At the end of this month, the Supreme Court will hold one hour of oral argument in the case known as Shelby County, Alabama vs. Holder which may render a landmark civil rights ruling. Specifically what is at stake here is the future of the Voting Rights Act of 1965, arguably one of the most important and successful laws against discrimination in voting ever enacted. Prior to its enactment (incidentally, with broad Republican support in Congress and strong Democratic opposition), the Justice Department was left with the cumbersome task of filing individual charges and trying them in court. This was not only a time-consuming task, but also costly. Thus, the Voting Rights Act was passed granting the federal government, through the Justice Department or a federal court in Washington DC, broad and sweeping powers to identify and root out discriminatory voting laws in covered jurisdictions.
Today, nine southern states are covered in full. This means that not only their state government, but every municipality and political subdivision within those states must receive federal approval before they change any election law. Additionally, municipalities or counties in seven other non-southern and some other southern states are covered. To fall under the law, it originally targeted the worst of the discriminatory offenders using a complicated statistical model designed to effectively target the South. Under the formula, other areas in non-southern states fell under the law’s purview. A 1972 extension of the law addressed ethnic as well as racial discrimination in voting. Thus, you find areas of California and Arizona now covered by the law (due to their Hispanic populations). Soon after its passage, the law was challenged and upheld by the Supreme Court in 1966. Also, challenges to the 1972 extension have survived Supreme Court scrutiny. The most recent extension occurred in 2006 and expires in 2032. It is this extension that finds itself before the Court today. No sooner had the law been passed that challenges began, mainly from southern states. In 2009, the Court ruled in a Voting Rights Act case and although they upheld the law, they fired a warning shot at Congress to basically update the law based on more recent electoral data. Congress failed to do so.
Two cases have reached the Supreme Court- this one and one out of Texas involving redistricting. Because of the 2012 election in Texas, the legislature was under a time limit to redistrict the state. The District Court in San Antonio threw out that plan as “discriminatory.” The state appealed to the Supreme Court and they sent the case back to the District Court with specific instructions- they had to take into account the wishes of the people through their elected representatives (the legislature) when looking at the law. This case was not as good a challenge to the VRA and was more case-specific. The District Court did, in fact, incorporate some of the legislature’s redistricting plan when they finally approved a plan since the Hispanic groups opposing the original plan dropped their challenge. The result was the 2012 election results. If originally approved, it is estimated that the GOP would have picked up three of the four new congressional seats. As it happened, they picked up two. But, the Texas challenge was not a facial challenge to the VRA. The resulting court-drawn redistricting plan was appealed to the Supreme Court by Texas, but is on hold pending the outcome of the Shelby County case.
The Shelby County case involves the annexation of property by the county which its detractors claim weakened the chances of minority candidates in school board elections. After reading the 2009 “warning” from the Supreme court, Shelby County went ahead with their plan without first seeking federal approval instead challenging Section 5 of the VRA in federal court (thus, the facial challenge). Their arguments were rejected by the District Court and then by the Appeals Court in Washington, DC. That brings us to this current challenge before the Supreme Court.
Shelby County presented three arguments when they submitted their case to the Supreme Court. Using a Tenth Amendment argument, they state that Section 5 of the VRA negates the basic premise of that amendment- protecting the sovereignty of states. Secondly,they had an Article IV argument which guarantees that a state have a republican form of government. This insures that there is not excessive federal interference in a state’s government. Shelby County argues that the Voting Rights Act as it exists today does exactly that. As proof, they offer up the example of Holder’s Justice Department specifically and their opposition to voting law changes in jurisdictions beyond Alabama. The DOJ’s opposition to voter ID laws in South Carolina and Texas are a perfect example. Under a previous administration, a voter ID law similar to that of South Carolina was not opposed in neighboring Georgia. In other words, the decision to target these voting law changes are at the whim of the current Attorney General. However, the Supreme Court then added a fourth dimension to this case. They asked whether its imposition violated the premise of equal protection under the 14th Amendment. Specifically, this may get to the heart of the case: are covered jurisdictions treated differently under the law simply because of the “sins of the past?” For example, Indiana was one of the first states to enact a voter ID law. That law was upheld by the Supreme Court on other grounds not involving the VRA because Indiana is not covered by the law. Yet, an identical law in a Southern state would require federal approval. To state that racial discrimination does not exist in Indiana is ridiculous. Discrimination knows no geographical boundaries. However, the Voting Rights Act says exactly the opposite- it assumes it is intrinsic only to the South and areas in seven other states.
