Washington Lawyer

Voting Rights Act Post Shelby-County

From Washington Lawyer, December 2013

By Sarah Kellogg

Voting Rights Act protestersIn the days after the U.S. Supreme Court issued its decision in Shelby County v. Holder, gutting a critical section of the once-inviolate Voting Rights Act of 1965 (VRA), there was a groundswell of grievances and accolades. After all, the justices had toppled the status quo on voting rights in America and declared Jim Crow at the ballot box dead.

Civil rights groups could no longer rely on the VRA’s preclearance requirement to police the voting regulations of states and local governments that had been singled out for past discriminatory behavior. Post-Shelby County, every state could freely write and enact its own voting regulations without obtaining prior approval from the U.S. Department of Justice (DOJ) or the federal courts.

The Court’s decision immediately appeared to widen the already growing gulf between the right and the left on civil rights and voting. Critics blasted Chief Justice John Roberts and the conservative majority for tossing aside their cherished affection for strict constructionism in favor of political axe grinding. Conservatives derided Democrats and progressives for giving life support to a view of racial history and politics that they claim died long ago.

Under the barrage of attacks, there was a sense that the future of civil rights and voting was being determined not by a common vision of the Constitution or law but by profoundly dissimilar world views.

Shelby County is a decision where the majority and the dissent see different political worlds,” says John “Jack” Hardin Young, counsel at Sandler, Reiff, Young & Lamb, P.C. and former special counsel to the Democratic National Committee. “It’s a troubling part of where our judicial system is heading. From Bush v. Gore to Shelby County, the Court’s majority and minority have fundamental differences on the underlying facts, which in turn are used to justify the constitutional outcomes.”

The months since the decision have been marked by resignation and rebellion. Governors in Texas and North Carolina—and their state legislatures—have energetically rallied the troops to push through significant changes to voter identification and registration laws, and this time without the DOJ looking over their shoulders. In Texas, Gov. Rick Perry drove the adoption of a new map for congressional and state legislative districts to replace the one held up by the federal courts. Perry and other governors were certain the DOJ had overstepped its authority, and they welcomed the Court’s new view of the VRA and states rights.

“The Voting Rights Act was very important legislation at the time,” says Charles R. Spies, who leads Clark Hill PLC’s national political law practice. “Certain concepts behind it remain important, but they should be adapted to meet the current conditions and reflect analysis and data that is accurate for today.”

Still smarting from the Court’s decision, U.S. Attorney General Eric Holder announced in July that the Obama administration was employing a new strategy to protect voting rights, namely, using other sections of the VRA as a basis for its lawsuits. Holder took aim at Texas and North Carolina. He also used the bully pulpit of his office to affirm the necessity of preclearance for certain jurisdictions.

“My colleagues and I are determined to use every tool at our disposal to stand against discrimination wherever it is found,” Holder told the National Urban League in July. “But let me be very clear: these remaining tools are no substitute for legislation that must fill the void left by the Supreme Court’s decision. This issue transcends partisanship, and we must work together. We cannot allow the slow unraveling of the progress that so many, throughout history, have sacrificed so much to achieve.”

Amid the turmoil, some believe the Court might have inadvertently handed civil rights and voting rights advocates an opportunity. They argue that the current disarray can be used to broaden the public’s understanding of voting rights issues and to unite activists who feel the VRA desperately needed to be modernized to reflect the forms of discrimination being used today.

“People tend to have important conversations when things are really broken,” says Rob Richie, executive director of FairVote, a Maryland-based organization that advocates for voting rights protections. “We all start to ambulance chase on a major level when things have gone wrong, but I’m optimistic about the changes that could happen out of this environment. When change eventually comes, it often can happen relatively quickly when we’re at a point of crisis.”

What Remains of the VRA
If there is a crisis, it stems from the unmistakable signal the Supreme Court sent with its decision in Shelby County. The Court determined that Section 4 of the VRA was unconstitutional. In tossing out the provision, it eliminated one of the federal government’s most effective tools over nearly 50 years in curbing efforts to limit the voting rights of racial and ethnic minorities.

