February 2013: Public Forum Resolution: The Supreme Court rightly decided that Section 4 of the Voting Rights Act violated the Constitution.
Elections in the United States
In the United States, politicians are chosen through popular elections that are administered by state governments and local governments. There are 50 states that make up different political subdivisions in the US and there are many local divisions within those bodies.
At the national level, politicians are elected to the Congress, the lawmaking body, which consists of the Senate (upper body, 100 members) and the House of Representatives (lower body, 438 members). The President, the head of the executive branch (the “law executing” body), is also elected.
The Supreme Court is also part of the national level of government, but the nine Supreme Court justices are not elected by the public. Instead, they are recommended by the President and confirmed by the Senate.
The power of all three branches — branches of government – legislative (Congress), Executive, and Judicial (Supreme Court) – is grounded in the US Constitution, and it is the job of each of the three branches to make sure the other branches don’t abuse their power and run afoul of the Constitution. In particular, one job of the Supreme Court to strike-down any law passed by the Congress that violate the Constitution.
All of the elections that do occur, including those at the national (“federal”) level, are conducted at the state and local levels of government. So, at the state and local levels elections are conducted for candidates for national office, state office, and local office.
In the first half of the 20th century (1900s), there was extensive discrimination in the administration of these elections. During this time, minorities, especially blacks, experienced extensive discrimination in the electoral process. Original methods of excluding them include outright violence and electoral fraud. Methods of discrimination in the early 1900s included “literacy tests, poll taxes, property ownership qualifications, “good character” tests, requirements that voter registration applicants “interpret” a particular document” (Wikipedia, The Geography of Race in the United States).
One article even reported isolated instances of people threatening to kill blacks who voted in elections.
Michael James Burns, Fall, 2012, Catholic University Law Review, NOTE: SHELBY COUNTY V. HOLDER AND THE VOTING RIGHTS ACT: GETTING THE RIGHT ANSWER WITH THE WRONG STANDARD, J.D. and Law and Public Policy Program Certificate Candidate, May 2013 p. 227
In 1898, on the eve of Election Day, a white mayoral candidate from Wilmington, North Carolina, rallied his supporters: “Go to the polls tomorrow and if you find the negro out voting, tell him to leave the polls, and if he refuses[,] kill him; shoot him down in his tracks.” The candidate made this statement 30 years after the passage of the Fifteenth Amendment, which prohibited voter disenfranchisement based on “race, color, or previous condition of servitude.” Such Jim Crow-inspired violence, intimidation, and injustice went unchecked for nearly a century after the adoption of the Fifteenth Amendment, effectively disenfranchising millions of people of color. The Voting Rights Act of 1965 (VRA) signaled Congress’s first decisive action to preserve minorities’ right to vote in the United States.
This blatant and extensive discrimination persisted despite the passage of the Thirteenth Amendment that prohibited discrimination in elections, the Civil Rights Act, and other methods to empower individuals to pursue lawsuits against jurisdictions that violated these rights.
The Voting Rights Act of 1965
In order to remedy this discrimination, The United States Congress passed the voting the Voting Rights Act (VRA) of 1965 (in 1965).
The Act was designed to combat racial discrimination in voting by prohibiting the any of the 50 states from enacting laws that impose any “voting qualification or prerequisite to voting, or standard, practice, or procedure … to deny or abridge the right of any citizen of the United States to vote on account of race or color.”
The more significant set of measures – and those that were the subject of the Supreme Court’s decision – can be found in Section 4 and Section 5. Section 5 establishes “extensive federal oversight of elections administration.” [It] prohibited states and local governments with a history of discriminatory voting practices from implementing any change affecting voting without first obtaining the approval of the United States Attorney General or a three-judge panel of the U.S. District Court for D.C., a process known as “preclearance.” (Wikipedia, About Section 5 of the Voting Rights Act).
Although the authority for the federal government to “preclear” changes in state and local election law can be found in Section 5, the formula for determining which election jurisdictions were subject to the federal preclearance authority can be found in the struck-down Section 4(b). Section 4(b) has been amended by Congress a number of times when the VRA was renewed, but originally a “history of discriminatory voting practices” included “using a “test or device” to limit voting and in which less than 50% of the population was registered to vote, or voted, in the 1964, 1968, or 1972 presidential election” (About Section 5 of the Voting Rights Act).
The Voting Rights Acts has been amended by Congress 5 times and was extended in 2006 by legislation signed into law by then President George Bush (Associated Press).
The Shelby County v. Holder Decision and Section 4
In Shelby County v. Holder, it was the specific formula for determining which jurisdictions were covered in Section 4 (b) that was determined to be unconstitutional. Although Shelby County also challenged the constitutionality of Section 5, a majority of justices only found 4(b) to be unconstitutional. Since Section 4(b) determined, however, which jurisdictions were covered under Section 5, Section 5 cannot be enforced without the Section (4b) formula, rendering Section 5 meaningless.
