03 March 2013

Constitutionality of the Voting Rights Act

In the wake of the Supreme Court oral arguments in the case of Shelby County v. Holder, I have engaged a number of people in debate over the core issue of the case: whether Section 5 of the Voting Rights Act is constitutional. Most of this debate has been over Twitter, which isn't the best forum for debates in general. It's also a poor means of discussing an issue that requires a considerable amount of background to bring oneself up to speed on the issue. So this post is meant to serve as that background, and as a launching pad to further debate.

The Wikipedia page is sufficiently detailed to understand the history of the Voting Rights Act in general. What we're concerned about here is Section 5, which mandates preclearance. Preclearance means that certain jurisdictions are required by law to receive federal permission for certain changes to their election law or changes to the voting location. For a list of current jurisdictions covered by Section 5, see here.

Section 2 of the VRA outlaws all of these violations; it applies to the entire country and (even in the absence of Section 5) is an extraordinarily powerful tool to remedy voting rights violations. But let's be clear in understanding that Section 5 was originally designed as a temporary, emergency provision. The reason is because it has extraordinary federalism costs by violating a state's sovereignty (elections are run by states, not the federal government; Section 5 essentially put these states and political subdivisions into federal receivership). It was justified (rightly so) by egregious voting rights violations. Enforcing the 15th Amendment outweighed the cost of intruding on a state's sovereignty.

The jurisdictions covered by Section 5 were determined by a preclearance formula outlined in Section 4(b). Here's how the Justice Department describes the formula for coverage (emphasis is mine):
As enacted in 1965, the first element in the formula was whether, on November 1, 1964, the state or a political subdivision of the state maintained a "test or device" restricting the opportunity to register and vote. The Act's definition of a "test or device" included such requirements as the applicant being able to pass a literacy test, establish that he or she had good moral character, or have another registered voter vouch for his or her qualifications.
The second element of the formula would be satisfied if the Director of the Census determined that less than 50 percent of persons of voting age were registered to vote on November 1, 1964, or that less than 50 percent of persons of voting age voted in the presidential election of November 1964. This resulted in the following states becoming, in their entirety, "covered jurisdictions": Alabama, Alaska, Georgia, Louisiana, Mississippi, South Carolina, and Virginia. In addition, certain political subdivisions (usually counties) in four other states (Arizona, Hawaii, Idaho, and North Carolina) were covered. In fully covered states, the state itself and all political subdivisions of the state are subject to the special provisions. In "partially covered" states, the special provisions applied only to the identified counties. Voting changes adopted by or to be implemented in covered political subdivisions, including changes applicable to the state as a whole, are subject to review under Section 5.
In 1970, Congress recognized the continuing need for the special provisions of the Act, which were due to expire that year, and renewed them for another five years. It added a second prong to the coverage formula, identical to the original formula except that it referenced November 1968 as the relevant date for the maintenance of a test or device and the levels of voter registration and electoral participation. This addition to the formula resulted in the partial coverage of ten states, including Alaska, Arizona, California, Connecticut, Idaho, Maine, Massachusetts, New Hampshire, New York, and Wyoming. Half of these states (Connecticut, Idaho, Maine, Massachusetts, and Wyoming) filed successful "bailout" lawsuits. 
In 1975, the Act's special provisions were extended for another seven years, and were broadened to address voting discrimination against members of "language minority groups," which were defined as persons who are American Indian, Asian American, Alaskan Natives or of Spanish heritage." As before, Congress expanded the coverage formula, based on the presence of tests or devices and levels of voter registration and participation as of November 1972. In addition, the 1965 definition of "test or device" was expanded to include the practice of providing any election information, including ballots, only in English in states or political subdivisions where members of a single language minority constituted more than five percent of the citizens of voting age. This third prong of the coverage formula had the effect of covering Alaska, Arizona, and Texas in their entirety, and parts of California, Florida, Michigan, New York, North Carolina, and South Dakota. 
In 1982, the coverage formula was extended again, this time for 25 years, but no changes were made to it. In 2006, the coverage formula was again extended for 25 years. Section 4, along with those other sections that are dependent upon it, such as Section 5 and 8, will expire in 2031.
The key takeaway is that all of the jurisdictions that are currently covered by the preclearance requirement were determined in 1975, based on voter registration and participation data from 1964, 1968, and 1972.

