Planet Debate 2014
February PF Topic – Voting Rights Act
1
Resolution........................................................................................................................................ 3
Essay ................................................................................................................................................ 4
Background.................................................................................................................................... 19
History of Minority Voting Rights ........................................................................................ 20
Sections 4 & 5 Explained ....................................................................................................... 22
The 15th Amendment............................................................................................................. 23
States Covered by the Act ..................................................................................................... 24
Full Text of the 14th Amendment .......................................................................................... 26
Full Text of the 15th Amendment .......................................................................................... 27
***Section 4(b) Enforces Section 5, 5 Meaningless without 4(b)*** ........................................... 28
Additional References ................................................................................................................... 33
Con............................................................................................................................................. 34
Presumption Favors the Act .................................................................................................. 35
Right to Vote Fundamental ................................................................................................... 36
Courts Should Have Deferred ................................................................................................ 38
Massive Discrimination Prior to VRA Section 5 ..................................................................... 41
VRA Section 5 Works ............................................................................................................. 42
Discrimination Will Increase Absent Section 5 ...................................................................... 45
Section 5 Needed to Fight Racism ......................................................................................... 54
A2: Case by Case/Section 2 Litigation Solves ........................................................................ 55
A2: Racism Has Decreased .................................................................................................... 59
A2: No Current Discrimination .............................................................................................. 62
Examples of Racist Voting Practices ...................................................................................... 69
A2: No Pervasive Discrimination ........................................................................................... 72
A2: The Past is the Past ......................................................................................................... 75
A2: No Evidence of Continued Discrimination in Shelby County .......................................... 81
A2: Need Evidence of Widespread* Electoral Gamesmanship ............................................ 82
A2: The Practices Do Not Prevent Minorities from Voting .................................................. 83
A2: Discrimination is Not Intentional .................................................................................... 85
A2: Civil Rights Act Solves .................................................................................................. 87
Racial Polarization in Elections............................................................................................. 88
A2: Preclearance Rejection Rate has Declined ..................................................................... 91
A2: Section 2 Cases Don’t Prove Racism, They Aren’t About Intent .................................. 92
A2: Presence of Observers Only Proves Discrimination is Possible ..................................... 93
A2: DOJ Can Pay for Section 2 Claims ................................................................................ 94
A2: Section 4(b) Only Deals with First Generation Problems .............................................. 95
A2: Congress Didn’t Make a ‘Finding’ of Racism When Extending the VRA .................... 96
A2: VRA Doesn’t Cover Every Discriminatory Jurisdiction ................................................ 97
A2: Racial Redistricting Violates the 14A ............................................................................ 98
A2: Your Evidence is About Alabama, Not About Shelby County ...................................... 99
A2: Section 2 Examples are Not Unconstitutional Examples ............................................. 100
A2: Formula is Old/Shouldn’t Be Static ............................................................................... 101
A2: Bail Out Impossible (It’s Static) ................................................................................... 104
A2: Federalism/States Rights............................................................................................... 106
A2: No Justification for Grouping States ............................................................................. 109
A2: States Must Be Treated Equally ................................................................................... 111
A2: Dignity of the States ...................................................................................................... 114
Planet Debate 2014
February PF Topic – Voting Rights Act
2
A2: Section 5 Means Racial Essentialism and Racial Entitlements .................................... 115
A2: Need to Prevent Voter Fraud ........................................................................................ 117
A2: Upholding the Law Would Have Been Activist .............................................................. 118
Pro ........................................................................................................................................... 120
Intentional & Extreme Racism Should be the Standard ...................................................... 121
Section 5 an Intrusion on the States ................................................................................... 122
States Not Being Treated Equally ........................................................................................ 125
A2: Political Process Protects Federalism............................................................................ 127
Federal Power Undermines State Power ............................................................................ 130
Strong State Authority Protects Federalism ........................................................................ 131
Section 5 Won’t Solve.......................................................................................................... 133
A2: Jurisdictions Will Revert Back to Discrimination Without the VRA............................... 136
Voter ID Laws Aren’t Racist ................................................................................................. 137
Discrimination Not as Widespread ...................................................................................... 138
A2: Racism Still Widespread ................................................................................................ 143
A2: Some Discrimination Still Exists.................................................................................. 144
A2: Must Uphold the 15th Amendment ............................................................................... 145
A2: There is Voter Discrimination in Shelby County ......................................................... 146
Section 2 Solves ................................................................................................................... 147
VRA Increases Racism .......................................................................................................... 148
A2: It Deters Behavior ......................................................................................................... 151
Coverage formula Old/Static ............................................................................................... 152
A2: The Decision Was Activist ........................................................................................... 154
Planet Debate 2014
February PF Topic – Voting Rights Act
Resolution
The Supreme Court rightly decided that Section 4 of the Voting Rights Act violated the
Constitution.
3
Planet Debate 2014
February PF Topic – Voting Rights Act
4
Essay
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 twelve 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 strikedown 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.
Planet Debate 2014
February PF Topic – Voting Rights Act
5
The Voting Rights Act of 1965
To word 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/votingrights-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.Ӧ 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
Planet Debate 2014
February PF Topic – Voting Rights Act
6
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://www2.bloomberglaw.com/public/desktop/document/Shelby_Cnty_v_Holder_No_1296_2013
_BL_167707_US_June_25_2013_Court
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,
Planet Debate 2014
February PF Topic – Voting Rights Act
7
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://www2.bloomberglaw.com/public/desktop/document/Shelby_Cnty_v_Holder_No_1296_2013_BL_167707_US_J
une_25_2013_Court)
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
Planet Debate 2014
February PF Topic – Voting Rights Act
8
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."
Planet Debate 2014
February PF Topic – Voting Rights Act
9
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 14 th 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,
Planet Debate 2014
February PF Topic – Voting Rights Act
10
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
Planet Debate 2014
February PF Topic – Voting Rights Act
11
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 AfricanAmerican 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.
Planet Debate 2014
February PF Topic – Voting Rights Act
12
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://www2.bloomberglaw.com/public/desktop/document/Shelby_Cnty_v_Holder_No_1296_2013_BL_1
67707_US_June_25_2013_Court)
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
Planet Debate 2014
February PF Topic – Voting Rights Act
13
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://www2.bloomberglaw.com/public/desktop/document/Shelby_Cnty_v_Holder_No_1296_2013_BL_1
67707_US_June_25_2013_Court)
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
Planet Debate 2014
February PF Topic – Voting Rights Act
14
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
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.
becoming once again someday. It is
Planet Debate 2014
February PF Topic – Voting Rights Act
15
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://www2.bloomberglaw.com/public/desktop/document/Shelby_Cnty_v_Holder_No_1296_2013_BL_1
67707_US_June_25_2013_Court)
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.
Planet Debate 2014
February PF Topic – Voting Rights Act
16
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
Planet Debate 2014
February PF Topic – Voting Rights Act
17
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.
Planet Debate 2014
February PF Topic – Voting Rights Act
18
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.
Planet Debate 2014
February PF Topic – Voting Rights Act
Background
19
Planet Debate 2014
February PF Topic – Voting Rights Act
20
History of Minority Voting Rights
I.
A History of Minority Voting Rights
Joe Mitchell, JD, 2013, Washington University Journal of Law & Policy, Note: Breaking Out of the
Mold: Minority-Majority Districts and the Sustenance of White Privilege, p. 236-8
Minority interests have always been excluded or marginalized in the American political system. n8 Voting rights were
initially reserved to white land-owners. As suffrage spread, exceptional steps were taken to prevent minority citizens
from exercising meaningful political power. After a brief period during Reconstruction when Black n11 votes and
representatives were integral to Southern legislatures, the Jim Crow era undid much of Reconstruction's racial
progress.
Congress passed no civil rights litigation between Reconstruction and 1957, n14 when an ineffectual bill was
passed. A second hollow bill was passed in 1960. These bills were focused on providing the right to vote, but the Senate
made sure that the bills, as passed, were toothless.
In 1960, the U.S. Supreme Court decided Gomillion v. Lightfoot, a landmark voting rights case. That decision
heralded the opening of a decade that saw several positive changes in the law regarding minority political participation.
n19 In Gomillion, the city of Tuskegee redrew its boundaries, originally square, to form a 28-sided figure to exclude
Blacks from city politics. The Court ruled that Tuskegee's new lines were unconstitutional under the Fifteenth
Amendment.
Two years later, Baker v. Carr moved districting claims, which under Gomillion were litigated under the Fifteenth
Amendment, to the Equal Protection Clause of the Fourteenth Amendment. Six justices found that the state districting at
issue was justiciable under the Equal Protection Clause, but the justices split three-three on how to apply the clause. The
analysis was left unclear until Reynolds v. Sims, decided in 1964. In Reynolds, the Court held that state electoral
districts that varied in population by up to a factor of forty-one were unconstitutional. The Court stated that "the right of
suffrage can be denied by a debasement or dilution of the weight of a citizen's vote just as effectively as by wholly
prohibiting the free exercise of the franchise." The opinion in Reynolds rang in a new era in which efforts were made to
include minority voices in the political process.
In 1965, Congress passed the Voting Rights Act. This act, unlike its predecessors of 1957 and 1960, provided
substantial support to minority voters' political rights. Section 2 of the Voting Rights Act barred practices that infringed
on minority vote participation, and Section 4 required certain states to cease using literacy tests. Section 5 required
certain states to pre-clear changes in voting procedures by obtaining a pre-clearance from the Department of Justice or
an approving declaratory judgment from the D.C. Circuit Court. The Voting Rights Act had a dramatic impact, and
minority political participation rose dramatically following the Act's ratification. The judicial system, at times,
vigorously implemented the Act. In 1969 in Allen v. State Bd. of Elections, the Court held that four different methods
of undermining minority political participation were each independently illegal, finding that the Act was "aimed at the
subtle, as well as the obvious, state regulations which have the effect of denying citizens their right to vote because of
their race." In White v. Regester, the Court barred the use of multi-member electoral districts, finding the method to
"enhance[] the opportunity for racial discrimination." The Act and its early jurisprudence combined to be a successful
first step towards incorporating long-repressed minority groups into the political life of the United States.
As the momentum generated by the Civil Rights movement cooled, the Court's vigorous defense of the Act's
provisions also lost ground. In 1980, the Court considered Mobile v. Bolden and concluded that in order to disqualify a
voting plan, plaintiffs must show both a racially disparate impact and racially discriminatory intent. This development
weakened the Voting Rights Act greatly, because states could craft policies that had discriminatory effects, and ensure
their approval by stating that traditional goals of districting motivated the plan.
In response, Congress updated the Voting Rights Act in 1982. The original Act of 1965 barred voting practices
intended "to deny or abridge the right of any citizen of the United States to vote on account of race or color." The
amended act stated that any plan 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 [violated the act]." This change overruled Mobile and enabled courts to find a
violation wherever a plan had a discriminatory effect, regardless of intent. The Act requires courts to include in their
analysis consideration of "whether minorities are able to elect candidates of their choice," though the Act does not
Planet Debate 2014
February PF Topic – Voting Rights Act
21
mandate proportional representation.
In 1986, the Supreme Court examined the 1982 amendment in Thornburg v. Gingles. The amended legislation
caused the Court to significantly alter its evidentiary inquiry, as it attempted to apply a standard of "functional"
inequality. The result was a three-pronged test: to state a claim under the Act, a plaintiff needed to show that (1) a
minority is present in sufficient compactness to enable the minority group to dominate a single district; (2) the minority
group is substantially "politically cohesive"; and (3) the minority group has been subjected to electoral defeat by
majority candidates. If the plaintiff can meet those three tests, a majority non-white district n48 is created to allow the
affected minority community to elect a candidate of its choosing.
Planet Debate 2014
February PF Topic – Voting Rights Act
22
Sections 4 & 5 Explained
Sections 4 & 5 of the VRA well explained
Justin Levitt is a Visiting Associate Professor of Law at Yale Law School and an Associate Professor at Loyola
Law School in Los Angeles, The Yale Law Journal Online, June 7, 2013, The Yale Law Journal Online, Section 5 as
Simulacrum, http://yalelawjournal.org/2013/06/07/levitt.html.
The privileging of imprecision begins with the very reference to "section 5," which is more metonymy than description.