Ryan Reilly, Huffington Post, June 25, 2013 http://www.huffingtonpost.com/2013/06/25/voting-rights-act-supreme-court_n_3429810.html
The Supreme Court struck down Section 4 of the Voting Rights Act on Tuesday, the provision of the landmark civil rights law that designates which parts of the country must have changes to their voting laws cleared by the federal government or in federal court.¶ The 5-4 ruling, authored by Chief Justice John Roberts and joined by Justices Antonin Scalia, Anthony Kennedy, Clarence Thomas and Samuel Alito, ruled in Shelby County v. Holder that “things have changed dramatically” in the South in the nearly 50 years since the Voting Rights Act was signed in 1965.¶ The court’s opinion said it did not strike down the act of Congress “lightly,” and said it “took care to avoid ruling on the constitutionality of the Voting Rights Act” in a separate case back in 2009. “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 [Section 4] unconstitutional. The formula in that section can no longer be used as a basis for subjecting jurisdictions to preclearance.”¶ The Voting Rights Act has recently been used to block a voter ID law in Texas and delay the implementation of another in South Carolina. Both states are no longer subject to the preclearance requirement because of the court’s ruling on Tuesday.¶ “Our country has changed, and while any racial discrimination in voting is too much, Congress must ensure that the legislation it passes to remedy that problem speaks to current conditions,” Roberts wrote.¶ “There is no doubt that these improvements are in large part because of the Voting Rights Act,” he wrote. “The Act has proved immensely successful at redressing racial discrimination and integrating the voting process.”¶ In his bench statement, Roberts said that Congress had extended a 40-year-old coverage formula based on “obsolete statistics and that the coverage formula “violates the constitution.”¶ Congress, the court ruled, “may draft another formula based on current conditions.” But given the fact that Republicans currently control the House of Representatives, many voting rights advocates consider it unlikely that Congress will act to create a new formula.¶ Justice Ruth Bader Ginsburg issued a wide-ranging dissent on behalf of herself and Justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan, justifying the continued vitality of the Voting Rights Act’s preclearance provision.¶ “The sad irony of today’s decision lies in its utter failure to grasp why the VRA has proven effective,” Ginsburg wrote. “The Court appears to believe that the VRA’s success in eliminating the specific devices extant in 1965 means that preclearance is no longer needed.”¶ The court did not rule on Section 5 of the Voting Rights Act, the preclearance requirement itself, which requires those affected states to have changes to their voting laws cleared by the Justice Department or a federal court in Washington, D.C., before they go into effect. Rather, the court ruled that the current formula that determines which states are covered by Section 5 is unconstitutional, effectively eliminating Section 5 enforcement, at least for the time being.
If Congress were to adopt a new formula to determine which jurisdictions were covered, the Court might find that constitutional and then Section 5 could be enforced again, but Congress is unlikely to agree to one given the current political polarization (the fighting between the Democrats & the Republicans, the two main political parties in the US). And Republican representatives from states such as Virginia and North Carolina favor voter identification laws and are easily persuaded by criticisms of expanded federal authority.
Why the Court Found Section 4(b) Unconstitutional
The case of Shelby County v. Holder grew out of controversy between Shelby County (a local government), Georgia (a US state) in which Shelby County argued that Congress exceeded its authority to prevent discrimination when it reauthorized Section 5 of the VRA using the preclearance formula, thus violating the 10th Amendment to the Constitution.
The 10th Amendment to the US Constitution states that powers not explicitly granted to the federal (national) government by the US Constitution are reserved and held by the states. In the Holding of Shelby County v. Holder, the Supreme Court explained that election law is one of those areas that is reserved for state power:
US Supreme Court, June 2013, Holding of Shelby County v. Holder, http://tinyurl.com/qzrpndc
State legislation may not contravene federal law. States retain broad autonomy, however, in structuring their governments and pursuing legislative objectives. Indeed, the Tenth Amendment reserves to the States all powers not specifically granted to the Federal Government, including “the power to regulate elections” (emphasis added). There is also a “fundamental principle of equal sovereignty” among the States, which is highly pertinent in assessing disparate treatment of States.
Just as the three branches of government – executive, legislative, and judicial — should check each other, the overall balance of power within the Constitution is designed so that the state, local, and national governments all check each other’s power. The balance between the state and federal governments is referred to as federalism and advocates of federalism argue that the balance of power between the state and federal government must be protected in order to prevent one level of government, in this case the federal government, from gaining too much power and threatening the liberty.
Opponents of the preclearance requirement, and its enforcement through Section 4(b), argued these provisions constituted unconstitutional encroachment on state authority/power and hence an inappropriate violation of the Tenth Amendment. A majority of Supreme Court justice agreed that Section 4(b) was an inappropriate expansion of federal power at the expense of state power.
A majority of Supreme Court justices agreed that Section 4(b) is an unconstitutional violation of the 10th Amendment because the coverage formula conflicts with the “equal sovereignty of the states” by using a formula that is “based on 40 year old facts having no logical relationship to the present day” and thus is “unresponsive to current needs.”
The claim about “equal sovereignty” is unique to Section 4 (b) because Section 4(b) determines which jurisdictions/areas that is subject to the preclearance requirement in Section 5. Since only certain areas are subject to it, and since it is based on data that is 40 years old, a majority of Court justices said it violates the equal sovereignty of the states because there is no current rational to treat them differently.
Chief Justice Roberts et al, 2013 (+ justices Scalia, Kennedy, Thomas, and Alito, Shelby County v. Holder, June 25, http://tinyurl.com/qzrpndc)
Not only do States retain sovereignty under the Constitution, there is also a “fundamental principle of equal [emphasis added] sovereignty” among the States. Over a hundred years ago, this Court explained that our Nation “was and is a union of States, equal in power, dignity and authority.” Indeed, “the constitutional equality of the States is essential to the harmonious operation of the scheme upon which the Republic was organized.” Coyle concerned the admission of new States, and Katzenbach rejected the notion that the principle operated as a bar on differential treatment outside that context. At the same time, as we made clear in Northwest Austin, the fundamental principle of equal sovereignty remains highly pertinent in assessing subsequent disparate treatment of States.
