Archive | Voting Rights Act

Hasen on the New Proposed Voting Rights Act

Election law maven Rick Hasen writes:

I have now had a chance to review the text the Voting Rights Amendments Act of 2014 introduced today by Representatives Sensenbrenner and Conyers (with parallel legislation being introduced by Senator Leahy in the Senate). I believe parts of the VRAA are likely constitutional (including the new coverage formula), parts are likely unconstitutional (new bail in), and most of it is sensible policy. But I am very pessimistic about the legislation passing out of the House. Ironically, I think if this were the bill introduced in 2006 to amend the VRA, it would not only have passed both Houses of Congress and become law, the Supreme Court would have been very likely to uphold the measure as constitutional despite its constitutional problems. I’ll address each point in turn. . . .

While I have read the bill, I haven’t yet analyzed it as closely as Hasen has. But I am cautiously pleased by it. [...]

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Joey Fishkin on “Shenanigans” After Section Five

Joey Fishkin has an excellent post on some of the many voting changes that previously-covered jurisdictions are implementing (or may implement) now that they are not covered by Section Five of the Voting Rights Act. He devotes particular attention to some suspicious-sounding “shenanigans” (his word) in Beaumont, Texas, and makes the general observation:

[T]he greatest impact of Shelby County will likely be at the local level—in places where media scrutiny is minimal, and litigation resources meager. You will hear less about these local cases. But I think that’s a problem; they are really where the action is. … With the gradual decline of local journalism, I only know about this story because of a blog post (and many of you who are reading this probably only know about it because of this blog post). Across the South, many controversies of this kind are going to go under the radar, with no reporter, or even a blogger, bothering to cover them at all.

I think this is a very good point, sometimes neglected in media coverage of things like redistricting or state-wide voter ID laws.

One final point. I suspect that the way most people see these voting changes will generally be a result of confirmation bias. Those who thought that the preclearance regime was constitutional will see these as further proof that Section 5 was needed — just look at all the “shenanigans” that covered jurisdictions get up to as soon as they have a chance, they’ll say. Those who thought the regime was unconstitutional will see them as further proof of Section 5’s dramatic invasion of state sovereignty — this just shows how big of a burden Section 5 was imposing and/or how unneeded that burden was in light of the Constitution and (maybe) Section 2 [...]

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DOJ Decides to Mess with Texas

So the big Voting Rights Act news of the day is that the Department of Justice will be asking a court to “bail in” the state of Texas for preclearance under the Voting Rights Act. (This involves a separate provision of the Voting Rights Act, Section 3, codified at 42 U.S.C. 1973a(c).)

Rick Hasen has a long post about the DOJ action and why he thinks it’s important. An excerpt:

[B]ail-in is a lot better than nothing. It could stop Texas’s very tough voter id law, which would require people without id to travel up to 125 miles each way at their own expense to get an id. Student ids are not allowed but concealed weapons permits are. You get the idea.

DOJ doing this shows it will be aggressive in enforcing voting rights. But if DOJ gets bail in, it seems pretty clear, as Lyle Denniston has shown, that Texas will attack this in court, likely ending up at the U.S. Supreme Court if the lower court grants bail in. It will be an interesting choice for Justice Kennedy as to what to do in a case where equal sovereignty is violated, but upon proof of intentional discrimination in voting.

One thing I’d add, though: Hasen seems to assume that if Texas is bailed in and the case goes to the Supreme Court, Justice Kennedy will be the marginal vote. But supporters of bail-in might also want to keep an eye on Justice Scalia. In his Tennessee v. Lane dissent, he wrote:

For reasons of stare decisis, I shall henceforth apply the permissive McCulloch standard to congressional measures designed to remedy racial discrimination by the States. I would not, however, abandon the requirement that Congress may impose prophylactic §5 legislation only upon those particular States in which

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Thinking Through the Constitutionality of Section 2

Several commenters asked me to expand a bit on the constitutional questions raised by Section 2 of the Voting Rights Act. While I doubt that I can do so with a thoroughness that would satisfy the Volokh commentariat (can anything satisfy the Volokh commentariat?), I thought I’d lay out a few more thoughts. I don’t actually have a strong view on the ultimate answer — it strikes me as a hard case. But here’s how I’d think about it:

The first step is to figure out what is actually protected by Section One of the Fifteenth Amendment, which says “The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any state on account of race, color, or previous condition of servitude.” The Court has said this applies only to restrictions that are discriminatory on their face or else “motivated by a discriminatory purpose,” which pretty much mirrors the standard from equal protection cases. Section 2 is much broader and turns on discriminatory effects. I don’t know what I think of this — the insistence on discriminatory intent has always seemed a little underproven to me; on the other hand, I haven’t seen a really persuasive coherent alternative theory of discrimination either.

At any rate, however that turns out, the second step is to figure out how far Congress is allowed to expand beyond whatever the answer is to step one. On one hand, you have evidence that Section 2 of the Fifteenth Amendment, like McCulloch, gives Congress a great deal of deference in its choice of enforcement. On the other, you have the textual point Justice Scalia made in Tennessee v. Lane:

One does not, within any normal meaning of the term, ‘enforce’ a prohibition by

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Justice Stevens’s Thoughts on Shelby county

Justice Stevens has not been shy in his retirement about telling us what he thinks about current controversies at the Supreme Court. In an essay at the New York Review of Books (reviewing Gary May, Bending Toward Justice), he discusses the Court’s decision in Shelby County.