The challenged federal requirement is not truly a single statutory section, but a sophisticated regulatory regime spanning
three different sections of the law. Section 5 provides the "what": federal authorities (the Department of Justice or a
Washington, DC, federal court) must "preclear" any change to election-related procedures in a covered
jurisdiction, ensuring that the new procedures neither decrease the existing pragmatic political power of racial
or ethnic minorities, nor are intended to discriminate against those minorities. Section 4 provides a part of
"where" (and perhaps "when"): a formula for determining which jurisdictions were initially covered, a provision for
individual jurisdictions to "bail out" from coverage when coverage is no longer warranted, a provision for
Congress to reconsider after fifteen years whether the entire coverage regime is no longer necessary, and a sunset
provision to terminate coverage after twenty-five years. Section 3 provides another part of "where": a "bail-in"
provision, allowing courts to impose a slightly modified preclearance process upon a finding of intentional
discrimination.
Planet Debate 2014
February PF Topic – Voting Rights Act
23
The 15th Amendment
15th Amendment Background
Kevin Clarkson, The Alaska Bar Rag, July - September, 2013, 37 AK Bar Rag 1
COURT'S DECISION ON VOTING RIGHTS ACT LONG OVERDUE
The Fifteenth Amendment, ratified in 1870 in the wake of the Civil War, provides that "[t]he right of citizens of the
United States 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 Amendment gives Congress the "power to enforce this article by appropriate
legislation." But, as The Chief Justice explains in Shelby County, the first century of congressional enforcement of the
Amendment can only be regarded as a failure. Toward the end of the 19th Century, several states began enacting
literacy tests and other methods designed to prevent African Americans from voting. These states were primarily in the
south and included Alabama, Georgia, Louisiana, Mississippi, North Carolina, South Carolina, and Virginia. In
response, "Congress passed statutes outlawing some of these practices and facilitating litigation against them. . . ."
"[B]ut litigation remained slow and expensive, and the States came up with new ways to discriminate as soon as
existing ones were struck down." Absent an effective solution, these discriminatory state practices continued for
decades to come.
Planet Debate 2014
February PF Topic – Voting Rights Act
24
States Covered by the Act
States that were originally covered by the Act
Kevin Clarkson, The Alaska Bar Rag, July - September, 2013, 37 AK Bar Rag 1
COURT'S DECISION ON VOTING RIGHTS ACT LONG OVERDUE
In 1965 the jurisdictions covered by Section 5 were those States or political subdivisions that had maintained a test or
device as a prerequisite to voting as of November 1, 1964, and had less than 50 percent voter registration or turnout in
the 1964 Presidential Election. Such tests or devices included literacy and knowledge tests, good moral character
requirements, and the need for vouchers from registered voters. The covered jurisdictions in 1965 included the States of
Alabama, Georgia, Louisiana, Mississippi, South Carolina, and Virginia, as well as 39 counties in North Carolina and
one in Arizona. Alaska escaped coverage under the VRA at that time and eventually removed the English language
literacy test from its Constitution in 1970. This is because in 1972 Congress amended the VRA to include jurisdictions
that had a voting test and less than 50 percent of voter registration or turnout by 1972. At this time, it also defined a
“test or device” to include the practice of providing English-only voting materials in places where more than 5 percent
of voting-age citizens spoke a single language other than English. When Congress extended the Act in 2006, it
extended Section 5 to prohibit even more conduct. “Section 5 currently forbids voting changes with "any
disccriminatory purpose" as well as voting changes that diminish the ability of citizens, on account of race, color, or
language minority status, "to elect their preferred candidates of choice."
1975 re-authorization expanded the test and the number of states covered
Chief Justice Roberts et al, 2013 (+ justices Scalia, Kennedy, Thomas, and Alito, Shelby County v. Holder, June 25,
http://www2.bloomberglaw.com/public/desktop/document/Shelby_Cnty_v_Holder_No_1296_2013_BL_167707_US_J
une_25_2013_Court)
In 1975, Congress reauthorized the Act for seven more years, and extended its coverage to
jurisdictions that had a voting test and less than 50 percent voter registration or turnout as of
1972. Voting Rights Act Amendments of 1975. Congress also amended the definition of "test or
device" to include the practice of providing English-only voting materials in places where over
five percent of voting-age citizens spoke a single language other than English. As a result of these
amendments, the States of Alaska, Arizona, and Texas, as well as several counties in California,
Florida, Michigan, New York, North Carolina, and South Dakota, became covered jurisdictions.
Congress correspondingly amended sections 2 and 5 to forbid voting discrimination on the basis
of membership in a language minority group, in addition to discrimination on the basis of race or
color. Finally, Congress made the nationwide ban on tests and devices permanent. The 2006
authorization did not alter the coverage formula but did amend section 5 to forbid voting changes
with “any discriminatory purpose” as well as voting changes that diminish the ability of citizens,
on account of race, color, or language minority status, "to elect their preferred candidates of
choice."
States currently covered by formula until it was struck-down
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, p. 236
Currently, the VRA coverage formula qualifies nine states for inclusion on a state-wide basis: Alabama, Alaska,
Arizona, Georgia, Louisiana, Mississippi, South Carolina, Texas, and Virginia. Additionally, individual counties in
California, Florida, New York, North Carolina, and South Dakota qualify for inclusion. Michigan and New Hampshire
Planet Debate 2014
February PF Topic – Voting Rights Act
have several districts below the county level that are also covered.
25
Planet Debate 2014
February PF Topic – Voting Rights Act
26
Full Text of the 14th Amendment
Wikipedia, http://en.wikipedia.org/wiki/Fourteenth_Amendment_to_the_United_States_Constitution#Text
Section 1. 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.
Section 2. Representatives shall be apportioned among the several States according to their respective
numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the
right to vote at any election for the choice of electors for President and Vice President of the United States,
Representatives in Congress, the Executive and Judicial officers of a State, or the members of the
Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age,
and citizens of the United States, or in any way abridged, except for participation in rebellion, or other
crime, the basis of representation therein shall be reduced in the proportion which the number of such male
citizens shall bear to the whole number of male citizens twenty-one years of age in such State.
Section 3. No person shall be a Senator or Representative in Congress, or elector of President and Vice
President, or hold any office, civil or military, under the United States, or under any State, who, having
previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of
any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the
United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to
the enemies thereof. But Congress may, by a vote of two-thirds of each House, remove such disability.
Section 4. The validity of the public debt of the United States, authorized by law, including debts incurred
for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be
questioned. But neither the United States nor any State shall assume or pay any debt or obligation incurred
in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any
slave; but all such debts, obligations and claims shall be held illegal and void.
Section 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this
article.[1]
Planet Debate 2014
February PF Topic – Voting Rights Act
27
Full Text of the 15th Amendment
Wikipedia,
http://en.wikipedia.org/wiki/Fifteenth_Amendment_to_the_United_States_Constitution#Text
Section 1. The right of citizens of the United States 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.
Section 2. The Congress shall have power to enforce this article by appropriate
legislation.[1]
Planet Debate 2014
February PF Topic – Voting Rights Act
28
***Section 4(b) Enforces Section 5, 5
Meaningless without 4(b)***
No way to enforce Section 5 without Section 4
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.Ӧ 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
Planet Debate 2014
February PF Topic – Voting Rights Act
29
that determines which states are covered by Section 5 is unconstitutional, effectively
eliminating Section 5 enforcement, at least for the time being.
Section 5 cannot currently be enforced because there is no way to determine
what is under its jurisdiction now that section 4 has been struck down
Heritage Foundation, August 15, 2013,
http://www.heritage.org/research/factsheets/2013/08/voting-rights-act-101-shelby-county-vholder-and-section-5
What is Section 5 of the Voting Rights Act?
Section 5 was the temporary, emergency provision passed in 1965 that was supposed to expire
after five years. In 2006, Congress renewed it for the fourth time—for another 25 years.
It required certain jurisdictions to get preapproval from the federal government before
making any changes in their voting laws, essentially putting those states into the equivalent of
federal receivership.
Covered jurisdictions had the burden of proving their voting change “neither has the purpose
nor will have the effect of denying or abridging the right to vote on account of race or color” or
inclusion in a language minority, reversing the usual burden of proof standard (language
minority means American Indians, Alaskan natives, and those who speak Spanish or Asian
languages).
Problems with Section 5’s Coverage Formula
Coverage was based on registration or turnout below 50% in the 1964, 1968, or 1972
elections. Congress did not update this coverage formula contained in Section 4 of the VRA
when it reauthorized Section 5.
If Congress had updated the coverage formula to use recent registration and turnout data, none
of the states would have remained covered because the registration and turnout of black voters
is on par with white voters and exceeds that of white voters in some of the covered states.
Shelby County v. Holder
The Court found Section 4’s coverage formula unconstitutional because Congress “did not use
the record it compiled to shape a coverage formula grounded in current conditions.” Instead,
Congress reenacted Section 4 “based on 40-year-old facts having no logical relation to the
present day.”
The Court left Section 5 in place, leaving open the possibility that it could be reimposed if
Congress came up with a new coverage formula based on current conditions.
Planet Debate 2014
February PF Topic – Voting Rights Act
30
Section 4(b) enforces the Section 5 preclearance requirement by defining the
jurisdictions that are subject to Section 5 preclearance. Without Section 4(b),
Section 5 is meaningless.
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/
Earlier today, the Supreme Court ruled that Section 4(b) of the Voting Rights Act is unconstitutional.
Writing for the Court, Chief Justice John Roberts explained that “things have changed dramatically” for the
better in the places subject to the VRA’s regional provisions, that “these improvements are in large part
because of the Voting Rights Act,” and all this means the once-justified strict supervision of mostly
southern jurisdictions’ election rules is no longer warranted. In other words: “Mission accomplished.
Shelby County v. Holder is a consequential holding. The decision terminates the most successful and
salient piece of civil rights legislation in American history. This is the law that ended the rampant racebased disenfranchisement that defined the Jim Crow South, and it is the law that has repeatedly enabled
minority voters to cast ballots and elect representatives of choice in places where they otherwise would not
have been able to do so.
The regime Shelby County shuts down has recently blocked a host of fresh discriminatory electoral
practices. Just last summer, it kept Texas from implementing discriminatory redistricting plans and a
deeply problematic voter ID measure. Last fall, the regime helped reshape South Carolina’s voter ID
requirement to lessen the burdens it posed to minority voters. That case prompted a U.S. District Judge,
John Bates, to observe the statute’s “continuing utility in deterring problematic” voting changes.
Today’s ruling scraps this regime by discarding the formula that subjected specific jurisdictions to the
VRA’s regional requirements. Until today, public officials in places that had very low voter
participation on specified dates needed to demonstrate to federal officials that proposed electoral
changes were nondiscriminatory before implementing those changes. Shelby County eliminates the
coverage formula, which means no jurisdiction today is required to seek “preclearance.” In other
words, it guts what made the regime effective.
The Court’s willingness to dispose of the coverage formula – and, for all practical purposes – the
preclearance requirement makes Shelby County a sweeping and deeply troubling decision. And yet,
there is reason to think that Shelby County will be even more far-reaching than that.
Two significant aspects of the decision explain why. The first is the Court’s refusal to defer in any
significant way to Congress’s judgment that the preclearance regime remains necessary, and the second is
the Court’s own reason for disagreeing with that judgment.
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
Planet Debate 2014
February PF Topic – Voting Rights Act
31
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.
Shelby County’s greatest import may lie in this supposition – namely, the majority’s belief that the validity
of the coverage formula requires that those subject to preclearance currently engage in the sort of defiant
obstructionism that made the VRA necessary in the first instance.
But specific acts traceable to public officials openly bent on denying norms of equality capture but a
portion of the ways racial discrimination operates today. Put differently, the conditions that made
preclearance necessary in the first instance have shaped the modern landscape in ways that create distinct
Planet Debate 2014
February PF Topic – Voting Rights Act
32
opportunities for more subtle forms of discrimination, including intentional discrimination, to thrive. Many
or even most public officials may act without ill will, but still intentional discrimination from some and the
implicit biases of many may generate substantial obstacles for minority voters in the political process.
Today’s decision makes clear that such obstacles are insufficient to justify the coverage formula and an
operational preclearance regime.
Planet Debate 2014
February PF Topic – Voting Rights Act
33
Additional References
Supreme Court Decision
http://www2.bloomberglaw.com/public/desktop/document/Shelby_Cnty_v_Holder_No_1296_2013_BL_167707_US_J
une_25_2013_Court
District court decision (upholding the VRA)
http://www.cadc.uscourts.gov/internet/opinions.nsf/D79C82694E572B4D85257A02004EC903/$file/11-52561374370.pdf
Supreme Court Briefs & Commentary
http://www.scotusblog.com/case-files/cases/shelby-county-v-holder/
Planet Debate 2014
February PF Topic – Voting Rights Act
34
Con
Planet Debate 2014
February PF Topic – Voting Rights Act
35
Presumption Favors the Act
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://www2.bloomberglaw.com/public/desktop/document/Shelby_Cnty_v_Holder_No_1296_2013_BL_1
67707_US_June_25_2013_Court)
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
Right to vote is a fundamental right
Supreme Court Justice Ginsburg, 2013, (+ justices Breyer, Sotomayor, and Kagan, Shelby County v.