The Voting Rights Act sharply departs from these basic principles. It suspends “all changes to state election law — however innocuous — until they have been precleared by federal authorities in Washington, D. C.” States must beseech the Federal Government for permission to implement laws that they would otherwise have the right to enact and execute on their own, subject of course to any injunction in a § 2 action. The Attorney General has 60 days to object to a preclearance request, longer if he requests more information. If a State seeks preclearance from a three-judge court, the process can take years. And despite the tradition of equal sovereignty, the Act applies to only nine States (and several additional counties). While one State waits months or years and expends funds to implement a validly enacted law, its neighbor can typically put the same law into effect immediately, through the normal legislative process. Even if a noncovered jurisdiction is sued, there are important differences between those proceedings and preclearance proceedings; the preclearance proceeding “not only switches the burden of proof to the supplicant jurisdiction, but also applies substantive standards quite different from those governing the rest of the nation.”
All this explains why, when we first upheld the Act in 1966, we described it as “stringent” and “potent.” We recognized that it “may have been an uncommon exercise of congressional power,” but concluded that “legislative measures not otherwise appropriate” could be justified by “exceptional conditions.” We have since noted that the Act “authorizes federal intrusion into sensitive areas of state and local policymaking,” Lopez, 525 U. S., at 282, and represents an “extraordinary departure from the traditional course of relations between the States and the Federal Government.” As we reiterated in Northwest Austin, the Act constitutes “extraordinary legislation otherwise unfamiliar to our federal system.”
The fact that the Supreme Court took issue with the age (and hence relevance) of the formula is important to understand because the current court agreed with previously Supreme Court decisions that at the time the act was passed that it was constitutional because the formula was relevant and because at the time discrimination in elections was rampant, pervasive and extreme. The Court argued that although it is the case that racism, and racism in elections, still persists, that it is not as severe as it was in in 1965 and therefore the extreme deprivation of states’ rights for the purpose of protecting individual rights was not justified.
Kevin Clarkson, The Alaska Bar Rag, July – September, 2013, 37 AK Bar Rag 1 COURT’S DECISION ON VOTING RIGHTS ACT LONG OVERDUE
As the Court stated, “things have changed dramatically.” Voter registration rates in covered jurisdictions now approach parity. Blatantly discriminatory evasions of federal decrees are rare. And minority candidates hold office at unprecedented levels. The tests and devises that blocked access to the ballot have been forbidden nationwide for over 40 years. Congress itself, even while expanding and reenacting the VRA for another 25 years in 2006, recognized that “[s]ignificant progress has been made,” including increased African-American voter registration and voting–sometimes surpassing white voters, and increased numbers of African-Americans serving in elected office–a 1,000 percent increase since 1965 in the six States originally covered. The current state of the Nation, the Court held, no longer justifies disparate treatment amongst the sovereign States, at least not based upon the historic coverage formula.
Statistics demonstrate that the law likely proved effective at limiting discrimination in voting. By the end of 1965, approximately 250,000 African Americans registered to vote, and one third of them were registered by federal examiners (Wikipedia). By the end of 1966, a majority of African Americans registered to vote in 9 of the 13 southern states.
Even at the time that the VRA was reauthorized by Congress in 2006, the preclearance requirement/Section 4 (b) was particularly controversial because some politicians (mostly Republicans) argued that it was no longer necessary since discrimination in elections had (arguably) substantially declined and others argued that it was an undue extension of national/federal power into state election authority.
Moreover, the Supreme Court did not find that Section 2 of the VRA was unconstitutional (Shelby County never claimed that it was). Section 2 provides for individual lawsuits nationwide that can challenge any discrimination in voting. Although they infringe on states’ rights to a degree, they do not single out any particular state and, more importantly, do not subject any changes in voting procedures by any localities designated by Section 4 (b) to preclearance.
Kevin Clarkson, The Alaska Bar Rag, July – September, 2013, 37 AK Bar Rag 1 COURT’S DECISION ON VOTING RIGHTS ACT LONG OVERDUE
The Voting Rights Act of 1965. In the midst of the civil rights movement, Congress passed the VRA in 1965. Section 2 of the Act forbids, in all 50 states, 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.” At present Section 2 forbids any “standard, practice, or procedure” that “results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color.” Litigation, including injunctive relief, is available under Section 2 to prevent voting laws from going into effect. Section 2 is permanent, and applies nationwide. Other sections of the VRA, by contrast, targeted only some parts of the country. Section 4(b) created a coverage formula for Section 5. Section 5 provided that no change in voting procedures could take effect until it was approved by federal authorities in Washington, D.C. — either the Attorney General or a court of three judges. This prior approval, referred to as “preclearance,” could be obtained only if the jurisdiction proved that the change had neither “the purpose [nor] the effect of denying or abridging the right to vote on account of race or color.”
Pro teams defending the resolution should constitute their arguments around these two basic claims – (a) The preclearance formula is an intrusion on states’ rights and (b) The intrusion is not justified because racism in elections is not nearly as severe as it was in 1965.
Arguing Why the Court Was Wrong
The Con will need to argue that the Court was wrong and that Section 4(b) of the VRA did not/does not violate the Constitution. To win this argument, Con teams need to essentially argue the opposite of Pro teams – they need to argue that discrimination is still widespread/significant the intrusion on states’ right is justified.
