Tag: section 5

Voting Rights in Massachusetts and Mississippi

During last week’s oral argument in Shelby County v. Holder – the challenge to Section 5 of the Voting Rights Act – Chief Justice Roberts questioned the Solicitor General concerning the rationality of the VRA’s coverage formula (Section 4(b)) by comparing non-covered Massachusetts with Mississippi, which remains subject to federal preclearance based on registration and voting data from 1964.  As the Chief Justice pointed out (page 32 of the transcript), Massachusetts has the “worst ratio of white voter turnout to African American voter turnout” while Mississippi “has the best.”  Massachusetts likewise “has the greatest disparity in registration between white and African American” while Mississippi is third best in the nation, “where again the African American registration rate is higher than the white registration rate.”

The Chief Justice’s remarks apparently angered the Massachusetts Secretary of State.  According to a Politico story, Secretary William Galvin found it “just disturbing that the chief justice of the United States would spew this kind of misinformation” and that the “2010 numbers don’t support what Roberts is saying.”  Galvin continued: “He’s wrong, and in fact what’s truly disturbing is not just the doctrinaire way he presented by the assertion, but when we went searching for an data that could substantiate what he was saying, the only thing we could find was a census survey pulled from 2010 … which speaks of noncitizen blacks … .  We reached out to academics at many institutions … and they could find no record either, they were puzzled by [Roberts’s] reference.”

But it’s Secretary Galvin who has his facts wrong—a mistake he could have avoided simply by reviewing the lower court decision that the Supreme Court is considering.  In his dissenting opinion, D.C. Circuit Judge Stephen Williams examined the voter registration and voting statistics from the 2004 presidential election – not the 2010 mid-term elections—because it was the last national election before Congress reenacted Section 5 in 2006.  The question the Supreme Court is considering—which seems to be lost on Galvin – is whether Congress acted appropriately in retaining the same coverage formula that has been in place since 1975 despite significant changes in the country.  To answer that question, the Court must of course look at the statistics that were in the 2006 legislative record. And those statistics, which are publicly available and come directly from the Census Bureau, fully vindicate the Chief Justice’s statement.

Will Debate Constitutionality of the Voting Rights Act — Anytime, Anywhere

Three years ago, some law professors were having a hard timing finding someone to debate the constitutionality of Obamacare’s individual mandate.  I naively stepped up to the plate, which resulted in over 100 debates, speeches, panels, and public events (and, as we know, an invalidation of the mandate but salvage of the relevant provision in the form of a tax).

Now we see a similar predicament with respect to Section 5 of the Voting Right Act, the provision that effectively makes the federal government a proconsul with respect to election administration in a seemingly random assortment of states, counties, and towns around the country.  As I’ve blogged and written in a Supreme Court brief, Section 5’s extraordinary powers were justified only under Jim Crow’s exceptional conditions; the Voting Rights Act’s success in eradicating those conditions has happily obviated Section 5’s constitutional legitimacy.  (As I noted more recently, and wrote in another brief, Section 2 has its problems as well.)

Yet my view isn’t shared in legal academia – surprise, surprise – and a leading election law scholar posits that “the case for Section 5’s constitutionality is so clear that the liberal election law professors simply have the better of the argument!”  Three weeks before the Supreme Court hears argument in the pivotal case of Shelby County v. Holder, there is apparently a dearth of scholars willing to speak out against this egregious violation of federalism and equal protection.

Well, in the words of How I Met Your Mother’s Barney Stinson, challenge accepted!

I may not be full-time faculty anywhere – is that a negative? – but I hereby announce that I will travel anywhere at anytime to debate the constitutionality of Section 5 of the Voting Rights Act. Whoever sets up the debate has to pay my travel expenses and take me out to a nice dinner, but that’s it.  Any takers?

Modern Voting Rights Act Takes Another Constitutional Stumble

In 2009, Irving, Texas, was forced to redraw its city council districts after a federal court held that its multi-member-district system discriminated against Hispanic voters in violation of Section 2 of the Voting Rights Act, which protects the rights of racial and linguistic minorities to elect their preferred candidates (whatever that means). Following complex Section 2 precedent, the court employed the requisite “citizen of voting age population” (CVAP) standard and found that, in the absence of at-large elections, Irving’s Hispanic voters could have constituted their own majority district.

When Irving finished redrawing its map, the total population count of residents inhabiting each district was roughly equal and one was indeed majority-Hispanic. Because the redistricting process used total population instead of CVAP, however, that particular district had a significant concentration of non-citizen residents. A relatively small constituency of eligible voters in that district thus had their votes so “over-weighted” that their voting power was effectively double that of voters in the other districts (which, again, were similarly populated but had twice the number of eligible voters).

Irving citizens sued the city, alleging violations of their voting rights as guaranteed by the one-person, one-vote (OPOV) principle under the Fourteenth Amendment’s Equal Protection Clause. The U.S. Court of Appeals for the Fifth Circuit affirmed a dismissal of these claims, following circuit precedent holding that the decision to use either total population or CVAP when applying OPOV should be left to elected officials’ discretion. Astonishingly, even though courts are required to use CVAP when examining Section 2 racial-discrimination claims—see above—the Fifth Circuit completely ignored the CVAP disparities in the redrawn districting plan.