“It’s the only logical conclusion that the Court could come to,” says Ilya Shapiro, a senior fellow in constitutional studies at Cato Institute, a free-market think tank based in Washington, D.C. “The coverage formula is clearly outdated and didn’t correspond to the facts on the ground.”

Section 4 outlined the formula used to determine whether an entity was covered by the law’s preclearance requirements due to its history of discriminatory practices. The Court objected to the formula because it did not reflect “current conditions” but rather often seemed to rely on behavior from decades ago. The VRA’s preclearance rules applied to nine states—Alabama, Alaska, Arizona, Georgia, Louisiana, Mississippi, South Carolina, Texas, and Virginia—and a myriad of counties and municipalities in California, Florida, Michigan, New York, North Carolina, and South Dakota.

“Regardless of how one looks at that record,” the Court’s majority commented, “no one can fairly say that it shows anything approaching the ‘pervasive,’ ‘flagrant, ‘widespread,’ and ‘rampant’ discrimination that clearly distinguished the covered jurisdictions from the rest of the Nation in 1965.” The majority opinion was written by Chief Justice Roberts and was joined by Justices Samuel A. Alito, Anthony M. Kennedy, Antonin Scalia, and Clarence Thomas.

The majority rapped Congress over the knuckles for not using more up-to-date information in assessing the coverage formula during the VRA’s last renewal in 2006. (Members of Congress claim they did.) The majority noted: “Congress could have updated the coverage formula at that time, but did not do so.” It added that Congress’s “failure to act” left the Court no choice but to toss out Section 4. “The formula in that section can no longer be used as a basis for subjecting jurisdictions to preclearance,” the Court said.

The Court had signaled its concerns about the formula in 2009 in Northwest Austin Municipal Utility District Number One v. Holder. In that case the justices upheld the VRA, but questioned congressional thinking for singling out states with a spotty formula. “The statute’s coverage formula is based on data that is now more than 35 years old, and there is considerable evidence that it fails to account for current political conditions,” the chief justice, writing for the majority, said in questioning the formula’s constitutionality.

In Shelby County, the Court left untouched Section 5 of the VRA, even though it works in tandem with Section 4. Section 5 requires formula-covered states and local governments to preclear voting law changes. The Court noted that it was dispensing a “no holding” on the section’s constitutionality, which some have interpreted as an omen for future challenges. The majority did not mention Section 3 either, even though that provision allows the government to file suit to have a new state or local entity put under Section 5’s preclearance regime. Section 3 is often referred to as the “bail-in mechanism.”

“I think there is a danger that the Court is on a mission to eliminate any provision in the law that addresses racial discrimination, except those keyed to intentional discrimination,” notes Paul Smith, a partner at Jenner & Block LLP. “A lot of these laws are not very obvious in their discrimination, and they tend to burden voting but not prevent it.”

In its decision, the Court did tout the bounty of Section 2, noting that it was “in no way” affected by the ruling. Section 2, the heart of the VRA to its Section 5’s hammer, forbids discrimination in voting and applies to every state and local government nationwide. It is the section that conservatives most frequently point to as a post-Shelby County remedy for civil rights activists concerned about discriminatory practices in voting.

Justice Ruth Bader Ginsburg issued a fiery defense of the VRA in her dissent, questioning the Court’s standing to second-guess Congress on what constitutes effective tools for ensuring equality in the electoral process. “For a half century, a concerted effort has been made to end racial discrimination in voting. Thanks to the Voting Rights Act, progress once the subject of a dream has been achieved and continues to be made,” Ginsburg wrote.

Ginsburg noted that over time, the VRA’s focus had evolved from “first-generation barriers to ballot access,” such as poll taxes and literacy tests, to “second-generation barriers” like racial gerrymandering and changes in voting times and locations of polling places. These new barriers are likely more difficult to police because they can be easily disguised as partisan politics, which is not unconstitutional, of course.