Despite the strength of the states’ rights/federalism argument, it is important to remember that federalism is based on a balance between federal power and state power. State and local governments cannot, for example, blatantly violate individual rights in the name of federalism/the Tenth Amendment, and the national government has authority to pass legislation that is designed to enforce constitutional rights, such as those in the 15th Amendment if state practices violate those rights.
The federal authority for the Voting Rights Act stems in part from the 15th Amendment to the Constitution, which explicitly limits state power (the 50 states) to determine voter qualification by providing that “the right of U.S. citizens 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 15th Amendment was ratified in 1870 as the last of the Reconstruction Amendments (Wikipedia). Section 2 of the 15th Amendment states, “The Congress shall have power to enforce this article by appropriate legislation.”
Congress also claims authority to pass the VRA under the 14th Amendment to the Constitution. The 14th Amendment states that people should be treated equally:
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
It also says, “The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.”
Almost immediately (within hours) after the Supreme Court struck down the Section 4 (b), Texas and Mississippi announced they were implementing Voter ID laws that were previously denied in the preclearance process. Voter ID laws are considered discriminatory because minorities often lack appropriate IDs.
Like the 15th Amendment, the 14th Amendment is one of the Reconstruction Amendments.
So, based on the 14th & 15th amendments to the Constitution, Congress has the authority to issue legislation that protects minority voters against discrimination. But, that authority is not unlimited and must be necessary to protect minority rights. To win the latter argument, the Con needs to win that there is extensive discrimination in voting in the present day and that it will increase without an enforceable Section 5 remedy. There is a lot of evidence that supports this claim and argues that Section 5 preclearance and its enforcement through Section 4(b) is an appropriate remedy.
Donald Verrilli, Solicitor General, September 2012, Brief for the Respondents in Opposition, http://sblog.s3.amazonaws.com/wp-content/uploads/2012/09/12-96-Shelby-County-v-Holder-BIO.pdf
The district court granted summary judgment to the Attorney General, holding that Congress validly acted pursuant to its authority to enforce the guarantees of the Fourteenth and Fifteenth Amendments when it reauthorized Sections 4(b) and 5 of the VRA in 2006. The district court acknowledged this Court’s questions, expressed in Northwest Austin, about the continued constitutional viability of Section 5 and the scope of its geographic coverage. With those concerns in mind, the court undertook a detailed review of the “extensive 15,000- page legislative record” supporting the 2006 reauthorization. Applying the congruence-and-proportionality inquiry of City of Boerne v. Flores, 521 U.S. 507 (1997) (Boerne), the district court examined the evidence before Congress about the state of voting discrimination since the 1982 reauthorization—including testimony, reports, and data that revealed persisting racial disparities in voter registration, turnout, and minority electoral success; the nature¶ and number of Section 5 objections, including a significant number of objections based on discriminatory in- tent; the number of successful Section 5 enforcement actions; Section 2 lawsuits with outcomes favorable to minority voters1; the Attorney General’s requests for more information from jurisdictions submitting changes for preclearance and those jurisdictions’ reaction to such requests; the Attorney General’s use of federal observers; the prevalence of racially polarized voting and the role it plays in jurisdictions’ use of dilutive techniques; and Section 5’s deterrent effect. Based on its exhaustive review of the record, the court confirmed that Congress had found ample evidence of a history and ongoing pattern of purposeful, state-sponsored voting discrimination in covered jurisdictions. The court also credited Congress’s conclusion that Section 2 alone would be an “inadequate remedy” for discrimination in covered jurisdictions. The court further concluded that Section 5’s preclearance remedy is a congruent and proportional means of enforcing the guarantees of the Fourteenth and Fifteenth Amendments, particularly in light of the meaningful limitations built into Section 5, including the bailout mechanism. The district court also considered petitioner’s challenge to the scope of Section 5’s geographic coverage, as¶ embodied in Section 4(b). Cognizant of this Court’s observation that Section 4(b)’s disparate geographic coverage need be “sufficiently related” to the problem Section 5 targets, the district court concluded that Congress appropriately retained the existing coverage scope only after examining whether voting discrimination both “persisted in the jurisdictions traditionally covered by Section 4(b)” and “remained more prevalent in these jurisdictions than in the [non- covered] jurisdictions.” The court rejected petitioner’s argument that Section 4(b) was invalid because it retained “triggers” tied to decades-old election data. The court explained that the triggers “were never selected because of something special that occurred in those years; instead, they were chosen as mere proxies for identifying those jurisdictions with established histories of discriminating against racial and language minority voters.” “Notwithstanding the passage of time since the coverage formula was last updated,” the court concluded, discrimination in voting remained a serious problem in covered jurisdictions. The court also explained that Congress had compared contemporary voting dis- crimination in covered and non-covered jurisdictions based on, inter alia, evidence revealing that covered jurisdictions accounted for more than twice their proportional share (adjusted for population) of Section 2 law- suits with outcomes favorable to minority voters—even with Section 5’s preclearance remedy in place in those covered jurisdictions. The court there- fore concluded that Congress’s decision to maintain the existing scope of coverage (i.e., jurisdictions previously covered that had not bailed out) was a constitutional¶ means of combating voting discrimination because it was “sufficiently related to the problem that it targets.” Unintentional discrimination still constitutes racism¶ The court of appeals relied on this Court’s decision in Northwest Austin as the framework for its analysis, noting that the relevant inquiry is “whether section 5’s burdens are justified by current needs and whether its disparate geographic reach is sufficiently related to that problem.” Applying the Boerne frame- work, the court of appeals embarked on a “searching” and “probing” review of the legislative record, cognizant that Congress “acts at the apex of its power” when it “seeks to combat racial discrimination in voting.” The court first addressed whether Section 5’s burdens are justified by current needs. The court rejected petitioner’s argument that the only evidence relevant to the inquiry is evidence of “a widespread pattern of electoral gamesmanship showing systematic resistance to the Fifteenth Amendment.” The court explained that the validity of Section 5 does not rest on “whether the legislative record reflects the kind of ‘ingenious defiance’ that existed prior to 1965,” noting that such behavior is “virtually impossible” with Section 5 in place. The inquiry turns instead, the court explained, on “whether Congress has documented sufficiently widespread and persistent racial discrimination in voting in covered jurisdictions to justify its conclusion that section 2 litigation remains inadequate.” The court also rejected petitioner’s argument that it could only consider evidence of direct and intentional interference with the right to register and vote, to the exclusion of evidence of intentional vote dilution. The court explained that such discrimination violates the Fourteenth Amendment and is therefore relevant to the inquiry given that Congress relied on both the Fourteenth and Fifteenth Amendments in reauthorizing Section 5. The court further explained that “tactics like intentional vote dilution are in fact decades-old forms of gamesmanship” that discriminate against minority voters and were “well known” to Congress in 1965 and in 2006.