Holder, June 25,
http://www2.bloomberglaw.com/public/desktop/document/Shelby_Cnty_v_Holder_No_1296_2013_BL_1
67707_US_June_25_2013_Court)
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."
Planet Debate 2014
February PF Topic – Voting Rights Act
36
Right to Vote Fundamental
Right to vote is a fundamental political right
David Tatel, Senior Circuit Judge, May 2012, US Court of Appeals,
http://www.cadc.uscourts.gov/internet/opinions.nsf/D79C82694E572B4D85257A02004EC903/$file/11-52561374370.pdf
We read this case law with two important qualifications. First, we deal here with racial
discrimination in voting, one of the gravest evils that Congress can seek to redress. See Yick Wo
v. Hopkins, 118 U.S. 356, 370 (1886) (“[The right to vote] is regarded as a fundamental political
right, because preservative of all rights.”); Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 216
(1995) (“racial classifications [are] constitutionally suspect and subject to the most rigid scrutiny”
(citation omitted) (internal quotation marks omitted)). When Congress seeks to combat racial
discrimination in voting— protecting both the right to be free from discrimination based on race
and the right to be free from discrimination in voting, two rights subject to heightened scrutiny—
it acts at the apex of its power. See Hibbs, 538 U.S. at 736 (noting that it is “easier for Congress
to show a pattern of unconstitutional violations” when it enforces rights subject to heightened
scrutiny); Lane, 541 U.S. at 561–63 (Scalia, J., dissenting) (“Giving [Congress’s enforcement
powers] more expansive¶ cope with regard to measures directed against racial discrimination by
the States accords to practices that are distinctively violative of the principal purpose of the
[Reconstruction Amendments] a priority of attention that [the Supreme] Court envisioned from
the beginning, and that has repeatedly been reflected in [the Court’s] opinions.”). Expressly
prohibited by the Fifteenth Amendment, racial discrimination in voting is uniquely harmful in
several ways: it cannot be remedied by money damages and, as Congress found, lawsuits to
enjoin discriminatory voting laws are costly, take years to resolve, and leave those elected under
the challenged law with the benefit of incumbency.
Right to vote necessary to preserve other rights
Marcia Henry, Senior Attorney-Legal Editor, Clearinghouse Review: Journal of Poverty Law and Policy,
September - October 2013
The right to vote is without question an issue of racial justice. Justice Ginsburg noted that "[t]he [Voting Rights Act]
addresses the combination of race discrimination and the right to vote, which is 'preservative of all rights.'" Indeed, the
assertion that African Americans had the right to vote was the very foundation of the civil rights movement and
explained much of the rabid violence against civil rights workers. Advocates of segregation and the status quo of the
time understood full well the threat that a truly universal franchise posed to the existing system.
Right to vote an American entitlement
Elizabeth Wydra, Post-argument commentary: Voting rights are an American
entitlement, SCOTUSblog (Feb. 27, 2013, 4:18 PM),
http://www.scotusblog.com/2013/02/post-argument-commentary-voting-rightsare-an-american-entitlement/
Fortunately, Justice Sonia Sotomayor took on Scalia’s rather astonishing claim,
pointing out that the right to vote is not a “racial entitlement.” I agree. It’s an
American entitlement. The ideal of equality in our democracy has been our
Planet Debate 2014
February PF Topic – Voting Rights Act
37
touchstone from the Declaration of Independence, to the Fourteenth, Fifteenth,
Nineteenth, and Twenty-Fourth Amendments, and through the enactment and
reauthorization of the Voting Rights Act, which made equality in voting a reality for
many previously disenfranchised Americans. As Justice Ruth Bader Ginsburg noted
in the beginning of this morning’s argument, enormous progress has been made in
the South and throughout our country. But Congress was right to recognize by
reauthorizing the VRA that we still have much further to go in our march of
progress. I hope the Court will ultimately uphold this iconic and still vital statute.
Planet Debate 2014
February PF Topic – Voting Rights Act
38
Courts Should Have Deferred
Congress had a rational basis for the preclearance provision and the Court
should defer to Congress
Supreme Court Justice Ginsburg, 2013, (+ justices Breyer, Sotomayor, and Kagan, Shelby County v.
Holder, June 25,
http://www2.bloomberglaw.com/public/desktop/document/Shelby_Cnty_v_Holder_No_1296_2013_BL_1
67707_US_June_25_2013_Court)
It cannot tenably be maintained that the VRA, an Act of Congress adopted to shield the right to
vote from racial discrimination, is inconsistent with the letter or spirit of the Fifteenth
Amendment, or any provision of the Constitution read in light of the Civil War Amendments.
Nowhere in today's opinion, or in Northwest Austin, is there clear recognition of the
transformative effect the Fifteenth Amendment aimed to achieve. Notably, "the Founders' first
successful amendment told Congress that it could `make no law' over a certain domain"; in
contrast, the Civil War Amendments used "language [that] authorized transformative new federal
statutes to uproot all vestiges of unfreedom and inequality" and provided "sweeping enforcement
powers . . . to enact `appropriate' legislation targeting state abuses." The stated purpose of the
Civil War Amendments was to arm Congress with the power and authority to protect all persons
within the Nation from violations of their rights by the States. In exercising that power, then,
Congress may use "all means which are appropriate, which are plainly adapted" to the
constitutional ends declared by these Amendments. So when Congress acts to enforce the right to
vote free from racial discrimination, we ask not whether Congress has chosen the means most
wise, but whether Congress has rationally selected means appropriate to a legitimate end. "It is
not for us to review the congressional resolution of [the need for its chosen remedy]. It is enough
that we be able to perceive a basis upon which the Congress might resolve the conflict as it did."
Until today, in considering the constitutionality of the VRA, the Court has accorded Congress the
full measure of respect its judgments in this domain should garner. South Carolina v. Katzenbach
supplies the standard of review: "As against the reserved powers of the States, Congress may use
any rational means to effectuate the constitutional prohibition of racial discrimination in voting."
Faced with subsequent reauthorizations of the VRA, the Court has reaffirmed this standard.
Today's Court does not purport to alter settled precedent establishing that the dispositive question
is whether Congress has employed "rational means." For three reasons, legislation reauthorizing
an existing statute is especially likely to satisfy the minimal requirements of the rational-basis
test. First, when reauthorization is at issue, Congress has already assembled a legislative record
justifying the initial legislation. Congress is entitled to consider that preexisting record as well as
the record before it at the time of the vote on reauthorization. This is especially true where, as
here, the Court has repeatedly affirmed the statute's constitutionality and Congress has adhered to
the very model the Court has upheld. See id., at 174 ("The appellants are asking us to do nothing
less than overrule our decision in South Carolina v. Katzenbach . . ., in which we upheld the
constitutionality of the Act."); Lopez v. Monterey County, 525 U. S. 266, 283 (1999) (similar).
Second, the very fact that reauthorization is necessary arises because Congress has built a
temporal limitation into the Act. It has pledged to review, after a span of years (first 15, then 25)
and in light of contemporary evidence, the continued need for the VRA. Cf. Grutter v. Bollinger,
539 U. S. 306, 343 (2003) (anticipating, but not guaranteeing, that, in 25 years, "the use of racial
preferences [in higher education] will no longer be necessary"). Third, a reviewing court should
expect the record supporting reauthorization to be less stark than the record originally made.
Demand for a record of violations equivalent to the one earlier made would expose Congress to a
Planet Debate 2014
February PF Topic – Voting Rights Act
39
catch-22. If the statute was working, there would be less evidence of discrimination, so opponents
might argue that Congress should not be allowed to renew the statute. In contrast, if the statute
was not working, there would be plenty of evidence of discrimination, but scant reason to renew a
failed regulatory regime. This is not to suggest that congressional power in this area is limitless.
It is this Court's responsibility to ensure that Congress has used appropriate means. The question
meet for judicial review is whether the chosen means are "adapted to carry out the objects the
amendments have in view." The Court's role, then, is not to substitute its judgment for that of
Congress, but to determine whether the legislative record sufficed to show that "Congress could
rationally have determined that [its chosen] provisions were appropriate methods." In summary,
the Constitution vests broad power in Congress to protect the right to vote, and in particular to
combat racial discrimination in voting. This Court has repeatedly reaffirmed Congress'
prerogative to use any rational means in exercise of its power in this area. And both precedent and
logic dictate that the rational-means test should be easier to satisfy, and the burden on the statute's
challenger should be higher, when what is at issue is the reauthorization of a remedy that the
Court has previously affirmed, and that Congress found, from contemporary evidence, to be
working to advance the legislature's legitimate objective.
Court has always deferred to Congress on 14A questions
David Tatel, Senior Circuit Judge, May 2012, US Court of Appeals,
http://www.cadc.uscourts.gov/internet/opinions.nsf/D79C82694E572B4D85257A02004EC903/$file/11-52561374370.pdf
We can likewise seek guidance from the Court’s Fourteenth Amendment decisions applying the
congruent and proportional standard to other legislation. In those cases, the Court made clear that
the record compiled by Congress must contain evidence of state “conduct transgressing the
Fourteenth Amendment’s substantive provisions,” and that invasions of state interests based on
“abstract generalities,” or “supposition and conjecture,” cannot be sustained. Once satisfied that
Congress has¶ identified a pattern of constitutional violations, however, the Court has deferred to
Congress’s judgment, even in the face of a rather sparse legislative record. In Nevada Department
of Human Resources v. Hibbs, for example, the Court upheld the constitutionality of the familycare provision of the Family and Medical Leave Act, which allows eligible employees to take up
to twelve weeks of unpaid leave, and “creates a private right of action to seek both equitable relief
and money damages against any employer (including a public agency).” Although evidence of
discriminatory leave policies by state governments was hardly extensive, see Tennessee v. Lane,
541 U.S. 509, 528–29 & n.17 (2004) (describing the limited evidence relied upon in Hibbs, “little
of which concerned unconstitutional state conduct”), the Court deferred to Congress’s
“reasonabl[e] conclu[sions],” and held that the evidence was “weighty enough to justify”
prophylactic legislation. Similarly, in Lane the Court considered whether Congress had authority
under the Fourteenth Amendment to pass Title II of the Americans with Disabilities Act, which
prohibits public entities, including states, from discriminating on the basis of disability in their
services, programs, and activities. Looking into the record and noting the long history of state
discrimination against disabled individuals, the Court found it “not difficult to perceive the harm
that Title II is designed to address.” It held, again with great deference to Congress’s take on the
evidence, that the record, “including judicial findings of unconstitutional state action, and
statistical, legislative, and anecdotal evidence of the widespread exclusion of persons with
disabilities from the enjoyment of public services,” made “clear beyond peradventure” that Title
II was appropriate prophylactic legislation —and this despite the fact that the record¶ included
only two reported decisions finding unconstitutional state action of the precise type at issue. By
contrast, the Court has found that Congress exceeded its Fourteenth Amendment authority where
Planet Debate 2014
February PF Topic – Voting Rights Act
40
the legislative record revealed a “virtually complete absence” of evidence of unconstitutional
state conduct.
Courts always defer to Congress
David Tatel, Senior Circuit Judge, May 2012, US Court of Appeals,
http://www.cadc.uscourts.gov/internet/opinions.nsf/D79C82694E572B4D85257A02004EC903/$file/11-52561374370.pdf
Although our examination of the record will be probing, we remain bound by fundamental
principles of judicial restraint. Time and time again the Supreme Court has emphasized that
Congress’s laws are entitled to a “presumption of validity.” As the Court has explained, when
Congress acts pursuant to its enforcement authority under the Reconstruction Amendments, its
judgments about “what legislation is needed . . . are entitled to much deference.” Id. (internal
quotation marks omitted). Even when applying intermediate scrutiny, the Court has accorded
Congress deference “out of respect for its authority to exercise the legislative power,” and in
recognition that Congress “is far better equipped than the judiciary to amass and evaluate the vast
amounts of data bearing upon legislative questions.” Turner Broad. Sys., Inc. v. FCC, 520 U.S.