Just taking the example of the voter ID laws, the arguments of Holder and company are ludicrous and predicated upon a false assumption that actual evidence refutes outright. Georgia has a voter ID law. Comparing that state to Mississippi which has a comparable minority population, black voter registration and turnout is actually higher in Georgia than it is in Mississippi. The psychological reason is simple: the people of Georgia are more assured of the integrity of the electoral process than are voters in Mississippi. Yet, if Mississippi (like South Carolina and Texas) wanted to pass a similar law like that of Georgia in every respect, they would need approval from Holder’s Justice Department or a federal court and likely be opposed by that same Justice Department. In other words, whether the Justice Department challenges an election law or not in any covered jurisdiction is arbitrary and based on a series of false assumptions. In states like Indiana and, more importantly Georgia, which have voter ID laws the scare tactic predictions of massive minority disenfranchisement has failed to materialize and, in fact, the opposite has happened.
Furthermore, the case out of Shelby County is based on a set of false assumptions by the Justice Department. They make the blanket assumption that because Shelby County, a southeastern suburban county of Birmingham with a population of over 200,000, is 83% white, that will necessarily exclude the possibility of a black or any minority being elected to office. Make no mistake- this case involves a single black school board member who was voted out of office as a result of the land annexation. The federal government assumes under the law that he lost that position because of his color ignorant of any factor like malfeasance in office or any other possibility. That is, because Alabama falls under the VRA, a racial animus is assumed in every electoral law change. Not only must the state or local government unit prove a lack of racial animus, but they must also demonstrate a practical non-discriminatory effect. Thus, if a black loses elected office, discrimination is automatically assumed. The result, unfortunately as the Court warned in 2009, is racially gerrymandered districts at all levels of government in order to overcome these false assumptions.
The bottom line is that covered jurisdictions are being evaluated on outdated criteria from 1972. Surely anyone who has followed politics knows that the South of 1972 or even 1964 is decidedly different from the South of 2012, or even 2006 when the law was most recently extended. In terms of the number of black elected officials to state or federal legislatures (including statewide elected offices), seven of the top 10 states are southern. In terms of city and countywide elected offices, southern states number eight of the top 10 states. As far as judges, sheriffs and the like, same thing- six of the top ten states in terms of blacks elected and seven of the top ten states as far as school board members and administrators. In fact, since the 1972, the states of the former Confederacy account for about 62% of all black elected officials at all levels government in the United States while also accounting for only 41% of the black population in the United States. Furthermore, several academic studies have demonstrated that if the statistical criteria were changed for triggering inclusion in one these covered jurisdictions, many areas outside the South would fall under the coverage of the VRA including such states as Illinois, Michigan, Wisconsin, and other northern states.
The problem is that the VRA has clearly been successful in its intentions so much so that it now penalizes a large swath of the country at the whim of the occupant of the White House, their Justice Department and their definition of racial discrimination in voting. Of course, the liberal civil rights groups out there like the ACLU, Southern Poverty Law Center, NAACP and Urban League all argue that if the Court strikes down Section 5 under any of the four rationales, then racial electoral Armageddon will befall the Nation. Section 2 of the Voting Rights Act still allows the Justice Department to challenge changes to state or local election laws without going through the onerous (to the states) pre-clearance procedures. In other words, the burden of proving racial animus or effect would rightfully be on the federal government on a case-by-case basis. There is no reason whatsoever to believe that if the Supreme Court rules in favor of Shelby County in this case that the days of Jim Crow will return. African-American political strength has grown and traditional views of blacks as elected leaders, despite isolated pockets of resistance that can be addressed through Section 2 litigation, has so changed that it makes no sense to punish today’s southerner for the beliefs and actions of those a generation or two ago. That is precisely what the 2006 extension of the law does and it is what the Supreme Court warned Congress in 2009.
There is no doubt in this writer’s mind that there are four solid votes to reconsider Section 5 as being unfair to covered jurisdictions: Scalia, Thomas, Alito and Roberts. Some may wonder about about Roberts given his decision in the Obamacare case (and to a lesser extent, the Arizona immigration law case). However, given his decisions in the Seattle and Kentucky school desegregation cases, in the Ricci case out of Connecticut and in the 2009 case along with his work in Reagan’s Justice Department, he will likely join Scalia and others. Likewise, there is no doubt that the liberal wing will vote to uphold the law as it is now. The wild card is Kennedy here who has been the tie breaker in many recent civil rights cases. Incidentally, civil rights cases account for a very small percentage of all Supreme Court cases, but are highly visible and emotionally charged. Kennedy has expressed concern over Section 5. He openly questioned whether the law makes the governments of Georgia or Alabama less sovereign than those of Michigan or Ohio for example. My educated guess is that he will seek the middle ground here and that middle ground is Section 2 of the Voting Rights Act.