And many pundits and scholars predict there will be substantial increases in discriminatory voting practices as a result of the Shelby decision.
Norman Siegel and Janos Marton , CITYLAW, July / August, 2013, Shelby County v. Holder: Will Voting Rights Be Diminished?, p. 73, Norman Siegel and Janos Marton are attorneys associated with the law firm of Siegel Teitelbaum & Evans, LLP.
While southern states passing new restrictive measures on the heels of Shelby County may be receiving more attention, New York also now faces a void in voting rights protection. In light of the overt discrimination southern African-American voters faced, some would find it surprising that New York City likewise found its way to the DOJ preclearance list. In 1971, the DOJ determined that a literacy requirement imposed by local election law qualified as a “test or device” under the VRA (the literacy test dated back to a 1921 anti-immigrant statute that, at the time of the VRA, particularly affected Puerto-Ricans). This triggered the second prong of VRA analysis, which found that fewer than 50% of eligible voters had participated in the 1968 presidential elections in Brooklyn, Manhattan and the Bronx, placing them under preclearance coverage under Section 4(b).
In the decade that followed, the DOJ objected to several voting law changes. In 1974, the DOJ objected to the placement of polling places inside of apartment complexes with predominantly white, but not predominantly minority tenants, as well as a redistricting plan that would have diluted the minority vote in Kings and New York counties. The following year, the DOJ objected to another redistricting consolidation due to its adverse impact on minority representation.
In 1981, New York State Attorney General Robert Abrams submitted Congressional testimony that extending preclearance for the three counties was “essential.” Abrams noted that compliance was not “overly burdensome” and it “effectively serve[d] to protect the rights of minority citizens.” Foreshadowing Justice Ginsberg, Abrams pushed back against those who thought the VRA unnecessary due to the rarity of objections to voting law changes, claiming “these figures are evidence of the Act’s effectiveness as a deterrent.” Abrams also mentioned the rise of subtle voter dilution schemes such as redistricting.
Recently Section 4(b) has been used to protect the voting rights of Asian-Americans. In 1994, the DOJ, at the urging of the Asian American Legal Defense and Education Fund (AALDEF), blocked ballots that would have failed to include candidate names in Chinese, forcing the City to provide corrected ballots in time for the election. In 1998, AALDEF again successfully sought DOJ intervention when the State proposed an at-large community school board vote that would have diluted the Asian-American vote. As recently as 2001, the DOJ prevented the City Board of Elections from closing a polling location in Chinatown following the September 11th attacks.
Despite these incidents, almost all of New York’s voting changes have been approved by the DOJ. More than thirty years after Abrams’ testimony, State Board of Elections Co-Chair Doug Kellner also endorsed the deterrent principle as the reason that so few of New York’s voting law proposals have been rejected. However, now that the DOJ no longer has to preclear New York’s voting changes, the City Board of Elections has already successfully pushed legislation to bring back New York’s old lever voting machines for a potential mayoral primary run-off, despite objections from good government groups and disability activists. The City Council and State Legislature will also be able to draft future district lines without submitting them to the DOJ for the first time since the 1960s. The tumult surrounding the last round of state legislative districting led to a lawsuit, Favors v. Cuomo, which is ongoing. Notably, should plaintiffs succeed in having state senate lines redrawn, there will no longer be a preclearance requirement for the redrawn map.
Governor Andrew Cuomo has called the Shelby County decision “deeply troubling”, and suggested that “[w]e must double down on efforts to ensure that the voices of all voters can be heard at the voting booth,” though to date he has only called on Congress to amend the VRA. Cuomo could use his leadership and political capital to push for the adoption of a New York Voting Rights Act that mirrors the pre-Shelby federal VRA. The legislation could require all 61 counties to preclear voting changes with the office of the New York Attorney General through a simple and inexpensive process. While it is unlikely that all 61 counties suffer from voting rights issues, the legislation should have a similar “bailout” provision to former Section 4(b). That would avoid political squabble about which jurisdictions to include initially, while not bogging down the Attorney General’s office with voting law changes from nondiscriminatory jurisdictions.