180, 195, 196 (1997) (internal quotation marks omitted) (rejecting a First Amendment challenge
to the “must-carry” provisions of the Cable Television Consumer Protection and Competition
Act). And critically for our purposes, although Northwest Austin raises serious questions about
section 5’s constitutionality, nothing in that opinion alters our duty to resolve those questions
using traditional principles of deferential review. Indeed, the Court reiterated not only that
“judging the constitutionality of an Act of Congress is ‘the gravest and most delicate duty that [a
court] is called on to perform,’ ” Nw. Austin, 129 S. Ct. at 2513 (quoting Blodgett v. Holden, 275
U.S. 142, 147–48 (1927) (Holmes, J., concurring)), but also that “[t]he Fifteenth Amendment
empowers ‘Congress,’ not the Court, to determine in the first instance what legislation is needed
to enforce it,”
Planet Debate 2014
February PF Topic – Voting Rights Act
41
Massive Discrimination Prior to VRA Section 5
Example of extreme discrimination prior to the passage of the Voting Rights
Act
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.
After the civil war, minorities were directly excluded from voting
Michael Ellement, JD, Winter 2013, Catholic University Law Review, NOTE: BLOCKING THE
BALLOT: WHY FLORIDA'S NEW VOTING RESTRICTIONS DEMONSTRATE A NEED FOR
CONTINUED ENFORCEMENT OF THE VOTING RIGHTS ACT PRECLEARANCE REQUIREMENT,
p. 544-5
The history of minority voting rights in the United States resembles a swinging pendulum. Periodically throughout U.S.
history, minority enfranchisement increased to ensure greater electoral participation. However, after that right was
exercised, it was limited or stripped. The African-American voting experience, in particular, demonstrates the
inconsistent nature of minority voting rights in the United States. Initially, some American colonies permitted freed
African Americans to cast ballots in elections. However, the post-revolution Constitution failed to secure voting rights
for African Americans nationwide. The turning point for African-American voting rights occurred following the Civil
War with the passage of the Fifteenth Amendment. The Fifteenth Amendment states, "The right of citizens of the
United States 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." However, the Amendment served as a dead letter in the decades following its
enactment. During that time, Congress refused to effectuate its authority over voting rights--allowing state authorities to
deny minority-voter access. Despite this, African-American men were successful in retaining voting rights in some
states, resulting in high voting rates through the end of Reconstruction. However, with this gain, the pendulum swung
again. In an effort to curb high rates of African-American voting, southern states took advantage of weak federal
legislation and affirmatively excluded African Americans from the polls. States implemented a variety of voter
suppression tactics, including literacy tests and poll taxes, in an effort to limit opportunities for African Americans to
access the ballot. These tactics drastically reduced voter participation by African Americans in the South.
Planet Debate 2014
February PF Topic – Voting Rights Act
42
VRA Section 5 Works
Preclearance requirement facilitated improvements in South Carolina’s voter
ID law
Ellen D. Katz, law professor, University of Michigan, South Carolina's "Evolutionary Process", 113
COLUM. L. REV. SIDEBAR 55 (2013), http://www.columbialawreview.org/wpcontent/uploads/2013/03/55_Katz.pdf, p. 63-4
The preclearance process provided the forum in which these concerns were evaluated and ultimately addressed. From
the start, it forced deliberation about the contours and implementation of a new photo ID requirement. It was section 5
that provided the impetus for the legislature to craft the "reasonable impediment" provision in the first instance, n59
and it was section 5 that provided the mechanism through which state officials at trial were able, "often in real time," to
refine the measure so that opportunities for bias in implementation would be minimized. It was, moreover, through the
section 5 framework that the court was able to examine and ultimately reject evidence of intentional bias in enactment
as unrepresentative.
As Judge Bates explained, the preclearance process did not force South Carolina "to jump through unnecessary
hoops," but instead facilitated an "evolutionary process" that addressed problematic aspects of the voter ID measure.
n62 Through its complex web of substantive norms and procedures for their application, the regime provided a forum in
which interested and affected parties were able to identify, dispute, and ultimately address the burdens a proposed
electoral rule threatened to impose on minority voters.
All of this, notably, occurred pursuant to the VRA, rather than outside the reaches of the regime, and it was in this
regard that section 5 provided additional, albeit largely overlooked, service. As Act R54 progressed through the
legislature, in communications with DOJ, and in the litigation that followed, state officials engaged not in an openended inquiry into what abstract notions of fairness or equality might dictate, but, instead, in a far more concrete and
narrow examination of what the VRA mandated. The debate was periodically contentious, to be sure, but it was also
circumscribed, focusing throughout on what federal law required rather than on the broader, more open-ended question
of what is normatively fair.
In this way, section 5 operated both as a constraint and as an affirmative tool of governance for the officials who
crafted and would ultimately implement it. That is, section 5 shaped the development of a less burdensome policy
without forcing state officials to spend political capital convincing the skeptical or hostile of anything beyond the
measure's compliance with federal law. The preclearance process accordingly guided and tempered a contentious debate
by providing the terms under which debate would occur and the procedures those engaged in it needed to follow.
The discrimination that originally made section 5 necessary has shaped contemporary politics in enduring ways,
and it forces public officials to confront questions of equality that are inherently difficult to resolve. To the extent the
preclearance regime helps to structure and temper debate, it provides vital assistance as a means to address and resolve
these conflicts.
Section 5 important to blocking voter ID laws
Stephen Ansolabehere is Professor of Government at Harvard University; Nathaniel Persily is the
Charles Keller Beekman Professor of Law and Political Science at Columbia Law School; and Charles
Stewart III is the Kenan Sahin Distinguished Professor of Political Science at the Massachusetts Institute
of Technology, 2013, REGIONAL DIFFERENCES IN RACIAL POLARIZATION IN THE 2012
PRESIDENTIAL ELECTION: IMPLICATIONS FOR THE CONSTITUTIONALITY OF SECTION 5
OF THE VOTING RIGHTS ACT, Harvard Law Review Forum, 126 Harv. L. Rev. F. 205, p. 206
Even more now than four years ago, both sides in the VRA debate look to the most recent election to support their case.
Critics of the VRA point to the reelection of the nation's first African American president, amidst record rates of
minority voter turnout, as evidence of how "times have changed" since 1965. The "strong medicine" n4 of the VRA is
no longer needed in the South, they argue, because the historic barriers to minority participation and office holding have
Planet Debate 2014
February PF Topic – Voting Rights Act
43
largely vanished. For supporters of the VRA, the history since 1965 and the 1982 reauthorization demonstrate the
continuing danger to minority voting rights in the covered jurisdictions. They point also to this past election as
confirming Congress's suspicions in the reauthorization process as new obstacles to voting, such as photo identification
laws and restrictions on early voting, were more prevalent in the covered states. In the run up to the 2012 election,
section 5 proved it had bite, as photo ID and other laws were prevented from going into effect by the Department of
Justice (DOJ) or the district court in Texas, South Carolina, and Florida, and Texas's congressional redistricting plan
was found to be intentionally discriminatory.
Few minorities voted in many states prior to the Act
Kevin Clarkson, The Alaska Bar Rag, July - September, 2013, 37 AK Bar Rag 1
COURT'S DECISION ON VOTING RIGHTS ACT LONG OVERDUE
The Court and the VRA. In 1966 in South Carolina v. Katzenbach the Court upheld the VRA against constitutional
challenge, explaining that it was justified to address "voting discrimination where it persists on a pervasive scale." The
"blight of racial discrimination in voting," the Court explained, had "infected the electoral process in parts of our
country for nearly a century." Shortly before the enactment of the VRA, only 19.4 percent of African-Americans of
voting age were registered to vote in Alabama, only 31.8 percent in Louisiana, and only 6.4 percent in Mississippi,
roughly 50 percentage points or more below the figures for whites. The Court found the VRA to be a "permissibly
decisive" remedy, "[u]nder these unique circumstances."
VRA radically increased minority participation in elections
Michael Ellement, JD, Winter 2013, Catholic University Law Review, NOTE: BLOCKING THE
BALLOT: WHY FLORIDA'S NEW VOTING RESTRITIONS DEMONSTRATE A NEED FOR
CONTINUED ENFORCEMENT OF THE VOTING RIGHTS ACT PRECLEARANCE REQUIREMENT,
p. 545-7
In the 1950s and 1960s, attention turned to preserving minority voting rights. Through the Civil Rights Act of 1957,
Congress authorized the Attorney General to seek injunctions against those who interfered with an individual's right to
vote on the basis of race, resulting in some gains in African-American enfranchisement. However, these efforts had
little impact on the overall status of minorities in the electoral process.
In 1965, Congress adopted the VRA, which sought to eliminate restrictions on voter access and "banish the blight of
racial discrimination in voting, which ha[d] infected the electoral process in parts of [the] country." One important
feature of the VRA required jurisdictions with a history of racial discrimination to obtain approval, known as
"preclearance," from a federal body before enforcing changes to its election laws or voting procedures. In the five years
following the VRA's passage, the number of registered African-American voters more than doubled in southern states,
evidencing the important role the VRA played in protecting the rights secured by the Fifteenth Amendment.
Voting Rights Act substantially strengthened black political participation
Bertrall L. Ross II, Assistant Professor of Law, December 2013, University of California, Berkeley School of Law,
California Law Review, Democracy and Renewed Distrust: Equal Protection and the Evolving Judicial Conception of
Politics, p. 1588-9
The Court's constitutional vote dilution doctrine worked in tandem with close judicial scrutiny of voting qualifications
that disenfranchised marginalized minorities, such as state poll taxes and property qualifications. The doctrine also
complemented Congress's Voting Rights Act, which the Court itself further reinforced through a broad interpretation of
the Act. As a result of the Court's broad interpretation of the VRA, places that had historically excluded blacks from the
political process experienced not only significant growth in registration but also in black office-holding, an important
indicator of increased representation.
VRA has been successful
Planet Debate 2014
February PF Topic – Voting Rights Act
44
Supreme Court Justice Ginsburg, 2013, (+ justices Breyer, Sotomayor, and Kagan, Shelby County v.
Holder, June 25,
http://www2.bloomberglaw.com/public/desktop/document/Shelby_Cnty_v_Holder_No_1296_2013_BL_1
67707_US_June_25_2013_Court)
After a century's failure to fulfill the promise of the Fourteenth and Fifteenth Amendments,
passage of the VRA finally led to signal improvement on this front. "The Justice Department
estimated that in the five years after [the VRA's] passage, almost as many blacks registered [to
vote] in Alabama, Mississippi, Georgia, Louisiana, North Carolina, and South Carolina as in the
entire century before 1965." Davidson, The Voting Rights Act: A Brief History, in Controversies
in Minority Voting 7, 21 (B. Grofman & C. Davidson eds. 1992). And in assessing the overall
effects of the VRA in 2006, Congress found that "[s]ignificant progress has been made in
eliminating first generation barriers experienced by minority voters, including increased numbers
of registered minority voters, minority voter turnout, and minority representation in Congress,
State legislatures, and local elected offices. This progress is the direct result of the Voting Rights
Act of 1965." Fannie Lou Hamer, Rosa Parks, and Coretta Scott King Voting Rights Act
Reauthorization and Amendments Act of 2006 (hereinafter 2006 Reauthorization), On that matter
of cause and effects there can be no genuine doubt.
Planet Debate 2014
February PF Topic – Voting Rights Act
45
Discrimination Will Increase Absent Section 5
Continued enforcement is necessary to protect against discrimination
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, p. 251-2
IV. CONCLUSION
The evidence shows that the prophylactic remedies of the targeted provisions of the VRA are still necessary to ensure
the effective enfranchisement of millions of citizens. Further, the district court in Shelby County did not establish a
sound justification for the abandonment of nearly a half-century of rationality deference to Congress's enforcement
authority under Section 2 of the Fifteenth Amendment. The need to confine Congress to an enforcement role, instead of
an interpretive role, which motivated the development of the stringent congruence and proportionality review in City of
Boerne, is not present in the narrow context of the Fifteenth Amendment, which simply protects a suspect class's
fundamental right to vote. Further, a shift from rational basis review to congruence and proportionality will undermine
Congress's primary purpose in enacting the prophylactic provisions, and thus shift the burden of proving discrimination
from individuals and the federal government to the perpetrators to disprove discriminatory intent or effect. As such, the
district court in Shelby County should have continued to apply the rational means standard employed by the Supreme
Court in Katzenbach in the context of the Fifteenth Amendment since the passage of the VRA in 1965. Although
NAMUNDO was correct that review of the reauthorization of the VRA must not be based on a stagnant history of
discrimination, once Congress performs its delegated function to collect and evaluate the current evidence of continued
racial discrimination in access to voting rights, the court should afford those conclusions the appropriate level of
deference they deserve.