Ginsburg pointed out that the U.S. House of Representatives and Senate had held hearings, tallied up a voluminous legislative record, and studied the question for months if not years before adopting the legislation. She said the Court should have deferred to elected officials because they have a better understanding of the electoral process.
“[T]he court errs egregiously by overriding Congress’s decision,” concluded Ginsburg, who was joined by Justices Stephen G. Breyer, Elena Kagan, and Sonia Sotomayor.

States Take Swift Action
Within two days of the Shelby County decision, the Court issued orders vacating two federal court rulings that had denied preclearance to Texas’s tough new voter ID rules and the state’s latest map of congressional and state legislative districts based on the 2010 Census. In addition to Texas, four other states—Florida, Georgia, Mississippi, and North Carolina—signaled their intentions to revive legislation from the preclearance discard pile.

“I think the decision’s impact was felt almost immediately,” says Bruce V. Spiva of the Spiva Law Firm PLLC. “States were off and running with laws that the Department of Justice and the courts had considered discriminatory just days before.”

The two vacated decisions were a clear sign of what was to come. In State of Texas v. Holder, the U.S. District Court for the District of Columbia denied preclearance to Texas’s voter ID law, agreeing with Holder who had earlier rejected preclearance. The law mandated that voters show one of five forms of government-issued IDs or an election identification certificate (EIC) to vote. Opponents had argued that the requirement was onerous, noting that the EIC was difficult to obtain from the Texas Department of Public Safety because its offices are not accessible in every Texas county.

The second case, State of Texas v. United States, saw a three-judge district court panel deny preclearance to Texas’s redistricting plans. The lower court concluded that the plans were enacted with a discriminatory purpose.

In August, the DOJ took another shot at Texas and filed two separate challenges to block the laws. One complaint challenged the redistricting maps, arguing that the redrawn districts would intentionally discriminate against Latino and African American voters in Texas. A second complaint took on Texas’s photo ID mandate as discriminatory in both purpose and effect. The complaints asked courts in Texas to subject the state to a preclearance regime similar to the one required by Section 5 of the VRA.

That same month, North Carolina Gov. Pat McCrory signed a sweeping ballot access law, making his state the first to pass a restrictive new voting measure after the Court gutted the VRA. Chief among its many provisions is a tough new voter ID requirement.

“I believe if showing a voter ID is good enough and fair enough for our own president in Illinois, it’s good enough for the people in North Carolina,” said McCrory. “I think it is obviously influenced by national politics since the Justice Department ignores similar laws in other blue states.”

The argument did not stop the DOJ from filing suit and challenging portions of the state’s new voting requirements in United States v. State of North Carolina.

“I call upon state leaders across the country to pause before they enact measures similar to those at issue in this case,” Holder said in announcing the DOJ’s lawsuit against North Carolina in September. “I ask them to think about their solemn duty as lawmakers. And I urge them to consider that, whatever role each of us happens to play—for the times we are honored to serve in public office—we occupy positions of public trust, and must be faithful stewards of this democracy. We must be guided not by short-term partisan goals, but by the historic obligations that have been entrusted to us.”

The law’s provisions include reducing the number of early voting days, eliminating same-day registration during early voting periods, imposing a photo ID requirement for in-person voting, and prohibiting the counting of provisional ballots that are mistakenly cast in the wrong precinct but in the right county.

“The Justice Department expects to show that the clear and intended effects of these changes would contract the electorate and result in unequal access to participation in the p­­­olitical process on account of race,” said Holder. “By restricting access and ease of voter participation, this new law would shrink, rather than expand, access to the franchise. And it is especially troubling that the law would significantly narrow the early voting window that enabled hundreds of thousands of North Carolinians, including a disproportionally large numbers of minority voters, to cast ballots during the last election cycle.”

While Holder is unyielding in his support of the VRA, some have suggested that his aggressive approach is creating enemies in the states and could endanger efforts to win congressional support for legislation to repair the gaping hole left by the Court in its Shelby County decision.