Con teams also need to answer the argument that the Section 4(b) formula is static and locks-in a formula for determining which jurisdictions are required to go through preclearance. There are a number of answers to this argument.
First, the VRA contains both “bail out” and “bail in” provisions. “Bail out” provisions allow jurisdictions to no longer be bound by Preclearance requirements if they meet certain criteria. “Bail in” provisions allow it to be decided that more jurisdictions are required to go through preclearance.
Supreme Court Justice Ginsburg, 2013, (+ justices Breyer, Sotomayor, and Kagan, Shelby County v. Holder, June 25, http://tinyurl.com/qzrpndc)
The case for retaining a coverage formula that met needs on the ground was therefore solid. Congress might have been charged with rigidity had it afforded covered jurisdictions no way out or ignored jurisdictions that needed superintendence. Congress, however, responded to this concern. Critical components of the congressional design are the statutory provisions allowing jurisdictions to “bail out” of preclearance, and for court-ordered “bail ins.” The VRA permits a jurisdiction to bail out by showing that it has complied with the Act for ten years, and has engaged in efforts to eliminate intimidation and harassment of voters. 42 U. S. C. § 1973b(a) (2006 ed. and Supp. V). It also authorizes a court to subject a noncovered jurisdiction to federal preclearance upon finding that violations of the Fourteenth and Fifteenth Amendments have occurred there. Congress was satisfied that the VRA’s bailout mechanism provided an effective means of adjusting the VRA’s coverage over time. H. R. Rep. No. 109-478, at 25 (the success of bailout “illustrates that: (1) covered status is neither permanent nor over-broad; and (2) covered status has been and continues to be within the control of the jurisdiction such that those jurisdictions that have a genuinely clean record and want to terminate coverage have the ability to do so”). Nearly 200 jurisdictions have successfully bailed out of the preclearance requirement, and DOJ has consented to every bailout application filed by an eligible jurisdiction since the current bailout procedure became effective in 1984. The bail-in mechanism has also worked. Several jurisdictions have been subject to federal preclearance by court orders, including the States of New Mexico and Arkansas. This experience exposes the inaccuracy of the Court’s portrayal of the Act as static, unchanged since 1965. Congress designed the VRA to be a dynamic statute, capable of adjusting to changing conditions. True, many covered jurisdictions have not been able to bail out due to recent acts of noncompliance with the VRA, but that truth reinforces the congressional judgment that these jurisdictions were rightfully subject to preclearance, and ought to remain under that regime.
Second, as already discussed, there is more recent evidence that discrimination continues. This means that the formula is still relevant.
Some advocates of the decision also argue that the protections in Section 2 of the VRA are significant enough to combat discrimination on their own and that Section 5 is not needed.
The weakness of this argument is that Section 2 requires individuals who were arguably wronged by changes in election procedure to bring a claim. There are two limitations to this. First, most individuals lack the financial resources to instigate a court case. Second, it would be incredibly difficult for them to do this before the election.
Sudeep Paul, JD, 2013, Duke Journal of Constitutional Law & Public Policy Sidebar, ARTICLE: THE VOTING RIGHTS ACT’S FIGHT TO STAY RATIONAL: SHELBY COUNTY V. HOLDER, p. 297
Next, the Court will have to determine if Section 2 case-by-case litigation can adequately replace the protection of preclearance. Several covered states have noted that “Section 2 litigation is so costly and burdensome,” compared to applying for preclearance. Furthermore, in Section 2 lawsuits the impetus of bringing forth an action rests entirely on individual litigants who do not typically have the resources to shepherd an entire case, whereas in preclearance the onus is on States who are far better equipped. Individual litigants must themselves pursue temporary injunctions if they want the discriminatory voting practice suspended for the duration of the lawsuits. The difficulty in obtaining temporary injunctions coupled with the incumbency pitfalls of Section 2 litigation demonstrates that Section 2 lawsuits cannot, on their own, adequately ensure the rights of the Fifteenth Amendment.
Attacking the Decision – Core Arguments for the Con
Any good debate resolution is based around the idea that there should be strong arguments on both sides of the resolution and this resolution is one of those.
The core arguments for the Con have already been discussed, but in order to win a debate you need to do more than present the strong arguments for your side. Ultimately, you need to argue that on-balance your side should win. I think there are three arguments that you can use to tilt this debate in your direction.
First, you should argue that the right to vote is a fundamental right and that courts should do everything that they need to do to protect that right.
Supreme Court Justice Ginsburg, 2013, (+ justices Breyer, Sotomayor, and Kagan, Shelby County v. Holder, June 25, http://tinyurl.com/qzrpndc)
In answering this question, the Court does not write on a clean slate. It is well established that Congress’ judgment regarding exercise of its power to enforce the Fourteenth and Fifteenth Amendments warrants substantial deference. The VRA addresses the combination of race discrimination and the right to vote, which is “preservative of all rights.” When confronting the most constitutionally invidious form of discrimination, and the most fundamental right in our democratic system, Congress’ power to act is at its height. The basis for this deference is firmly rooted in both constitutional text and precedent. 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.” 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.”
Second, you should argue as a corollary that racism is an inherent evil that must be combatted.
