were slaves without the right to vote). Further discrimination persisted in the “Jim Crow” south, which completely segregated blacks from white communities.

Unfortunately, these efforts “in the former Confederate states, [left] nearly all black citizens disenfranchised by 1910”3 Congress tried to pass statutes outlawing these disenfranchising practices and facilitating litigation against them; however, litigation was too slow and expensive that states always made news ways to discriminate as old ones were struck down4 this cycle, under President Lyndon Johnson, Congress passed the infamous Voting Rights Act in 1965. First, Section 2 was enacted to forbid in every state any “standard, practice, or procedure […] imposed or applied […] to deny or abridge the right of any citizen of the United States to vote on account of race or color”5 through its section 5, which forced covered jurisdictions get approval, called preclearance, from the federal government for every change in their election laws. Because this is a large imposition on jurisdictions, Congress did not apply it to every state, but rather only jurisdictions with a history of discriminatory behavior. The covered jurisdictions are determined by the coverage formula described in section 4(b). The original 1965 Voting Right Act classified covered jurisdictions as those who used a “test” or “device” as a prerequisite to voting as late as November 1964 and had a voter turnout rate of less than 50% in the 1964 election6 In 2006, a covered jurisdiction in Alabama, Shelby County sued the Attorney General Eric Holder on a facial challenge of sections 4(b) and 5. The District Court of Appeals upheld the act, finding sufficient evidence for a continued need for both sections; however, in 2011 the

Supreme court ruled in Shelby County v. Holder, on a 5-4 decision, that section 4(b) is unconstitutional, leaving intact section 5. In the majority opinion, Chief Justice Roberts explains the reasons why section 4(b) was stuck down. As established in Northwest Austin Municipal Utility District No. 1 v. Holder, “current burdens must be met by current needs”7 the constitutionality of section 4 depends on its efficacy; Roberts argues that the data used for coverage formula is outdated and does not reflect the changes in voter turnout over the past fifty years, mainly decreases in the voter turnout gap in covered jurisdictions. In other words, the burden on a state of having to get every law change approved by the Department of Justice is too large, especially when the covered states are classified by data from decades before. Moreover, he argues that the “principle of equal sovereignty”, the idea that the government must treat each state equally, is violated because it suspends “all changes to state election law – however innocuous – until they have been precleared” by the federal government8 this is a violation of equal sovereignty because preclearance only applies to nine states and 40 counties; while one state has to wait months or possibly years, spending money to try to implement a valid law, a neighboring state can implement it immediately. He concludes that this represents an “extraordinary departure from the tradition course of relations between the States and the Federal Government”9

One of the main arguments Roberts describes in the Majority Opinion is the violation of equal sovereignty. There are however a few problems with his argument. First, the precedent he cites for the principle of equal sovereignty is the 1911 case of Coyle v. Smith which states that “the constitutional equality of the States is essential to the harmonious operation of the scheme upon which the Republic was organized. When that equality disappears we may remain a free people, but the Union will not be the Union of the Constitution”10. While this sounds convincing, the context of this precedent is that of the “principle that each and every State is admitted to the union on an equal footing”11; however, after admitted to the union, states can treated unequally by the government. In fact, it happens all the time – Texas receives corn and oil subsidies from the federal government, while Massachusetts does not. Second, the 1982 reauthorization of the Voting Rights Act amended the legislation to include a bailout provision in section 2, if ten years prior to the bailout the jurisdiction did not use a forbidden test or device and did not fail to receive a requested preclearance12. This allows states which have stopped their discriminating practices, a chance to bail out of preclearance under a set of rules common to all states, which means no states are being treated unequally. This has happened empirically; as of 2013, 236 individual jurisdictions have bailed out of section 5 preclearance13. Justice Roberts is correct in citing Northwest Austin v. Holder for the principle of “current burdens meeting current needs”, but he argues that there is currently little need for section 4. The New Yorker corroborates, stating that times have indeed changed, finding from 1998 to 2002, for every 10,000 submissions to the Department of Justice from section 4(b) and 5, there were only 5 objections14. Many cite this as a reason to explain why these sections are unconstitutional. Because the DoJ only objects to 5 out of 10,000 law changes, all the other changes delay the states and thus create an unnecessary burden on the states which means “current burdens” are not met by “current needs”. This argument too has several flaws. First, this portrayal is a logical fallacy because the decrease in objections to law changes made by the DoJ is a result of Voting Rights Act, which prevents and punishes discriminatory law changes made by states. As Justice Ginsburg notes in her dissent, “throwing out preclearance when it has worked and is continuing to work to stop discriminatory changes is like throwing away your umbrella in a rainstorm because you are not getting wet”15. Just because conditions are improving does not mean that the solution is no longer needed. The best evidence of this is analyzing what happened immediately following the Shelby County v. Holder decision; seven formerly covered states and seven uncovered states passed new voting restrictions such as limiting early voting and registration, requiring voters to show photo ID, and purging voter rolls, all of which “disproportionately affect poor and minority voters”16. Clearly, the Voting Rights.

