Tag: voting rights

Modern Voting Rights Act Takes Another Constitutional Stumble

By
Ilya Shapiro

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.

Topics: 
Government and Politics, Law and Civil Liberties

Don’t Confuse Me with the Facts

By
Roger Pilon

Opposition is building to the proposed D.C. Voting Rights Act because it also restricts D.C.’s draconian gun-control laws. Mary G. Wilson, president of the League of Women Voters of the United States, and Billie Day, president of the League of Women Voters of the District of Columbia, said today that “asking citizens to sacrifice their safety in order to have representation in Congress is unacceptable.”

And on NPR’s Morning Edition today, we heard the thoughts of D.C. councilwoman Mary Cheh, my con law professor: “I would rather wait to eternity before I bow down to the gun lobby and say ‘The only way I’m gonna get this is if we give up the right to protect ourselves.’”

The District’s gun laws protect us? By keeping guns out of the hands of criminals?

Topics: 
Law and Civil Liberties

NAMUDNO v. Holder Update

By
Ilya Shapiro

Editor’s Note: Cato scholar Ilya Shapiro is blogging about the NAMUDNO v. Holder case from the Supreme Court, and will provide dispatches throughout the Court’s session.

As I walk away from the Court, with the sounds of the NAACP rally fading in the distance, I’m no clearer on how this case will be resolved than when I went into the building early this morning.

This uncertainty mostly results from the rather technical issues surrounding the Voting Rights Act’s “bailout” provision, as well as how narrowly the Court will want to construe the municipal utility’s challenge (as-applied, facial, or some other novel formulation).

What is clear is that the “liberal” justices, especially Ginsburg and Breyer, were downright hostile to the idea of curtailing federal supervision of state voting practices, while the “conservative” justices (not including Thomas, who was characteristically silent) found disingenuous assertions that VRA violations were systemic, or any more pervasive in the covered (mostly southern) jurisdictions than in non-covered ones.

Justice Kennedy sided strongly with the latter group, but, again, that may not mean much for the final contours of the Court’s decision.

However the case comes out, it is important to remember that even a complete striking of Section 5 does not leave voters who have been discriminated against without recourse in federal court; Section 2 has and will continue to be used to remedy VRA violations on a case-by-case basis (and without Section 5’s onerous preclearance requirements).

Topics: 
Law and Civil Liberties

No Taxation Without Representation? OK, I’ll Take the No Taxation

By
Ilya Shapiro

The Senate is taking up, and looks ready to pass, legislation granting the District of Columbia full representation in the House of Representatives.  And the bill is co-sponsored by Utah’s Orrin Hatch, whose state would also get one additional House member – but only until 2012, when the new census will again reapportion representatives nationwide.

The problem (setting aside the cheap politics of adding one safe seat for each party) is that the DC Voting Rights Act is facially unconstitutional. The plain text of Article I limits representation in Congress to voters residing in “states” – a species of jurisdiction that the District of Columbia is not.

Now, this simple legal fact does not affect the moral argument that the voices of D.C. residents should resound in Congress no less than those of their fellow citizens of the several states. To remedy this historical accident – the Founders did not conceive that anyone would live permanently in the federal district, because the government was not supposed to grow this large – we have two constitutional options:

1) A constitutional amendment – like the 23rd Amendment, which in 1961 (yes, only that recently!) gave D.C. presidential electors, and without which it would be unconstitutional for D.C. residents to cast votes for president; or

2) Retrocession to Maryland – akin to the part of the original District that was returned to Virginia, all but the land under the Congress, White House, and certain other federal buildings could rejoin Maryland, and the people living there would then be counted toward that state’s congressional delegation (and be represented by Maryland’s two senators).

Better yet, if the political rallying cry for the D.C. Voting rights movement is “no taxation without representation,” then I suggest that we focus on the first part of the equation and cease federal taxation of D.C. residents. Regardless of the optimal solution, however, the course that Congress has chosen simply will not fly if we take the Constitution seriously.

Topics: 
Government and Politics, Law and Civil Liberties