I found this passage the most interesting:

The statistics set forth in Roberts’s recent opinion persuasively explain why a neutral decision-maker could reasonably conclude that at long last the imposition of the preclearance requirement on the states that lost the Civil War — or more precisely continuing to use the formula that in 1965 identified those states — is not justified by the conditions that prevail today.

Of course, the next sentence is:

The opinion fails, however, to explain why such a decision should be made by the members of the Supreme Court.

[UPDATE: And here are some thoughts from Josh Blackman, the internet’s biggest critic of the “Justice Stevens Rehabilitation Tour.”] [...]

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What Will Happen to Section Two of the Voting Rights Act?

In a speech today, Attorney General Holder announced that he has “directed the Department’s Civil Rights Division to shift resources to the enforcement of Voting Rights Act provisions that were not affected by the Supreme Court’s ruling – including Section 2.” Section 2 of the Voting Rights Act is the one that nationwide forbids voting practices that have a discriminatory effect. (Exactly how to find such an effect is the subject of a ton of complicated doctrine.)

There was a time when Section 2 was constitutionally controversial. The Court has said that the Constitution is only violated when a voting practice has a discriminatory intent, but Section 2 (which was enacted in its modern form in 1982) sweeps far more broadly, and many violations of Section 2 today are proved without a showing of discriminatory intent. This has led some to question whether Section 2 exceeds Congress’s enumerated powers or violates the 14th and 15th Amendments by effectively forcing legislatures to place too much weight on race in, for example, drawing district lines. Indeed, the Court has repeatedly construed Section 2 narrowly out of concerns about its constitutionality (e.g., in Bartlett v. Strickland; Miller v. Johnson, and various opinions in LULAC v. Perry). These views are also discussed (and criticized) by Chris Elmendorf and Luis Fuentes-Rohwer.

So a natural question to ask is, after Shelby County, is Section 2 next on the chopping block? Neither Shelby County nor Northwest Austin said much of anything about Section 2. They didn’t explicitly call it into question, but they also didn’t emphasize that it was an example of appropriate legislation, nor did the Court say anything like “preclearance is especially unnecessary in light of Section 2.” Instead both cases just said flatly that Section 2 “is not at issue [...]

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Colorado Inside-Out 1973 Time Machine

This Friday, July 6, at 8 p.m. Mountain Time, is Colorado Inside-Out’s annual Time Machine episode, on Colorado Public Television, channel 12. These episodes have won three regional Emmy Awards. This year’s episode takes us to 1973, with discussions of Equal Rights Amendment ratification, political violence, the energy crisis, and Watergate.

The characters are, from left to right: KHOW radio host Charlie Martin (Dominic Dezutti), folksinger Judy Collins (Patty Calhoun), Colorado State Rep. Gerald Kopel (me), an obscure actress with a couple Broadway cast appearances (Dani Newsum), and Rocky Mountain News police reporter Al Nakkula (Kevin Flynn). If you don’t live in Colorado, you can watch it on the website, starting sometime next week.

Also on the website, by Friday, will be a bonus segment, set in the year 2025. There we discuss the challenges facing President Chelsea Clinton, as she faces a hostile Congress dominated by the fusionist Green Tea Party.


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Making Sense of Shelby County

In several places I’ve seen the same question posed about the majority opinion in Shelby County v. Holder: “What part of the Constitution supports the decision?” Steve Benen, for instance, writes:

as I read the ruling (pdf) this morning, I was looking for something specific: why the court majority considers Sec. 4 of the Voting Rights Act unconstitutional.

I’m not an attorney, so I’ll concede my background is limited, but in the rulings I’ve read striking down federal laws, there’s some kind of explanation as to the part of the Constitution the law ostensibly contradicts. A statute violates the First Amendment, or the Commerce Clause, or the Due Process clause, etc., and is therefore unlawful.

So on what grounds, exactly, did the court find Sec. 4 of the VRA unconstitutional? I have no idea.

Phrased this way, the question misunderstands the premises underlying the majority opinion and, as a consequence, illustrates a fairly fundamental divide between the way many on the Left and Right view questions of federal power. The Left generally sees a vast sea federal power limited by islands of protections for various rights. From that perspective, the relevant question is whether there is something in the Constitution (or its principles) that defeats federal legislation. Many on the Right start from a different premise: The Constitution authorizes islands of federal power in what is otherwise a sea of questions reserved to states or the people. These characterizations are broad generalizations, to be sure, but I think they capture a real divide in conceptions of federal power.

From the Right’s perspective, the question is not whether some specific provision in the Constitution invalidates Section 4 of the VRA, but whether it is expressly authorized — whether it fits on one of these islands of federal power. The argument [...]

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Reading The Tea Leaves On Shelby County v. Holder

Based on today’s decision in Maryland v. King, there are now three opinions outstanding from the February sitting (Shelby County v. Holder, Peugh v. United States, and American Express Co. v. Italian Colors Restaurant), and three Justices who have no majority opinion for that sitting yet (the Chief Justice, Justice Scalia, and Justice Sotomayor).

Making predictions is always a risky enterprise, but I suspect that the Chief Justice assigned Shelby County (the Voting Rights Act challenge) to himself.  (If so, as William S. notes in the comment thread, Sotomayor has recused herself from Italian Colors, meaning Scalia would have that case and Sotomayor would have Peugh.)  We’ll know within a few weeks!  And as an aside, who would have guessed that Peugh would take longer to decide than Maryland v. King? [...]

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