Memmi ’00 [2000, Albert is a Professor Emeritus of Sociology @ Unv. Of Paris, Albert-; RACISM, translated by Steve Martinot, pp.163-165]
The struggle against racism will be long, difficult, without intermission, without remission, probably never achieved, yet for this very reason, it is a struggle to be undertaken without surcease and without concessions. One cannot be indulgent toward racism. One cannot even let the monster in the house, especially not in a mask. To give it merely a foothold means to augment the bestial part in us and in other people which is to diminish what is human. To accept the racist universe to the slightest degree is to endorse fear, injustice, and violence. It is to accept the persistence of the dark history in which we still largely live. It is to agree that the outsider will always be a possible victim (and which [person] man is not [themself] himself an outsider relative to someone else?). Racism illustrates in sum, the inevitable negativity of the condition of the dominated; that is it illuminates in a certain sense the entire human condition. The anti-racist struggle, difficult though it is, and always in question, is nevertheless one of the prologues to the ultimate passage from animality to humanity. In that sense, we cannot fail to rise to the racist challenge. However, it remains true that one’s moral conduct only emerges from a choice: one has to want it. It is a choice among other choices, and always debatable in its foundations and its consequences. Let us say, broadly speaking, that the choice to conduct oneself morally is the condition for the establishment of a human order for which racism is the very negation. This is almost a redundancy. One cannot found a moral order, let alone a legislative order, on racism because racism signifies the exclusion of the other and his or her subjection to violence and domination. From an ethical point of view, if one can deploy a little religious language, racism is “the truly capital sin.”fn22 It is not an accident that almost all of humanity’s spiritual traditions counsel respect for the weak, for orphans, widows, or strangers. It is not just a question of theoretical counsel respect for the weak, for orphans, widows or strangers. It is not just a question of theoretical morality and disinterested commandments. Such unanimity in the safeguarding of the other suggests the real utility of such sentiments. All things considered, we have an interest in banishing injustice, because injustice engenders violence and death. Of course, this is debatable. There are those who think that if one is strong enough, the assault on and oppression of others is permissible. But no one is ever sure of remaining the strongest. One day, perhaps, the roles will be reversed. All unjust society contains within itself the seeds of its own death. It is probably smarter to treat others with respect so that they treat you with respect. “Recall,” says the bible, “that you were once a stranger in Egypt,” which means both that you ought to respect the stranger because you were a stranger yourself and that you risk becoming once again someday. It is an ethical and a practical appeal – indeed, it is a contract, however implicit it might be. In short, the refusal of racism is the condition for all theoretical and practical morality. Because, in the end, the ethical choice commands the political choice. A just society must be a society accepted by all. If this contractual principle is not accepted, then only conflict, violence, and destruction will be our lot. If it is accepted, we can hope someday to live in peace. True, it is a wager, but the stakes are irresistible.
This argument is magnified when the racism is manifest in voting laws because that implicates all other rights and social policies.
Third, you should argue that presumption should lie with the VRA because Congress is responsible for enforcing the Reconstruction Amendments that were designed to prevent discrimination and because it has been effective and we should allow it to finish the job
Supreme Court Justice Ginsburg, 2013, (+ justices Breyer, Sotomayor, and Kagan, Shelby County v. Holder, June 25, http://tinyurl.com/qzrpndc)
In the Court’s view, the very success of § 5 of the Voting Rights Act demands its dormancy. Congress was of another mind. 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, 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 back sliding. Those assessments were well within Congress’ province to make and should elicit this Court’s unstinting
Fourth, as a corollary to this presumption argument, you should contend that the Court should defer to congress (that it should give them the benefit of the doubt) when Congress constructs legislation, particularly legislation that is driven from their amendment authority to protect rights.
Ellen D. Katz is the Ralph W. Aigler Professor of Law, University of Michigan Law School, How big is Shelby County?, SCOTUSblog (Jun. 25, 2013, 6:31 PM), http://www.scotusblog.com/2013/06/how-big-is-shelby-county/
Regarding deference, not that long ago, the Justices believed Congress held something close to plenary power when it crafted remedies addressing racial discrimination in voting. In case after case, the Justices made clear that they would not second-guess congressional judgments on the subject. Even as the Justices began looking more rigorously at particular types of congressional remedial action elsewhere, they repeatedly distinguished the invalidated laws from the VRA and celebrated provisions like preclearance as paradigmatic examples of permissible congressional action.
Not so today. In a blanket judgment, the Chief Justice flatly rejects Congress’s judgment that preclearance provides a necessary safeguard and that places subject to its requirements still warrant distinct treatment. The Court was clearly unhappy with what it perceived to be a lack of deliberation on the part of Congress, with support for reauthorization of the statute largely predating the assembly of a record to justify it. Critics of Congress have laid, and undoubtedly will continue to lay, blame with Congress for failing to update the formula and adding amendments in 2006 that broadened the statute’s regulatory reach. And it seems fair to say that Congress would indeed have made the Chief Justice’s decision more difficult had it altered the formula for coverage in response to the facts gathered at its extensive hearings.
And yet, Congress did assemble a lengthy record with evidence supporting its own judgment that the VRA’s preclearance requirement is necessary and important in covered jurisdictions. Shelby County’s dismissal of that legislative judgment markedly breaks from precedent upholding congressional discretion in this realm. The decision significantly diminishes Congress’s ability to craft future remedies for racial discrimination in voting and beyond. Indeed, after today, an administrative agency acting within the sphere of its expertise enjoys more discretion than does Congress when acting in the realm in which its power was once viewed to be at its apogee.