“I think the Holder Justice Department maneuverings have created bad blood to make it very difficult for Congress to address this issue,” says Spies, who served as chief financial officer and counsel for Gov. Mitt Romney’s 2008 presidential campaign. “Had the Department of Justice not interjected itself, I think there might have been a bipartisan attempt to modernize the Voting Rights Act, but the Holder–Obama Justice Department has created a toxic atmosphere.”

In Search of Remedies
For Holder and the DOJ, the way forward is one marked by small steps with occasional great strides. It is a complicated, piecemeal approach, a far cry from the elegance of Section 5. The first good news for the DOJ came in September when a three-judge federal panel ruled that it could intervene in the Texas redistricting case, despite complaints from Texas that the challenge wasn’t timely or appropriate.

The DOJ is using Section 3 of the VRA to rebuild the preclearance regime and bring Texas back into preclearance status, hoping the court will find evidence of intentional discrimination and shift the state under the preclearance umbrella. These types of Section 3 bail-in provisions, designed to cover “pockets of discrimination,” have rarely been pursued because Section 5 was a more expeditious route, but post-Shelby County all bets are off for the DOJ and civil rights litigators, experts say.

A successful result in the courts under Section 3 would require Texas to seek preclearance and likely squash its redistricting and ballot-access provisions. “[P]art of what I think is very attractive about this as an alternative focus, rather than fixing the formula in Section 4, is it certainly addresses the constitutional problems because it makes coverage tied to findings of violations, recent violations, actual findings of violations,” Rick Pildes, a professor at New York University School of Law, told a Brookings Institution symposium in July on the Shelby County decision.

The advantage of the Section 3 approach is it does not single out a state or local government based on allegedly outdated discriminatory behavior. Instead it would address “current conditions” or contemporary constitutional violations. Section 3 has limitations that could slow enforcement, though. Bail-in litigation will take time because there is little precedent, and it will require the DOJ to forcefully move forward on many fronts at once.

Many believe that Holder is breaking new ground with these Section 3 challenges, which could prove to be a legitimate path forward. “The Department of Justice is justified in its approach to the Texas ID case, and will begin to write the next chapter on what will be necessary post-Shelby County to prevent impediments to voting,” notes Young, a national and international expert on election law issues.

Others believe the DOJ could use Section 2 to challenge questionable practices in the states. It is the one section in the VRA that was lauded by the justices because it broadly covers the nation, and its supporters say it is robust enough to handle former Section 5 cases.

“No one has been able to explain why Section 2 has been more than adequate for the non-covered jurisdictions, but now it is somewhat inadequate in the covered jurisdictions,” says Michael A. Carvin, a partner at Jones Day. “If Section 2 is good, it’s good enough. We need a uniform system. I don’t think we need to strengthen the existing laws that apply now. Section 2 has been universally hailed as a voting rights remedy.”

But civil rights attorneys say Section 2 is problematic. It is not an easy legal fix for Section 4 and Section 5. It shifts the burden of proof for showing intentional discrimination from states and local jurisdictions to plaintiffs, and complaints are usually only filed after a regulation has gone into effect.

“It totally shifts the burden and responsibility,” says Spiva. “I think there’s a huge difference between saying you can’t change your current procedures without first getting DOJ or the district court to preclear [them], and doing whatever you want and coming back after years of litigation and saying we made a mistake and [are] trying to undo the law.”

For some, that shifting burden is one of the true victories of Shelby County. “Section 5 was also unprecedented in the way it violated fundamental American principles of due process: it shifted the burden of proof of wrongdoing from the government to the covered jurisdiction,” said Hans A. von Spakovsky, senior legal fellow at The Heritage Foundation, in his testimony before the Senate Judiciary Committee’s Subcommittee on the Constitution, Civil Rights and Human Rights in July. “Unlike all other federal statutes that require the government to prove a violation of federal law, covered jurisdictions were put in the position of having to prove a negative—that a voting change was not intentionally discriminatory or did not have a discriminatory effect. While such a reversal of basic due process may have been constitutional given the extraordinary circumstances present in 1965, it cannot be justified today.”