The Justice Department goes on to explain how a jurisdiction can get removed from the preclearance requirement, or "bail out:"
Section 4 also provides that a jurisdiction may terminate or "bailout" from coverage under the Act's special provisions. Originally enacted in 1965 as a means to remedy any possible over inclusiveness resulting from application of the trigger formula, Congress amended this procedure in 1982 so jurisdictions that meet the statutory standards can obtain relief. The amendment, which took effect on August 5, 1984, establishes an "objective" measure to determine whether the jurisdiction is entitled to "bailout". 
A jurisdiction seeking to "bailout" must seek a declaratory judgment from a three-judge panel in the United States District Court for the District of Columbia. On June 22, 2009, the Supreme Court held that any jurisdiction currently required to make Section 5 submissions may seek to "bailout" from coverage if it meets the statutory criteria set forth below. 
The successful "bailout" applicant must demonstrate that during the past ten years:
No test or device has been used within the jurisdiction for the purpose or with the effect of voting discrimination; 
--All changes affecting voting have been reviewed under Section 5 prior to their implementation;
--No change affecting voting has been the subject of an objection by the Attorney General or the denial of a Section 5 declaratory judgment from the District of Columbia district court;
--There have been no adverse judgments in lawsuits alleging voting discrimination;
--There have been no consent decrees or agreements that resulted in the abandonment of a discriminatory voting practice;
--There are no pending lawsuits that allege voting discrimination; and
--Federal examiners have not been assigned;
--There have been no violations of the Constitution or federal, state or local laws with respect to voting discrimination unless the jurisdiction establishes that any such violations were trivial, were promptly corrected, and were not repeated. 
Before being allowed to "bailout", the jurisdiction must have eliminated those voting procedures and methods of elections that inhibit or dilute equal access to the electoral process. It also must demonstrate that it has made constructive efforts to eliminate intimidation and harassment of persons seeking to register and vote and expand opportunities for voter participation, such as opportunities for registration and voting, and to appoint minority officials throughout the jurisdiction and at all levels of the stages of the electoral process. The jurisdiction must also present evidence of minority electoral participation. 
In addition, these requirements apply to all governmental units within the geographical boundaries of the jurisdiction. Thus, if a county is seeking to "bailout", it must establish each criteria for every city, town, school district, or other entity within its boundaries.
The jurisdiction seeking "bailout" must publicize the intended commencement and any proposed settlement of the action; any aggrieved party may intervene in the litigation. After the granting of a declaratory judgment, the statute requires a ten-year "recapture" period. During this time, the district court may reopen proceedings should the jurisdiction engage in any conduct that would have prevented the jurisdiction from bailing out in the first instance. Under such circumstances, the district court will review the evidence and determine whether to reinstate coverage.
The Attorney General is also authorized to consent to an entry of judgment granting the "bailout" if the Attorney General concludes after investigation that the jurisdiction has complied with all of these requirements. Prior to actually filing a petition with the District of Columbia court, any jurisdiction interested in seeking "bailout" may submit a request to the Attorney General with supporting documentation and evidence. Upon receipt, the Voting Section of the Civil Rights Division will undertake an investigation to determine whether the Attorney General would be willing to enter into a consent decree or would oppose the "bailout" petition. If the Attorney General determines that consent to an entry of judgment is proper, the Voting Section will work with the jurisdiction to agree on the terms of the consent decree to be filed with the "bailout" petition when the litigation is actually filed.
A number of jurisdictions have successfully bailed out, but as you can see from above, it is a difficult procedure. The Northwest Austin Municipal Utility District No. 1 (NAMUDNO) had to go all the way to the Supreme Court to allow itself to bailout, even though it wasn't even created until 1987, and had no history of any voter discrimination. In fact, it doesn't even register voters. All they wanted to do was to move a polling place. But they were covered by Section 5 because they were located within Texas.

The effect of Section 5 is that any changes to voting procedures in covered jurisdictions are presumed to be discriminatory. The burden of proof is on the covered jurisdiction to prove the absence of discrimination, per the bail out requirements listed above.

Given that background, consider the first volley I made in this debate:

Richard Goldberg, a Washington, D.C. lawyer for whom I have an enormous amount of respect, called this tweet misleading, but given the above background information, do you really think so? My issue isn't with the bail out. It's with the presumption of discrimination based upon 40+ year old data. Do the federalism costs of intruding on a state's sovereignty, presuming them to be discriminatory until they prove otherwise, justify preclearance based upon data from 1964-1972? I'm sure you won't be surprised by my answer:

The last issue to mention, brought up by my good friend Martin Fisher, is about the respective roles of Congress and the Supreme Court on this issue. He suggests that finding the Voting Rights Act unconstitutional would be "legislating from the bench." I won't spend too much time on this for reasons of time and space, but suffice to say that I support neither "judicial restraint" nor "judicial activism" (partially because those words don't mean anything). They're politically charged words to attack or defend someone depending upon what you or I or someone else may think.

The role of the courts is to weigh the competing interests and come to a conclusion. In this case, the interests on both sides are constitutional and consequential. On one side, federalism and state sovereignty. On the other side, the 15th Amendment. Whether Congress passes a bill by one vote or 435 votes doesn't really weigh on its constitutionality. Finding a law that passed with large majorities unconstitutional is only judicial activism if you like the law. The courts are guided by the rule of law, not by votes. That's one reason why we're a constitutional republic, not a democracy.

This post won't be the end of this debate; in fact, I hope it's just the beginning. We're in for an interesting ride.
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