Absent Section 5 enforcement, Florida will pass unfair and restrictive voting
laws
Michael Ellement, JD, Winter 2013, Catholic University Law Review, NOTE: BLOCKING THE
BALLOT: WHY FLORIDA'S NEW VOTING RESTRICTIONS DEMONSTRATE A NEED FOR
CONTINUED ENFORCEMENT OF THE VOTING RIGHTS ACT PRECLEARANCE
REQUIREMENT, p. 540-2
Do you read the stories about the people in Africa? The people in the desert, who literally walk two and three
hundred miles so they can have the opportunity to [vote], and we want to make it more convenient? . . . Why
would we make it any easier? I want 'em to fight for it. I want 'em to know what it's like. I want them to go down
there, and have to walk across town to go over and vote.
-Florida State Senator Mike Bennett, floor speech in support of Florida House Bill
Should a democratically elected government take steps to make it easier for its citizens to exercise their right to
vote? Or should a government make the process more difficult, ensuring that only a limited number of citizens go to the
polls?
Between 2011 and 2012, nineteen states passed legislation changing their voting laws. In particular, Florida passed
House Bill (H.B.) 1355 that made a total of eighty changes to the state's election laws and procedures. n4 The most
substantial of these changes were new regulations for third-party voter registration groups and limitations on early
voting. Additionally, the state made plans to purge its voter rolls of registered voters who were possibly ineligible to
vote.
The Voting Rights Act (VRA) restricts changes enacted by Florida from immediately taking effect. n7 Florida,
along with other jurisdictions with a history of racial discrimination, n8 is required to obtain "preclearance" of their
election law changes under section 5 of the VRA. Florida must submit new election "practice[s], or procedure[s]" to the
Department of Justice (DOJ) or, alternatively, to the U.S. District Court for the District of Columbia for review. n10
Planet Debate 2014
February PF Topic – Voting Rights Act
46
The changes must be reviewed and will be cleared only if they have neither "the purpose nor . . . the effect of denying or
abridging the right to vote on account of race or color."
However, following the passage of H.B. 1355 and the plan to effect a statewide voter purge, officials in Florida
displayed hostility toward compliance with the preclearance process. Officials withdrew changes from the DOJ and
district court review, made plans to implement the changes contained in H.B. 1355 prior to obtaining preclearance,
maintained that the preclearance requirement is unconstitutional, and refused to submit their plan to purge voter rolls for
preclearance.
The section 5 preclearance process slowed some of the attempts by the state to implement the full scope of the
election changes. Specifically, the District Court for the District of Columbia initially refused to grant preclearance to
changes to early voting as enacted in the bill. However, the District Court's opinion also included a blueprint of an
acceptable path to preclearance, whereby the covered counties could reduce the number of days they permitted early
voting, as long as they provided the same total number of hours. The counties quickly made plans to conform with the
court's suggested blueprint, and the DOJ subsequently did not oppose preclearance of the changes. This allowed for the
changes to take effect statewide during the 2012 election--leading to long lines at polling sites across the state and
decreased turnout during the early voting period. Similarly, a section 5 lawsuit filed by a group of voters against the
state highlighted many of the defects in Florida's proposed plan to purge its voter rolls without obtaining preclearance.
Specifically, the original list of registered voters identified for the purge contained not only illegally registered voters,
but also a high number of validly registered voters. After the section 5 lawsuit was filed, the state backtracked and
made plans to proceed with a more limited list of names, signaling a slight victory for voting rights' advocates.
However, the state still refused to submit the more limited purge for preclearance review. As of this Note's publication,
litigation attempting to compel review of the purge under section 5 is ongoing.
This Note explores Florida's regressive voting changes that were implemented before the 2012 election and
analyzes these changes under the VRA's standard for preclearance. This Note finds that section 5 preclearance has been
somewhat effective in preventing the enforcement of some of the most drastic of Florida's election law changes.
However, this Note further finds that Florida's experience demonstrates the need for continued vigorous enforcement of
the strictures of section 5 to prevent future abuses of voting rights.
Jim Crow won’t return but other forms of discrimination will return
Stephen Ansolabehere is Professor of Government at Harvard University; Nathaniel Persily is the Charles
Keller Beekman Professor of Law and Political Science at Columbia Law School; and Charles Stewart III
is the Kenan Sahin Distinguished Professor of Political Science at the Massachusetts Institute of
Technology, 2013, REGIONAL DIFFERENCES IN RACIAL POLARIZATION IN THE 2012
PRESIDENTIAL ELECTION: IMPLICATIONS FOR THE CONSTITUTIONALITY OF SECTION 5 OF
THE VOTING RIGHTS ACT, Harvard Law Review Forum, 126 Harv. L. Rev. F. 205, p. 206-7
All involved in the debate over the VRA must admit, however, that we do not know exactly what the world will look
like if section 5 is struck down. Of course, the South would not revert back to Jim Crow days: politics has evolved
beyond the days of threatened lynchings for the exercise of the franchise. But the many examples in the legislative
record of voting rights violations prevented by the VRA hint at what might happen if the covered jurisdictions were
otherwise unconstrained. Even if Jim Crow will not return, the familiar regional pattern of discrimination might, as new
stratagems replace old ones with minority voters becoming collateral damage in increasingly vicious partisan fights.
VRA enforcement critical to protect voting rights in Florida
Michael Ellement, JD, Winter 2013, Catholic University Law Review, NOTE: BLOCKING THE
BALLOT: WHY FLORIDA'S NEW VOTING RESTRICTIONS DEMONSTRATE A NEED FOR
CONTINUED ENFORCEMENT OF THE VOTING RIGHTS ACT PRECLEARANCE REQUIREMENT,
p. 565-8
III. How THE VRA CAN CONTINUE TO PROTECT VOTING RIGHTS IN FLORIDA
Although the VRA has been the subject of much criticism in recent years, n194 Florida's legislative and executive
actions in 2011 and 2012 demonstrate a need for section 5 preclearance as a tool for reviewing state actions that may
Planet Debate 2014
February PF Topic – Voting Rights Act
47
have a retrogressive effect on minority voting rights. The district court's opinion denying preclearance to Florida's early
voting changes clearly highlights the need for continued aggressive enforcement of the preclearance requirement. n195
However, the state's changes to third-party registration organization requirements and the state's attempt to implement a
statewide voter purge--compounded by the state's efforts to evade the preclearance process--additionally demonstrate
the need for federal review of voting legislation. n196 Moreover, the circumstances leading to the enactment of H.B.
1355 indicate that legislation arguably designed to restrict voter participation yet persists, making the preclearance
requirement relevant in modern America.
A. The District Court's Incomplete Analysis of H.B. 1355 Misses an Important Opportunity to Address the Effect of
Florida's Early Voting Changes
1. Changes to Early Voting Are Retrogressive
H.B. 1355 eliminated important early voting opportunities upon which Floridians relied in recent elections. Despite
the district court's initial denial of preclearance to Florida's early voting changes, the court eventually allowed the
reduced number of early voting days to take effect. A study conducted by Professors Michael Herron and Daniel Smith
[the Herron-Smith study] reviewing the effect of Florida's early voting changes on the 2012 election found that the
changes had a substantial impact on minority voting. This suggests that a reduction in early voting days will likely lead
to lower early voting numbers in future elections, especially when compared to the high level of early voting that
Florida saw in 2008.
Importantly, such changes to early voting are likely to decrease minorities' ability to participate in the electoral
process. More than half of the votes cast by African Americans in Florida in the 2008 presidential election were cast
during the early voting period. In the five counties required to obtain preclearance under the VRA, African Americans
numbered nearly twenty percent of early votes, a higher percentage compared to their representation in the electorate as
a whole. Similarly, an elimination of the Sunday prior to election day as an early voting option is also likely to impact
African-American voting totals in future elections, given the importance of that day in prior elections. Indeed, the
Herron-Smith study specifically found that "the voting rights of racial and ethnic minorities [in the 2012 election]
appear to have been disproportionately hampered by H.B. 1355's reduction in the number of early voting days,
particularly the elimination of the final Sunday of early voting."
In a seemingly drastic position change, Florida's Secretary of State Detzner, at the direction of Governor Scott,
released a report indicating that the decreased number of early voting days in the state contributed to inefficiency during
the 2012 election. n206 The report presents the Florida Department of State's view that H.B. 1355's changes to early
voting should be reversed, and early voting should return to the pre-H.B. 1355 structure.
2. The District Court's Opinion Misapplied the Preclearance Requirement and Permitted Retrogressive Early
Voting Changes to Proceed
Under the VRA, a covered jurisdiction seeking a declaratory judgment that a voting change satisfies the
preclearance requirement has the substantial burden to establish that the proposed changes to election laws or
procedures will not have the purpose or effect of denying the right to vote on account of race. A state cannot meet its
burden under the VRA by merely demonstrating a lack of intent to inhibit voting on the basis of race. Rather, the
covered jurisdiction must demonstrate that a change, although neutral on its face, will not have the effect of diminishing
the ability of citizens to exercise their right to vote on account of race.
The district court, in its review of H.B. 1355's early voting changes, applied what can only be described as judicial
tunnel-vision, missing an important opportunity to address some key concerns. In declining preclearance, the court
focused primarily on the potential decrease in the number of hours available for early voting. Although the total number
of hours that early voting sites are open is certainly a relevant consideration, it is not determinative. Disregarding other
factors not only ignores why early voting is effective at increasing electoral participation, but also discounts Florida's
early voting history.
Specifically, the Court made two critical errors when analyzing H.B. 1355's early voting changes. First, the Court
disregarded that H.B. 1355 limits the number of days that early voting locations are open, noting that if the polls were
open for the same number of total hours, the change would not cause a retrogression in minority voting. This reasoning
ignores the purpose behind early voting, which is to ensure that voters have increased opportunities to cast a ballot. The
number of days--not just hours--a polling site is open is a significant factor in achieving this goal, especially for rural
voters and voters with demanding work schedules. For such voters, early voting sites with extended hours that are open
for just a few days are not beneficial, since these voters often lack the ability to travel to polls on particular days. The
Planet Debate 2014
February PF Topic – Voting Rights Act
48
flexibility of Florida's early voting regime prior to H.B. 1355 allowed county election officials to open polls over a
period of two weeks, tailoring the times to ensure the greatest electoral participation in a given county. The reduction of
early voting days to a maximum of eight days limits this flexibility and unnecessarily restricts voters' opportunities to
access the polls.
The district court also failed to sufficiently address H.B. 1355's changes to Sunday voting. Recognizing that H.B.
1355 eliminated the availability of early voting on the Sunday prior to Election Day, the court acknowledged that the
day produced large gains in minority voter participation in the previous two federal elections n217 but nevertheless
found that the change would not cause a retrogression in minority voting because voting could still occur on the Sunday
two weeks prior to the election. Although it is true that voting can still occur on Sundays generally, the district court's
analysis failed to recognize the unique circumstances that led to high minority voting participation on the Sunday prior
to Election Day. The Sunday prior to Election Day was the principal time that ministers in minority community
churches encouraged their congregations to vote. It was not simply that this was a Sunday, but rather the imminence of
the pending election combined with the large numbers of minority voters in one location who could be persuaded to
vote that led to the high turnout on that particular Sunday. The district court was again mistaken to treat this fact as
irrelevant. Indeed, the Herron-Smith study, reviewing H.B. 1355's changes after the 2012 election, found that the district
court "underestimated the impact of curtailing the number of early voting days on minority access to the polls," noting
that the court's presumptions were directly refuted by the 2012 election turnout's demographic data.
B. Florida's Third-Party Voter Registration Changes and Voter Purge Attempt Also Demonstrate the Need for
Federal Review of Voting Legislation
1. Changes to Third-Party Registration Requirements Are Retrogressive
Third-party registration organizations serve a crucial purpose in increasing voter participation. Particularly, these
groups have been successful in registering large numbers of minority voters in Florida. Increasing minority voter
registration was one of the primary goals of the original VRA and served as a justification for the preclearance
requirement under section 5.
If Florida had not been enjoined from implementing new restrictions on third-party organizations, it is arguable that
minority voters would have been negatively impacted in the 2012 election. H.B. 1355 contained harsh requirements on
these organizations, including the procedures that organizations were required to follow when returning voter
registration forms to the state. These regulations, if not strictly adhered to, may have resulted in substantial fines to
third-party organizations. The detrimental effects of this provision were seen when the League of Women Voters--a
group known for its success in registering voters--suspended its voter registration activities in Florida out of fear that it
could not comply with the new provisions. Based on the high rate at which minority voters utilize third-party
registration groups to register to vote, such a change would have likely reduced minority participation in the 2012
election. The potential retrogressive effect of such legislation further evidences the need for federal review of election
law changes.