The DOJ will have to pick and choose its battles as it makes its way forward, whether using Section 3 or Section 2. The Brennan Center for Justice, a nonpartisan public policy and law institute, reported that more than 80 bills have been introduced in state legislatures in 2013 to restrict, clarify, or redefine the right to vote in more than 30 states. The proposed laws would impose new voter ID requirements, reduce early voting opportunities, make it harder for students to vote, and add additional voter registration regulations.

In 2013 eight states—Arkansas, Indiana, Montana, Nebraska, North Carolina, North Dakota, Tennessee, and Virginia—adopted new laws that would constrain voting rights, according to the Brennan Center. Six of the states added new photo ID requirements. Two states approved modifications in the period for voting, and three states adopted changes or referendum that would affect voter registration rules.

“We keep going on this endless cycle of complaining about voting issues,” says Carvin. “This is just another replay of that same old song, and I’m not sure when it will stop.”

Various Paths for Congress
There is no doubt that a particularly partisan issue like voting rights would likely cloud an already contentious and crowded legislative landscape, which means congressional action is difficult to foresee on this subject. Still, there is a bipartisan effort to find a solution sooner rather than later, and it is led by members of Congress who have championed the issue for years if not decades, some of them as Freedom Riders.

“It is my belief that the Voting Rights Act is needed now more than ever before,” U.S. Rep. John Lewis (D–Ga.), a civil rights pioneer, told the Senate Judiciary Committee during its July hearing on Shelby County. “The burden cannot be on those citizens whose rights were, or will be, violated; it is the duty of Congress to restore the life and soul to the Voting Rights Act. And we must do it on our watch, at this time.”

The most obvious option for Congress is to rework the Section 4 formula, which is what Chief Justice Roberts suggested. Lawmakers would have a great amount of latitude in crafting a new formula and in filling the hole left by the Court’s decision. Of course, the route to an acceptable patch is the thorniest one politically because it would demand that some members of Congress call out their own local governments for discriminatory behavior. That’s generally a nonstarter in Congress.

“It’s going to be very difficult to get people to vote for a new statute,” says Smith, who chairs the appellate and Supreme Court practice at Jenner & Block. “They voted unanimously for renewal because they didn’t have a good way to avoid it. Now they’re all saying they don’t want to overrule the Supreme Court, but it’s a more complicated matter than that.”

Congress could also adopt a strategy to include in the Section 4 coverage formula every governmental jurisdiction in the United States instead of picking winners and losers. That would deal with the Court’s concerns about singling out government entities for unequal treatment, and Congress could simply order every state and local government to preclear election law changes with the DOJ. Of course, such a plan would put an extreme burden on states and DOJ officials who would have to comb through the tsunami of filings annually.

Heather Gerken, a Yale University Law School professor, has suggested that Congress could create an opt-in process that would allow the DOJ to investigate new ballot-access rules proposed by states or local governments after a complaint is filed. In this way, a civil rights group, a community activist, or an elected official could save the DOJ from having to review every new rule proposed every year at every level of government.

Gerken says a new entity similar to the U.S. Equal Employment Opportunity Commission, which reviews discrimination complaints in the workplace, could adjudicate proposed regulations and determine whether they need preclearance. To increase transparency, all state and local voting regulations could be submitted to a national database open to the public for review.

“It really does enable you to sort the wheat from the chaff, so you only target things that matter to people, that someone has recognized that matters,” Gerken said during the Brookings symposium in July.

Congress could also choose to employ the Elections Clause in Article I, Section 4, of the Constitution to bolster its control over ballot-access measures. The clause has the rare benefit of having been vetted by Justice Scalia, who wrote in Arizona v. Inter Tribal Council of Arizona that the clause “is paramount, and may be exercised at any time, and to any extent which [Congress] deems expedient.” The 7–2 decision struck down a law that would have required voters to provide proof of citizenship. The reasoning? A state cannot impose a rule that is more restrictive than the federal law governing ballot access. In this case, the federal law was the National Voter Registration Act, or the so-called “motor voter law.”