At oral argument last winter, Justice Kagan bristled at the notion that the Court, rather than Congress, was the proper institution to decide when remedial action in this realm was needed. Justice Scalia was nevertheless convinced that “[t]his is not the kind of question you can leave to Congress.” Today’s decision makes clear that a majority of the Court shares this view. Earl Warren would have been astounded. William Rehnquist, too.
As notable is the Court’s own reason for deeming preclearance obsolete. To see why, consider what will happen in once-covered jurisdictions now that the VRA’s preclearance obligation has been lifted. This is not difficult to do.
No one, of course, thinks that Jim Crow will return full force as a result of today’s decision. It is not plausible to think that scores of public officials will once again openly and routinely defy federal law and explicitly endorse race-based denials of fundamental rights.
At the same time, there is little doubt that, absent preclearance, minority voters in covered jurisdictions will confront new obstacles making political participation more difficult. Indeed, within hours of today’s decision, Texas moved to implement redistricting plans and a voter identification measure that federal courts had blocked just last year, holding that they were discriminatory within the meaning of Section 5.
It is true, of course, that harsh voter ID requirements and burdensome districting boundaries are not unique to covered jurisdictions. Nevertheless, Congress had evidence showing electoral devices that burden minority voters are found disproportionately in covered jurisdictions, and that these devices tend to be more severe and restrictive than those used in places outside the reach of the VRA’s regional requirements.
The Chief Justice’s opinion today is as indifferent to this evidence as it is to evidence indicating that observed regional disparities would have been far larger in the absence of the preclearance requirement. His opinion seems prepared to accept that, as a result of the ruling, minority voters in (formerly) covered jurisdictions will confront more severe and more numerous burdens even than those faced by both minority voters elsewhere and by white voters at home. The majority nevertheless deemed this consequence to be of no moment so long as the new burdens do not amount to “anything approaching the ‘pervasive,’ ‘flagrant,’ ‘widespread,’ and ‘rampant’ discrimination that faced Congress in 1965, and that clearly distinguished the covered jurisdictions from the rest of the Nation at that time.” Nothing short of that, it seems, will do.
Fifth, you need to minimize the significance of the “federalism” argument. You can do this with a number of arguments. One, you should argue that individual rights are more important than states’ rights. Two, you can argue that the balance between the state and federal governments shifts all the time with different federal policies and that
Defending the Decision – Core Arguments for the Pro
There are strong arguments in favor of the Con. To win on the Pro you are going to need to do a good job packaging a comparative set of arguments.
I think that the most important thing that you need to do is to arrest the strong racism claim that the Con is going to be able to articulate and I think that there are a number of approaches that you can take to this. Given the strength of the claim, I’d probably try all of them in the debate.
First, you should make it clear that you are NOT arguing against the preclearance requirement but only siding with the Court that the Preclearance formula is too old. I’d even go so far in the debate as to take the position that Congress should update the formula/make a new one and that the only thing the Court said is unconstitutional is a formula that is 40 years old, not a new one.
Second, you should argue that other actions, such as Section 2 actions are designed to fight racism in a much fairer way.
Third, you should be clear that the role of the Court is to police violations of the Constitution and to balance interests and conflict Amendments against each other. Court justices cannot prioritize any one value over any others.
Fourth, you can argue that racism in voting is less blatant and severe than it was in 1965. You will need to win this argument anyhow to win that the current formula is not relevant, but the important point here is that you are simply arguing that racism is not as pronounced at the time, not that it doesn’t exist.
Combined, these arguments will help you minimize the rights and racism claims of the Con. It is absolutely essential to do this to win the debate.
In addition to minimizing the race claim, you need to make a strong argument that the preservation of states’ rights will best protect liberty.
Ernest Young, Law Professor, University of Texas, TEXAS LAW REVIEW, November 2004, pp. 59-60
More fundamentally, our federalism has always been justified as a bulwark against tyranny. Madison extolled federalism as part of the “double security” that the new Constitution would provide for the people; just as the three branches of the central government were to check one another, the state governments would check the center. As Lynn Baker and I have discussed elsewhere, Madison’s discussion in Federalist 46 emphasized worst case scenarios, in which the states would have to oppose the national government militarily, and this emphasis has sometimes distracted critics of federalism from more prosaic – but also more relevant – mechanisms by which federalism protects liberty. Even in the Founding period, however, state autonomy buttressed individual liberty in other, less dramatic ways. States may oppose national policies not only militarily but politically, and in so doing they may serve as critical rallying points for more widespread popular opposition. Madison and Jefferson, out of national power during the Federalist administration of John Adams, worked through the Virginia and Kentucky legislatures to oppose the Alien and Sedition Acts. The states thus, as Professor Friedman puts it, “serve as an independent means of calling forth the voice of the people.” More recently, “Some state and local governments have proven themselves formidable lobbyists and indefatigable litigants” on issues such as affirmative action, benefits for the disabled, and environmental policy
A Few Concluding Thoughts
1 – This is a difficult topic to debate. Debating this topic requires a pretty strong understanding of some core issues in constitutional law as well as the history of racism in voting. This is a lot to learn, but I think the plunge is worth the effort – not just for the competitive gains but also for the academic merits.
2 – This topic is very well worded. I would it would have clarified Section 4 (b) beyond section 4, but it is a very well worded resolution that access the core question in a legal dispute about one of the most important pieces civil rights legislation in the twentieth century.
3 – It’s a close debate. Personally, I think the stronger arguments favor the Con for the reasons I explained above, but it is a 5-4 court decision.