2. Florida's Voter Purge Attempt Is Retrogressive
Florida's attempt to remove voters from its election rolls further highlights the importance of the protections
afforded by the VRA. It is undisputed that a number of the initial individuals identified by the voter purge were eligible
voters, and that minority voters were disproportionately affected by the purge. Moreover, the process recommended by
Secretary Detzner, which would have county supervisors remove registered voters from voter rolls if they did not
provide proof of citizenship within thirty days, leaves little room for error. Under this policy, an eligible voter who
carelessly handled his or her mail could potentially find his or her name removed from the voter rolls and unable to cast
a ballot on Election Day.
Despite these harsh realities, the state has taken the position that such changes are not subject to the preclearance
requirement. However, the litigation seeking to compel Florida to comply with section 5's requirements emphasizes the
important effects that the preclearance process can have on a state's actions. Interestingly, when the section 5 voter
purge litigation began, Florida was in the process of recommending that 2,700 registered voters submit eligibility
verification. The section 5 suit highlighted that many individuals on this list were eligible voters. Shortly thereafter, the
state halted its purge plans and later submitted a significantly diminished list of only 198 names to county supervisors
for eligibility verification. This highlights an important reality in section 5 cases: often litigation--although unable to
completely prevent a jurisdiction from implementing voting changes that adversely effect minorities--will have the
effect of tempering state action aimed at altering voting laws. Such is the case with Florida's voter purge, where the
Planet Debate 2014
February PF Topic – Voting Rights Act
49
threat of section 5 litigation was likely a contributing factor in the state's decision to significantly limit the number of
identified voters to be purged from the state's voter rolls. Given this reality, it is evident that the preclearance
requirement's purpose is served by subjecting the Florida voter purge, and others like it, to administrative review.
C. Florida's Justifications for H.B. 1355, Coupled with Its Behavior Through the Preclearance Process,
Demonstrates that Florida Had an Improper Purpose in Enacting the Law
In addition to the retrogressive effect on minority voter participation, the circumstances leading to the enactment of
H.B. 1355 further suggest that these changes were made to intentionally disenfranchise African Americans--evidencing
an improper purpose under section 5. The justification for the changes given by public officials in Florida heightens this
suspicion. Namely, several members of the Florida legislature justified their support of H.B. 1355 by stating that voting
should be more difficult, and that a convenient form of voting rewards the politically inept. The statements made by
these officials suggest that they may believe that democracy benefits when only the well-informed vote and that laws
should be enacted to make the voting process more ardous in order to deter less-informed voters. Such a contention is
unavailing. Enacting voting barriers to limit voting rights demeans the purpose of the Fifteenth Amendment and the
VRA, both of which were enacted to ensure that every eligible voter would be permitted to vote without facing
unnecessary hurdles from private or state actors.
Election changes by Florida should not be viewed in a vacuum. Rather, these changes should be considered in light
of the more than one-dozen other jurisdictions that enacted changes to their voting laws in 2011 and 2012, including the
five states that limited early voting. Although the DOJ and the District Court for the District of Columbia do not
typically consider voting changes in other jurisdictions when considering whether to grant preclearance, this concept is
not foreign to the VRA. The original preclearance requirement was enacted specifically in response to collusion among
jurisdictions that attempted to stay ahead of federal regulation of voting rights. With this history in mind, when
addressing preclearance, the district court and the DOJ should not ignore similar changes in other jurisdictions that
appear to have parallel effects on minority voting. In the present case, the limitations placed on early voting by five
states and the elimination of the Sunday prior to Election Day as an early voting option by three states should not go
unnoticed. Likewise, that nearly one dozen states made substantial changes to their voting procedures shortly after the
election of the nation's first African-American president, and a year before a major presidential election, are facts that
should not be dismissed as mere coincidence. Instead, the courts should treat such circumstances as supporting evidence
of discriminatory motives.
D. Importance of Continued Enforcement of Section 5
In NAMUDNO, the Supreme Court suggested that the preclearance authority of section 5 may no longer be
necessary to enforce minority-voting rights. In an attempt to demonstrate this, the Court surveyed the changing
demographics in voter representation and emphasized the increased number of minority voters casting ballots. As of the
writing of this Note, the Court is scheduled to consider a direct challenge to section 5 in Shelby County. When it does,
the Court would be remiss to ignore recent voting legislation.
The facts surrounding Florida's passage of H.B. 1355 and voter purge attempt demonstrate an urgent need for the
preclearance requirement. In particular, Florida's actions demonstrated the ability--and desire--of a state to restrict
voting in a manner that could limit minorities' ability to vote. n254 These concerns can only be addressed by requiring
jurisdictions with a history of such disenfranchisement to seek review of their voting changes. The preclearance process
ensures that such a review takes place.
The case of Florida demonstrates not only the need for the preclearance requirement, but also its effectiveness. As
outlined in this Note, the preclearance requirement has been utilized to slow Florida's plan to purge voter rolls, and it
has prevented the full implementation of Florida's initial proposals for early voting restrictions. n255 Now, even
Florida appears to agree that the initial purge attempt was flawed, and that the restrictions on early voting should be
lifted. n256 It is hard to imagine where Florida would be without the section 5 review process. The purge attempt
would have gone forward without challenge, leading to the removal of validly registered voters [*573] from the voter
rolls. n257 Further, the early voting changes would have been implemented to their fullest extent, giving county
election officials full discretion to determine an early voting site's operating hours. n258 The preclearance process
prevented the most drastic of these consequences.
If anything, the preclearance requirement should be strengthened, not weakened. As recognized by this Note, the
District Court for the District of Columbia's preclearance decision permitted covered counties to implement H.B. 1355's
changes to early voting as long as the counties offered the same number early voting hours, over a decreased number of
Planet Debate 2014
February PF Topic – Voting Rights Act
50
days. As evidenced by the 2012 election, this change had the effect of decreasing minority participation in the voting
process. Courts reviewing such changes in the future should be mindful of their role in vigorously enforcing the
strictures of section 5. Only with vigorous enforcement is the VRA's purpose achieved. Lastly, although Florida's
situation provides ample evidence of the continuing need for section 5 enforcement, Florida is not alone. Rather, Florida
is one of over a dozen states that chose to modify their voting laws in 2011 and 2012, making it more difficult for
individuals to access the ballot. This reality should not go unnoticed when considering the future of section 5. Instead,
in determining whether Congress continues to maintain the authority to subject states to the preclearance requirement,
attention should be given to the enactment of any legislation likely to negatively affect minority participation in
elections.
IV. CONCLUSION
Historically, high minority voting participation has often been met with the implementation of voting restrictions.
The VRA preclearance requirement was intended to prevent actions by a covered jurisdiction to alter its voting
procedures in a manner that would limit opportunities for voters to cast a ballot. The changes made by Florida in
advance of the 2012 election were precisely the type of alterations that the VRA preclearance requirement was designed
to prevent. These changes demonstrate that the mission of the VRA is as relevant today as when President Johnson
introduced the bill over forty years ago.
Florida sought to disenfranchise blacks by reducing early voting
Michael Ellement, JD, Winter 2013, Catholic University Law Review, NOTE: BLOCKING THE
BALLOT: WHY FLORIDA'S NEW VOTING RESTRICTIONS DEMONSTRATE A NEED FOR
CONTINUED ENFORCEMENT OF THE VOTING RIGHTS ACT PRECLEARANCE REQUIREMENT,
p. 553
1. Florida's H.B. 1355
On May 19, 2011, Florida Governor Rick Scott signed into law Florida House Bill 1355. The bill made eighty
changes to Florida's election laws and procedures. Following the bill's enactment, Kurt Browning, then Secretary of
State for the State of Florida, ordered immediate implementation of a majority of the voting changes--prior to obtaining
preclearance. The American Civil Liberties Union sued, alleging that Florida had attempted to implement the changes
without seeking preclearance. Shortly thereafter, Secretary Browning submitted the entirety of H.B. 1355 to the DOJ for
administrative preclearance review.
The DOJ approved seventy-six of the eighty changes in H.B. 1355, but it requested more information regarding the
changes to early voting, third-party voter registration, citizen-proposed constitutional amendments, and voter address
changes. After the DOJ's request, Secretary Browning withdrew the four changes that had not received preclearance and
instead filed an action for declaratory judgment in the U.S. District Court for the District of Columbia.
i. Early Voting
The first of the four changes submitted to the district court involved changes to early voting procedures. Early
voting is a process by which voters are permitted to cast a ballot before Election Day. n94 Early voting in the United
States first gained momentum in the 1990s. Following the 2000 presidential election, an increased number of states
made electoral reforms that included early voting opportunities.
Statewide early voting in Florida began in 2004, and it was utilized heavily during the 2008 presidential contest.
The presidential campaigns made concerted effort to mobilize early voters across the nation, particularly in Florida.
n100 Their efforts were successful, and early voting increased in Florida during the 2008 election, with thirty-two
percent of all voters casting early ballots. This represented a one-hundred percent increase in early votering in Florida
compared with the 2004 election.
The most significant change in 2008 was the high rate at which African Americans utilized early voting. More than
half of African-American votes in Florida were cast during the early voting period. Many of these votes were cast
during the first week of early voting. Interestingly, a high percentage of African-American voters utilized early voting in
the five Florida counties covered under the VRA preclearance requirement. Although African Americans comprised
only twelve percent of the voting-age population in the five covered counties, African Americans represented nearly
Planet Debate 2014
February PF Topic – Voting Rights Act
51
nineteen percent of early voters in the 2008 general election in those counties. Another interesting phenomenon that
developed during the 2008 election was the high African-American early-voter turnout on the Sunday before Election
Day. This trend is due in part to African-American ministers encouraging their congregations to vote early in what
became know as "souls to the polls" drives. As one State Representative put it, "On that Sunday before the election,
[ministers] told their congregation members we're going to leave church when church is over and we're going to the
polls." African Americans represented thirty-one percent of the total voters on the Sunday prior to Election Day, even
though they comprised only thirteen percent of the Florida electorate. Similarly, Hispanic voters represented eleven
percent of the electorate, but were twenty-two percent of the total voters on the Sunday prior to Election Day. Florida's
H.B. 1355 reduced the number of early voting days from fourteen days to eight days. Additionally, the bill gave local
election supervisors discretion to choose the early voting hours of operation for each site, essentially changing the hours
from a mandatory eight hours per day (other than weekends), to a discretionary range of six to twelve hours per day.
Under the bill, election supervisors could reduce the total early voting hours from ninety-six hours to a minimum of
forty-eight hours. H.B. 1355 also shifted the time period for early voting in the state, thereby removing the Sunday prior
to Election Day as an early voting option. The legislative debates on the bill indicated two reasons for changing early
voting. Some supporters of the reduction in early voting days noted that the change would cut costs. Others contended
that the number of early voting opportunities under the existing system was too generous, and that it rewarded those not
politically active by allowing them to vote more than a week in advance of the election. n
Restrictive voting laws in New York will now be enforced
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 AfricanAmerican 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
Planet Debate 2014
February PF Topic – Voting Rights Act
52
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.
Available evidence suggests that discrimination would likely be greater
without Section 5
Justin Levitt is a Visiting Associate Professor of Law at Yale Law School and an Associate Professor at Loyola Law
School in Los Angeles, The Yale Law Journal Online, June 7, 2013, The Yale Law Journal Online, Section 5 as
Simulacrum, http://yalelawjournal.org/2013/06/07/levitt.html.
The problem is that the most probative evidence for this relevant inquiry effectively requires evaluating Mississippi in
2006 without section 5. This is a counterfactual beyond anyone's capacity to model or measure accurately. As a result,
Congress necessarily had to turn to proxies. I have argued elsewhere that the absence of bailout, coupled with present
evidence of harm, essentially serves as a proxy at least as meaningful as other contemporary data. The logic is as
follows. The original formula covered jurisdictions where democracy was effectively broken--that is, where elections in
1964, 1968, or 1972 were held without the participation of at least half of the eligible electorate. Any jurisdiction where
participation was not limited "on account of" race or language minority status could bail out, leaving areas covered only
where participation was limited on account of race or ethnicity, often through vicious intentional discrimination. Other
jurisdictions that were found to have engaged in intentional discrimination on the basis of race or language minority
status could be covered through the bail-in mechanism. After August 4, 1984, any jurisdiction could bail out of
coverage with a ten-year record of "good behavior" preserving and working to improve the political participation of
minorities. Together, this means that jurisdictions not covered in 2006 either were not broken n24 or had been broken
and demonstrated improvement. In these jurisdictions, Congress determined that remedies other than preclearance (e.g.,
affirmative litigation under section 2) might suffice to address occasional lapses or new difficulties. In contrast,
jurisdictions that were covered in 2006 and unable to bail out had been broken on account of race, and had not yet
demonstrated a sufficient departure from the patterns of the past. That fact alone is a powerful indication that, absent
section 5, there would be a meaningful difference between non-covered jurisdictions and covered jurisdictions in the
potential efficacy of alternative remedial schemes. When added to 15,000 pages of legislative records articulating
current threats to minority participation in covered jurisdictions, even given the presence of section 5, the proxy
becomes stronger still.