Act did its job by preventing covered districts from passing discriminatory laws and deterring uncovered states from passing discriminatory laws with the threat of being bailed into section 5 preclearance through the bail in provision in section 3.

Another issue that Roberts and other supporters of the court decision bring up is the fact that the section 4 coverage formula is based off of decades old data. Many cite the example of a voter ID law in Texas that was objected to by the DoJ that was passed without difficulty in Indiana, an uncovered district17, suggesting that there are uncovered states which pass discriminatory laws and thus the coverage formula is invalid and unconstitutional because “current burdens” are are met by “current needs”. There are several reasons why section 4 is still constitutional, even using old data. First, the judicial precedent from South Carolina v.

Katzenbach states that when the original Voting Rights Act was enacted, the court knew that “the coverage provision has never achieved a perfect ‘fit,’ and this Court has never expected perfection. Rather, Congress and this Court have appropriately recognized that the provision reflects Congress’s legislative judgment to target the jurisdictions with the gravest danger of voting discrimination”18. Because the coverage formula was never intended to be perfect, it can still be constitutional despite not covering some districts who pass discriminatory laws. Second, the coverage formula does a good job at the identifying the states who are passing discriminatory legislation. A great measure of the amount of discrimination in a jurisdiction is the number of successful section 2 litigations, in which a plaintiff sues his or her jurisdiction for attempting to enact a discriminatory law. Peyton McCrary from Ohio State University finds that on a per capita basis, “there were twelve times more successful section 2 cases in covered jurisdictions than in uncovered jurisdictions, when factoring in unpublished cases”19. Even if the coverage formula is not perfect and is based on old data, today it does a good job at identifying discriminating states to fulfill the principle of “current burdens meeting current needs” because covered jurisdictions are twelve times more likely to pass discriminatory legislation.

Roberts also cites concerns about federalism as a reason for the unconstitutionality of section 4. He writes in the majority opinion that while the federal government does retain control of federal elections, “States have broad powers to determine the conditions under which the right of suffrage may be exercised” under the 10th amendment, for example, drawing lines for congressional districts is the responsibility of the states Lopez v. Monterey County states that “the Voting Rights Act, by its nature, intrudes on state sovereignty. The Fifteenth Amendment permits this intrusion, however”21. As the precedent explains, the main issue with the federalism argument is that the 15th amendment trumps the 10th because it specifically gives Congress the right to enforce equal voting rights for all.

Furthermore, while the union might be a collection of states, the federal government should prioritize the rights of the people over those of the states.

In the absence of the section 4 coverage formula, there are a few alternatives which can place jurisdictions which are attempting to pass discriminatory legislation under section 5 preclearance. These alternatives are section 2 litigations and the section 3(c) bail-in provision.

Some argue that these two alternatives allow the Voting Rights Act to tailor preclearance to the states which are attempting to discriminate, and thus there is no need for the coverage formula based on supposedly old invalid data. First, the section 3(c) bail-in provision or “pocket trigger” subjects jurisdictions to section 5 preclearance if a plaintiff sues a jurisdiction and a district court

finds evidence that the jurisdiction enacted a voting law which intentionally discriminated. The New Yorker explains why section 3 is less effective than section 4, “[section 3] allows much greater discretion on the part of the federal courts, requires a much higher evidentiary standard, and permits laws to become effective while decisions are pending, rather than before elections take place”22. The largest disadvantage of section 3 is that discriminatory laws become enacted before they are struck down. Empirically, section 3(c) “pocket trigger” has not even been used commonly because of the high evidence standard in order to provide intentional discrimination.

The Brookings Institute finds that as of 2013, only two states, Arkansas and New Mexico, have ever been bailed in under section 3(c) precisely because it is too difficult to show proof of intentional discrimination23. The second alternative to section 4 are section 2 litigations, which are like section 3(c) bail-in cases, except they are on a case-by-case basis for every law. The main issue with these is also inefficiency and high cost. The Yale Law Review explains that after the Shelby County v. Holder decision, many laws were passed with resulted in voter dilution and that the section 2 cases were not completed before the election which resulted in improperly elected officials24. Additionally, without section 4, there is no deterrent for states to not discriminate because they know litigations are time consuming, expensive, and difficult to win for the plaintiff. Section 4 is the only preemptive measure, unlike sections 2 and 3(c).

Discriminatory laws take effect with only sections 2 and 3(c) because the cases take a long time. In this context, section 4 is not only necessary, but also constitutional because it satisfies the principle of “current burdens meeting current needs”.

The repeal of section 4(b) of the Voting Rights Act in Shelby County v. Holder is a terrible mistake. Without the federal government preemptively blocking discriminatory legislation, states will continue passing restrictive voting laws that could possibly disenfranchise millions across the country. Like Lyndon Johnson said, “The vote is the most powerful instrument ever devised by man” because every citizen deserves a properly elected representative in the government that represents them. Unfortunately, as a result of Shelby County v. Holder, many may never get that opportunity.

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