Cato has now filed an amicus brief supporting the Irving citizens’ request that the Supreme Court take the case. We have frequently argued that courts confront a “bloody crossroads” when trying to reconcile the modern Voting Rights Act with the Constitution. Here, not only has the Fifth Circuit illustrated the tension between Section 2 and the Fourteenth Amendment, but similar rulings in the Fourth and Ninth Circuits—either deferring to the political branches or precluding the use of CVAP altogether—have heightened the conflict.

The Fourteenth Amendment and OPOV are emphatically within the province of the judiciary to enforce. We thus urge the Court to review the intolerable contradiction that arises when Section 2, intended to enforce the guarantees of the Fourteenth Amendment, is used to violate OPOV.

While once a functional proxy for equalizing the voting strength of eligible voters, the total population metric has become imprecise and outmoded. In areas with high concentrations of non-citizen, non-voter residents, it can conceal substantive demographic differences that undermine the principle of voter equality. CVAP, by contrast, is the most precise measure of the substantive electoral equality and the proper means for reconciling the conflict between Section 2 and the Fourteenth Amendment.

The name of the case is Lepak v. City of Irving. The city and certain activist groups that have intervened in the case will now file their opposition to the petition for review, and then the Supreme Court will decide this spring whether to take the case and set it for argument in the fall.

Section 5 of the Voting Rights Act Has Got to Go

This blogpost (and the brief described herein) was co-authored by Cato legal associate Matt Gilliam.

Today Cato filed an amicus brief supporting the petitions for Supreme Court review in two cases involving similar challenges to the Voting Rights Act of 1965. Specifically, the cases challenge the requirement under Section 5 that certain jurisdictions (as determined by a 35-year-old formula in Section 4(b)) receive approval (“preclearance”) from the Department of Justice or a special federal court in Washington before implementing any change to election regulations, no matter how modest.

In Nix v. Holder, the Department of Justice rejected the decision by voters in Kinston, North Carolina, to make local elections nonpartisan – as is the case in most of the state – on the basis that “the elimination of party affiliation on the ballot will likely reduce the ability of blacks to elect candidates of choice.” In Shelby County v. Holder, an Alabama county sued to attain preemptive resolution of the “serious constitutional questions” noted by the Supreme Court in the last significant VRA challenge in 2009. Both lawsuits hinge on the modern validity of Section 5, and both were turned back by the U.S. Court of Appeals for the D.C. Circuit (Shelby County over a heated dissent by Judge Stephen Williams). Both now seek Supreme Court review, and Cato’s amicus brief urges the Court to hear either case, or both.

The Fifteenth Amendment gives Congress the power to craft “appropriate” enforcement legislation to secure the rights of all citizens to vote, regardless of race or color. Congress’s initial attempts to enforce those rights, however, were frustrated by tactics designed to evade federal authority. Congress thus enacted Section 5, meant to apply to jurisdictions with a history of disenfranchising black voters. The Supreme Court, in upholding Section 5 against constitutional challenge in the 1960s, recognized that the measure is extraordinary, exacting perverse and substantial costs on federalism and equal protection principles – but as long as Congress’s electoral concerns were substantiated, Section 5 remained constitutionally justified. Enforcement of the VRA went on to successfully defeat the systemic discrimination that had once justified Section 5.

In 2006, however, Congress reauthorized the VRA for another 25 years, without explaining why certain jurisdictions had to be subject to such an intrusive process on the basis of an obsolete formula, particularly when all of the evidence showed that the goal of minority representation and access to voting in the South was achieved (and indeed that black registration and voting rates were higher in covered jurisdictions than elsewhere in the country). Indeed, the 2006 revisions made matters worse, authorizing the federal government to reject any electoral changes in a covered jurisdiction, no matter how small or insignificant, whenever they are believed to evince “any discriminatory purpose” or “diminish[] the ability of minority citizens … to elect their preferred candidate of choice.” Beyond the harm to federalism, the modern Section 5 thus creates a serious equal protection dilemma, mandating that covered jurisdictions factor race into their election laws even as the Fourteenth and Fifteenth Amendment’s non-discrimination principles forbid it.

In addition to these problems, Section 5 cannot coexist with Section 2 (a provision aimed at discrete instances of discrimination in voting). The Supreme Court should excise Section 5, leaving Section 2 private rights of action as the proper remedy for voter disenfranchisement. Because Section 5’s burdens are no longer justified by “current needs,” they fail to satisfy the Court’s requirements for “appropriate” enforcement legislation. In other words, Section 5’s early success quickly obviated its legitimacy. Accepting that point is not an admission of defeat, but a declaration that the VRA has achieved its promise.

The Court will decide this fall whether to hear Nix v. Holder and/or Shelby County v. Holder.