Post Shelby, many jurisdictions moved to implement changes in voting
requirements that had been prohibited
Marcia Henry, Senior Attorney-Legal Editor, Clearinghouse Review: Journal of Poverty Law and Policy,
September - October 2013
Covered jurisdictions wasted no time in the wake of the Shelby County decision. With the preclearance requirement out
Planet Debate 2014
February PF Topic – Voting Rights Act
53
of their way, several moved quickly to implement changes in voting procedures that the U.S. Department of Justice had
barred. First out of the gate was Texas, where within hours of the decision officials announced plans to enforce a photo
identification requirement that "had been blocked by a federal court on the ground that it would disproportionately
affect black and Hispanic voters." In August the Justice Department announced plans to challenge Texas' move under
Section 2 of the Voting Rights Act and seek relief under Section 3, the so-called bail-in provision, which essentially
allows a federal court to reinstate the preclearance requirement if the Justice Department can show that the right to vote
has been abridged on the basis of race. Alabama and Mississippi announced plans to enforce laws that had not yet
received preclearance. And North Carolina was the first state in the wake of Shelby County to pass new legislation that,
advocates contend, will make voting harder for people of color. Advancement Project and private attorneys are
challenging the North Carolina legislation in federal court; they contend that the legislation violates Section 2 of the
Voting Rights Act.
Planet Debate 2014
February PF Topic – Voting Rights Act
54
Section 5 Needed to Fight Racism
Section 5 remedy necessary to fight pervasive discrimination
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
Petitioner asks this Court to review the court of appeals’ determination that Congress validly
acted pursuant to its constitutional authority to enforce the Fourteenth and Fifteenth Amendments
when it reauthorized Sections 4(b) and 5 of the Voting Rights Act in 2006. Although that is
certainly an important question of federal law, review by this Court is not warranted.¶ This Court
has “acknowledge[d] the necessity of” Congress’s use of “strong remedial and preventive
measures” under its Fourteenth and Fifteenth Amendment enforcement powers “to respond to the
widespread and persisting deprivation of constitutional rights resulting from this country’s history
of racial discrimination.” Section 5 of the VRA is the quintessential example of such a remedy.
Prior to the 2006 reauthorization, this Court had already upheld the constitutionality of Section 5
on four occasions, spanning multiple reauthorizations.
Section 5 enforcement has recently blocked intentional discrimination
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
Examples of intentional discrimination blocked by Section 5 are numerous. As but one notable
example, in 2001, the Attorney General interposed an objection regarding Kilmichael,
Mississippi, after the all-white incumbent town governance tried to cancel an election shortly
after black citizens had become a majority. When the citizens of Kilmichael finally voted, they
elected the town’s first African-American mayor and three African-American aldermen. There
are numerous additional examples. See Pet. App. 29a- 31a; see also, e.g., History, Scope &
Purpose 830-833 (2000 objection to redistricting plan for Webster County, Georgia, school board
undertaken to “intentionally decreas[e] the opportunity of minority voters to participate in the
electoral process” after majority black board was elected); (1998 objection to redis- tricting plan
for Grenada, Mississippi, adopted with “purpose to maintain and strengthen white control of a
City on the verge of becoming majority black”).¶ Very recently, a three-judge court found that
Texas engaged in intentional discrimination against its black and Latino citizens when it drew
new boundaries for its congressional and State Senate districts following the 2010 decennial
census. Texas v. United States, No. 11- 1303, 2012 WL 3671924 (D.D.C. Aug. 28, 2012), notice
of appeal filed, Docket entry No. 234 (D.D.C. Aug. 31, 2012). The court concluded, for example,
that Texas had redrawn congressional district lines to remove the home offices of numerous
incumbent minority legislators from their districts without inflicting the same bur- den on even
one Anglo legislator—a pattern the court determined was “unexplainable on grounds other than
race.” The court also noted that, “[i]n the last four decades, Texas has found itself in court every
redistricting cycle, and each time it has lost.” Such a pattern confirms Congress’s determination
that Section 5 is still needed in covered jurisdictions.
Planet Debate 2014
February PF Topic – Voting Rights Act
55
A2: Case by Case/Section 2 Litigation Solves
Litigation can’t succeed before the harm occurs
Justin Levitt is a Visiting Associate Professor of Law at Yale Law School and an Associate Professor at
Loyola Law School in Los Angeles, The Yale Law Journal Online, June 7, 2013, The Yale Law Journal
Online, Section 5 as Simulacrum, http://yalelawjournal.org/2013/06/07/levitt.html., p. 164
But even when preclearance and responsive litigation are trained on the same contested electoral rules and arrive at
essentially the same conclusions with respect to their legality, there are enormous practical distinctions between the
regimes. Responsive litigation depends on an ability to amass, process, and present substantial information-demographic and electoral data, formal legislative records and legislators' informal comments, and historical context,
among others. Courts are, correctly, loath to offer even preliminary relief before data sufficient to establish a case have
been assembled, particularly during the period shortly before an election. More prominent disputes--for example,
statewide redistricting battles--are likely to draw substantial governmental and private resources and expertise to help
prepare responsive litigation, but given finite resources, there is a greater risk that smaller jurisdictions like towns,
villages, constable districts, and school boards will be overlooked. And even in the larger jurisdictions, assembling
sufficient data to present a credible case takes significant time.
Changes to electoral policy several months before an election--much less those implemented on the eve of an
election--may not afford adequate opportunity to assemble a reasonably robust litigation response when the claim
involves racial vote dilution. There are, to be sure, a large number of disputes that head to the courts in the weeks before
an election, but these generally depend on questions of law rather than questions of fact. In contrast, when electoral
changes close to an election are discriminatory, the issue is entirely fact-based--and the election will often take place
before sufficient proof of the wrong can be assembled. The officials elected under the improper regime are then
empowered to make policy until the plaintiffs are able to prove harm and the courts order a remedial election--or, with
greater delay, a regularly scheduled future election under remedial procedures. Preclearance is designed to stop
problems before they have meaningful impact on local communities; responsive litigation is far more likely to fail this
test. These contextualized understandings of the limitations of litigation, and their consequences, are largely absent from
the simulacrum of section 5.
Case by case litigation is too slow and allows racists to simply change the
rules
David Tatel, Senior Circuit Judge, May 2012, US Court of Appeals,
http://www.cadc.uscourts.gov/internet/opinions.nsf/D79C82694E572B4D85257A02004EC903/$file/11-52561374370.pdf
The courts and Congress eventually responded. The Supreme Court struck down grandfather
clauses, Guinn v. United States, 238 U.S. 347 (1915), and white primaries, Smith v. Allwright,
321 U.S. 649 (1944). Congress “enact[ed] civil rights legislation in 1957, 1960, and 1964, which
sought to ‘facilitat[e] case-by-case litigation against voting discrimination.’ ” Shelby Cnty., 811
F. Supp. 2d at 430 (alteration in original) (quoting Katzenbach, 383 U.S. at 313). But Congress
soon determined that such measures were inadequate: case-by-case litigation, in addition to
being expensive, was slow—slow to come to a result and slow to respond once a state
switched from one discriminatory device to the next—and thus had “done little to cure the
problem of voting discrimination.” Determined to “rid the country of racial discrimination in
voting,” id. at 315, Congress passed the Voting Rights Act of 1965.¶ ’82 amendments made
bailout easier¶ ignificantly for the issue before us, the 1982 version of the Voting Rights Act made
bailout substantially more permissive. Prior to 1982, bailout was extremely limited: no
jurisdiction could bail out if it had used discriminatory voting tests or practices when it first
became subject to section 5, even if it had since eliminated those practices. By contrast, after
1982 the Act allowed bailout by any jurisdiction with a “clean” voting rights record over the
Planet Debate 2014
February PF Topic – Voting Rights Act
56
previous ten years. Id. The 1982 reauthorization also permitted a greater number of jurisdictions
to seek bailout. Previously, “only covered states (such as Alabama) or separately-covered
political subdivisions (such as individual North Carolina counties) were eligible to seek bailout.”
After 1982, political subdivisions within a covered state could bail out even if the state as a whole
was ineligible. Id.
Litigation strategies have always failed
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
Although the Fourteenth and Fifteenth Amendments have since 1870 guaranteed United States
citizens’ right to vote free of discrimination on the basis of race, “the blight of racial
discrimination in voting infected the electoral process in parts of our country for nearly a century”
thereafter. Beginning in 1890, some States—located mostly in the South— undertook a
systematic campaign to disenfranchise minority voters. After many decades of in- action,
Congress eventually responded, first by enacting the Civil Rights Act of 1957, Pub. L. No. 85315, 71 Stat. 634, which authorized the Attorney General to seek in- junctions against public and
private interference with voting on racial grounds. South Carolina, 383 U.S. at 313. When that
measure proved insufficient, Congress enacted the Civil Rights Act of 1960, Pub. L. No. 86-449,
74 Stat. 86, which expanded the Attorney General’s litigation power by authorizing him to join
States as party defendants, giving him access to local voting records, and empowering courts to
register voters in areas where there had been systematic discrimination. That legislative response
also proved insufficient, prompting Congress to enact Title I of the Civil Rights Act of 1964, Pub.
L. No. 88-352, 78 Stat. 241, which provided for expedited treatment of voting cases before threejudge courts and made illegal some of the tactics that had been used to disenfranchise AfricanAmericans in federal elections. South Carolina, 383 U.S. at 313.¶ With each legislative response,
Congress intended to further “facilitat[e] case-by-case litigation against voting discrimination.”
But each measure “proved ineffective for a number of reasons.” As this Court explained in South
Carolina, voting litigation is “unusually onerous to pre- pare” and is “exceedingly slow.” Ibid. In
addition, “some of the States affected” by litigation authorized by these congressional enactments
“merely switched to discriminatory devices not covered by” favorable federal decrees. Ibid.¶
Faced with the fact that a serious and invidiously discriminatory obstacle to the proper
functioning of our democracy had proved nearly impervious to traditional legislative remedies,
Congress enacted more aggressive and unusual measures as part of the Voting Rights Act of 1965
(VRA), 42 U.S.C. 1973 et seq. The purpose of the VRA, as this Court put it, was to “rid the
country of ra- cial discrimination in voting.” The VRA combined permanent enforcement
measures applicable nationwide with temporally and geographically limited measures applicable
to the areas in which Congress had found pervasive voting discrimination. Section 5 of the Act
applies to specified jurisdictions and prohibits such covered jurisdictions from adopting or
implementing any change in a “standard, practice, or procedure with respect to voting” without
first obtaining a preclearance determination from either the Attorney General of the United States
or the United States District Court for the District of Columbia. In order to obtain preclearance,
the jurisdiction must demonstrate that the pro- posed change does not have the purpose and will
not have the effect of discriminating on the basis of race. Ibid. Section 5 addressed the problems
Congress had identified with case-by-case adjudication by “prescrib- [ing] remedies” that “go
into effect without any need for prior adjudication.”
Litigation is too time and person hour intensive
Planet Debate 2014
February PF Topic – Voting Rights Act
57
Supreme Court Justice Ginsburg, 2013, (+ justices Breyer, Sotomayor, and Kagan, Shelby County v.
Holder, June 25,
http://www2.bloomberglaw.com/public/desktop/document/Shelby_Cnty_v_Holder_No_1296_2013_BL_1
67707_US_June_25_2013_Court)
Congress learned from experience that laws targeting particular electoral practices or enabling
case-by-case litigation were inadequate to the task. In the Civil Rights Acts of 1957, 1960, and
1964, Congress authorized and then expanded the power of "the Attorney General to seek
injunctions against public and private interference with the right to vote on racial grounds." But
circumstances reduced the ameliorative potential of these legislative Acts: "Voting suits are
unusually onerous to prepare, sometimes requiring as many as 6,000 man-hours spent combing
through registration records in preparation for trial. Litigation has been exceedingly slow, in part
because of the ample opportunities for delay afforded voting officials and others involved in the
proceedings. Even when favorable decisions have finally been obtained, some of the States
affected have merely switched to discriminatory devices not covered by the federal decrees or
have enacted difficult new tests designed to prolong the existing disparity between white and
Negro registration. Alternatively, certain local officials have defied and evaded court orders or
have simply closed their registration offices to freeze the voting rolls."
Individual litigation is too difficult
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.