By using the Election Clause, Congress could exercise its right to set voter registration guidelines for all federal elections, prompting most state and local officials to follow its lead. It also could address the concerns of civil rights groups about efforts to toughen voter ID requirements.

“In the last 10 years, the major battles at the big national level, and I grant you that that’s been my primary focus, but the big battles have been over voter identification and the times and places that you can access the ballot. That is clearly within the Election Clause power that Congress has,” said Samuel Issacharoff, the Bonnie and Richard Reiss Professor of Constitutional Law at New York University School of Law, at the same Brookings forum. “That’s a place where Congress can act with tremendous latitude even beyond the rational relations test identified in Shelby County.”

Finally, one idea that has gained little traction is the proposal to approve a constitutional amendment guaranteeing the right to vote. While many embrace the spirit of the idea, everyone concedes it would be nearly impossible to usher an amendment through Congress and win state ratification as well.

Introduced in May by U.S. Reps. Mark Pocan (D–Wis.) and Keith Ellison (D–Minn.), the Right to Vote Amendment would secure for every American citizen an affirmative right to vote in the Constitution, as well as give Congress the power to enforce and implement the amendment. But despite seemingly widespread support for the idea of equality in voting, the bill likely will remain a casualty of the politics around the issue of voting rights.

Political Tricks or Veiled Discrimination?
With Shelby County, the Court seemed to wipe clean the slate of racial discrimination at the ballot box, permanently assigning Jim Crow tactics to the past. In doing so, the majority opinion recounted some promising gains for minorities since the VRA was enacted—the numbers of African American officeholders, high levels of minority voter registration, and the historic election of an African American president in 2008 and 2012—as proof of the success of minority voters at the polls. It is hard to argue with the successes, but then critics of the Court say the good news belies the problems underneath the surface, and the constant onslaught of voting restrictions.

For that reason, it’s possible the battle over ballot access will come down to whether these new rules coming out of the states qualify as enthusiastic partisan politics or a veiled attempt at racial discrimination to limit minority voting. It’s apparent that where people line up will depend on their politics, to no one’s great surprise.

“The biggest problem in the promotion of voting rights is that most people side with Justice Ginsburg that there are second-generation voting burdens that affect minorities,” says Young. “The question is: What is the most effective tool that will attack these burdens on the fundamental right to vote? Unfortunately, second-generation barriers can disguise themselves as political issues. The Court’s conservative majority has not seen through this rhetoric.”

But not everyone sides with Justice Ginsburg. They note that the political game has a long and storied history of using electoral sleight-of-hand to advantage one party or another.

That doesn’t necessarily constitute a discriminatory activity targeting racial minorities, they say. In some cases, it’s just the brass knuckles of politics and campaigns in the 21st century.

“Dirty tricks are an unfortunate part of campaigns and have been back to the time of our Founding Fathers,” says Spies. “I see no evidence of a racial basis in dirty tricks. Plenty of stupid or dishonest staffers have sent out e-mails or missives about inaccurate voting locations or election dates. It’s unfortunate but a reality of politics.”

What is clear is that the debate will go forward as the DOJ wrestles with the states over what constitutes discriminatory activities at the polls, as Congress ponders what it should or can do, as civil rights activists consider ways to rejuvenate the VRA for another 50 years, and as the Supreme Court keeps a watchful eye on everyone.

“The decision has raised questions that in some ways should have been asked for a while,” says FairVote’s Richie. “What can be a more universal approach to the protection of voting rights? Where is there a bright line between areas that deserve stricter scrutiny and those that don’t? We shouldn’t just simply give our elected officials a pass on this. We tend to say it’s just politics. There’s more at stake here than just politics, and the public should know it.”

Sarah Kellogg last wrote about surveillance and the use of drones in the July/August 2013 issue of Washington Lawyer.