Section 5 enforcement deters, Section 2 litigation is too costly
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. 264
Similar to the District Court, the D.C. Circuit reviewed the legislative record and found several categories of evidence
that supported reauthorizing Section 5 for another twenty-five years. The court found the Attorney General's claim "that
the existence of Section 5 deterred covered jurisdictions from even attempting to enact discriminatory voting changes"
to be very persuasive. The legislative record of the reauthorization demonstrated that, in comparison to Section 5's
straightforward preclearance power, Section 2 claims often involved costly and time-consuming litigation, which
dissuaded potential litigants from pursuing valid claims. The court emphasized that while a Section 2 action was
pending, a proponent of the challenged law could win election and enjoy the advantage of incumbency before the law
was overturned. Further, a plaintiff with few resources could not easily seek a preliminary injunction in such an instance
because of the heavy burden of proof required for preliminary injunctive relief.
Section 2 challenges expensive and time consuming
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.
Planet Debate 2014
February PF Topic – Voting Rights Act
58
Shelby County does not prevent plaintiffs from bringing legal challenges under Section 2 of the VRA, but such
challenges will be expensive and time-consuming. Under Section 4(b), anyone, including non-lawyers, could write to
the DOJ raising concerns over a voting law change. Under Section 2, attorneys must file lawsuits supported by
exhaustive political data, an uphill task for many. Not only is fighting these voting laws resource-intensive, but even
pressing legal issues like voting rights move slowly through the court system, and might not achieve resolution until
after the contested practice has survived an election. In contrast, the DOJ responded to voting law changes in covered
jurisdictions within 60 days of a challenge.
Planet Debate 2014
February PF Topic – Voting Rights Act
59
A2: Racism Has Decreased
Conditions have improved because of the Act, but there is still extensive
discrimination
Supreme Court Justice Ginsburg, 2013, (+ justices Breyer, Sotomayor, and Kagan, Shelby County v.
Holder, June 25,
http://www2.bloomberglaw.com/public/desktop/document/Shelby_Cnty_v_Holder_No_1296_2013_BL_1
67707_US_June_25_2013_Court)
I begin with the evidence on which Congress based its decision to continue the preclearance
remedy. The surest way to evaluate whether that remedy remains in order is to see if preclearance
is still effectively preventing discriminatory changes to voting laws. See City of Rome, 446 U. S.,
at 181 (identifying "information on the number and types of submissions made by covered
jurisdictions and the number and nature of objections interposed by the Attorney General" as a
primary basis for upholding the 1975 reauthorization). On that score, the record before Congress
was huge. In fact, Congress found there were more DOJ objections between 1982 [**682] and
2004 (626) than there were between 1965 and the 1982 reauthorization (490). 1 Voting Rights
Act: Evidence of Continued Need, Hearing before the Subcommittee on the Constitution of the
House Committee on the Judiciary, 109th Cong., 2d Sess., p. 172 (2006) (hereinafter Evidence of
Continued Need). All told, between 1982 and 2006, DOJ objections blocked over 700 voting
changes based on a determination that the changes were discriminatory. at 21. Congress found
that the majority of DOJ objections included findings of discriminatory intent, see 679 F. 3d, at
867, and that the changes blocked by preclearance were "calculated decisions to keep minority
voters from fully participating in the political process." On top of that, over the same time period
the DOJ and private plaintiffs succeeded in more than 100 actions to enforce the § 5 preclearance
requirements. In addition to blocking proposed voting changes through preclearance, DOJ may
request more information from a jurisdiction proposing a change. In turn, the jurisdiction may
modify or withdraw the proposed change. The number of such modifications or withdrawals
provides an indication of how many discriminatory proposals are deterred without need for
formal objection. Congress received evidence that more than 800 proposed changes were altered
or withdrawn since the last reauthorization in 1982. Congress also received empirical studies
finding that DOJ's requests for more information had a significant effect on the degree to which
covered jurisdictions "compl[ied] with their obligatio[n]" to protect minority voting rights.
Congress also received evidence that litigation under § 2 of the VRA was an inadequate substitute
for preclearance in the covered jurisdictions. Litigation occurs only after the fact, when the illegal
voting scheme has already been put in place and individuals have been elected pursuant to it,
thereby gaining the advantages of incumbency. 1 Evidence of Continued Need 97. An illegal
scheme might be in place for several election cycles before a § 2 plaintiff can gather sufficient
evidence to challenge it. 1 Voting Rights Act: Section 5 of the Act — History, Scope, and
Purpose: Hearing before the Subcommittee on the Constitution of the House Committee on the
Judiciary, 109th Cong., 1st Sess., p. 92 (2005) (hereinafter Section 5 Hearing). And litigation
places a heavy financial burden on minority voters. See id., at 84. Congress also received
evidence that preclearance lessened the litigation burden on covered jurisdictions themselves,
because the preclearance process is far less costly than defending against a § 2 claim, and
clearance by DOJ substantially reduces the likelihood that a § 2 claim will be mounted.
Reauthorizing the Voting Rights Act's Temporary Provisions: Policy Perspectives and Views
From the Field: Hearing before the Subcommittee on the Constitution, Civil Rights and Property
Planet Debate 2014
February PF Topic – Voting Rights Act
60
Rights of the Senate Committee on the Judiciary, 109th Cong., 2d Sess., pp. 13, 120-121 (2006).
See also Brief for States of New York, California, Mississippi, and North Carolina as Amid
Curiae 8-9 (Section 5 "reduc[es] the likelihood that a jurisdiction will face costly and protracted
Section 2 The number of discriminatory changes blocked or deterred by the preclearance
requirement suggests that the state of voting rights in the covered jurisdictions would have been
significantly different absent this remedy. Surveying the type of changes stopped by the
preclearance procedure conveys a sense of the extent to which § 5 continues to protect minority
voting rights. Set out below are characteristic examples of changes blocked in the years leading
up to the 2006 reauthorization:
• In 1995, Mississippi sought to reenact a dual voter registration system, "which was initially
enacted in 1892 to disenfranchise Black voters," and for that reason, was struck down by a federal
court in 1987.
• Following the 2000 census, the City of Albany, Georgia, proposed a restricting plan that DOJ
found to be "designed with the purpose to limit and retrogress the increased black voting strength
. . . in the city as a whole."
• In 2001, the mayor and all-white five-member Board of Aldermen of Kilmichael, Mississippi,
abruptly canceled the town's election after "an unprecedented number" of African-American
candidates announced they were running for office. DOJ required an election, and the town
elected its first black mayor and three black aldermen.
• In 2006, this Court found that Texas' attempt to redraw a congressional district to reduce the
strength of Latino voters bore "the mark of intentional discrimination that could give rise to an
equal protection violation," and ordered the district redrawn in compliance with the VRA. League
of United Latin American Citizens v. Perry, 548 U. S. 399, 440 (2006). In response, Texas sought
to undermine this Court's order by curtailing early voting in the district, but was blocked by an
action to enforce the § 5 preclearance requirement.
• In 2003, after African-Americans won a majority of the seats on the school board for the first
time in history, Charleston County, South Carolina, proposed an at-large voting mechanism for
the board. The proposal, made without consulting any of the African-American members of the
school board, was found to be an "`exact replica'" of an earlier voting scheme that, a federal court
had determined, violated the VRA.
• In 1993, the City of Millen, Georgia, proposed to delay the election in a majority-black district
by two years, leaving that district without representation on the city council while the neighboring
majority white district would have three representatives. DOJ blocked the proposal. The county
then sought to move a polling place from a predominantly black neighborhood in the city to an
inaccessible location in a predominantly white neighborhood outside city limits. Id., at 816.
• In 2004, Waller County, Texas, threatened to prose cute two black students after they
announced their intention to run for office. The county then at tempted to reduce the availability
of early voting in that election at polling places near a historically black university.
• In 1990, Dallas County, Alabama, whose county seat is the City of Selma, sought to purge its
voter rolls of many black voters. DOJ rejected the purge as discriminatory, noting that it would
have disqualified many citizens from voting "simply because they failed to pick up or return a
voter update form, when there was no valid requirement that they do so."
These examples, and scores more like them, fill the pages of the legislative record. The evidence
was indeed sufficient to support Congress' conclusion that "racial discrimination in voting in
covered jurisdictions [remained] serious and pervasive."
Congress further received evidence indicating that formal requests of the kind set out above
represented only the tip of the iceberg. There was what one commentator described as an
Planet Debate 2014
February PF Topic – Voting Rights Act
61
"avalanche of case studies of voting rights violations in the covered jurisdictions," ranging from
"outright intimidation and violence against minority voters" to "more subtle forms of voting
rights deprivations." This evidence gave Congress ever more reason to conclude that the time had
not yet come for relaxed vigilance against the scourge of race discrimination in voting.
True, conditions in the South have impressively improved since passage of the Voting Rights Act.
Congress noted this improvement and found that the VRA was the driving force behind it. 2006
Reauthorization § 2(b)(1). But Congress also found that voting discrimination had evolved into
subtler second-generation barriers, and that eliminating preclearance would risk loss of the gains
that had been made. §§ 2(b)(2), (9). Concerns of this order, the Court previously found, gave
Congress adequate cause to reauthorize the VRA. City of Rome, 446 U. S., at 180-182
(congressional reauthorization of the preclearance requirement was justified based on "the
number and nature of objections interposed by the Attorney General" since the prior
reauthorization; extension was "necessary to preserve the limited and fragile achievements of the
Act and to promote further amelioration of voting discrimination") (internal quotation marks
omitted). Facing such evidence then, the Court expressly rejected the argument that disparities in
voter turnout and number of elected officials were the only metrics capable of justifying
reauthorization of the VRA. Ibid.
VRA has supported progress, but discrimination remains
Supreme Court Justice Ginsburg, 2013, (+ justices Breyer, Sotomayor, and Kagan, Shelby County v.
Holder, June 25,
http://www2.bloomberglaw.com/public/desktop/document/Shelby_Cnty_v_Holder_No_1296_2013_BL_1
67707_US_June_25_2013_Court)
After considering the full legislative record, Congress made the following findings: The VRA has
directly caused significant progress in eliminating first-generation barriers to ballot access,
leading to a marked increase in minority voter registration and turnout and the number of
minority elected officials. But despite this progress, "second generation barriers constructed to
prevent minority voters from fully participating in the electoral process" continued to exist, as
well as racially polarized voting in the covered jurisdictions, which increased the political
vulnerability of racial and language minorities in those jurisdictions. Extensive "[e]vidence of
continued discrimination," Congress concluded, "clearly show[ed] the continued need for Federal
oversight" in covered jurisdictions. The overall record demonstrated to the federal lawmakers
that, "without the continuation of the Voting Rights Act of 1965 protections, racial and language
minority citizens will be deprived of the opportunity to exercise their right to vote, or will have
their votes diluted, undermining the significant gains made by minorities in the last 40 years.".
Based on these findings, Congress reauthorized pre-clearance for another 25 years, while also
undertaking to reconsider the extension after 15 years to ensure that the provision was still
necessary and effective. The question before the Court is whether Congress had the authority
under the Constitution to act as it did.
Planet Debate 2014
February PF Topic – Voting Rights Act
62
A2: No Current Discrimination
District court found extensive evidence of continued racism
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-andproportionality 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, statesponsored 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 discrimination 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
Planet Debate 2014
February PF Topic – Voting Rights Act
63
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.” See id. at 19a-22a.¶ The court first addressed whether Section 5’s bur- dens 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 dis- criminate
against minority voters and were “well known” to Congress in 1965 and in 2006.
Evidence shows the discrimination is current
David Tatel, Senior Circuit Judge, May 2012, US Court of Appeals,
http://www.cadc.uscourts.gov/internet/opinions.nsf/D79C82694E572B4D85257A02004EC903/$file/11-52561374370.pdf
As to section 4(b), the district court acknowledged that the legislative record “primarily focused
on the persistence of voting discrimination in covered jurisdictions—rather than on the
comparative levels of voting discrimination in covered and non-covered jurisdictions.”
Nonetheless, the district court pointed to “several significant pieces of evidence suggesting that
the 21st century problem of voting discrimination remains more prevalent in those jurisdictions
that have historically been subject to the preclearance requirement”—including the
disproportionate number of successful section 2 suits in covered jurisdictions and the “continued
prevalence of voting discrimination in covered jurisdictions notwithstanding the considerable
deterrent effect of Section 5.” Thus, although observing that Congress’s reauthorization “ensured
that Section 4(b) would continue to focus on those jurisdictions with the worst historical records
of voting discrimination,” id. at 506, the district court found this continued focus justified by
current¶ vidence that discrimination remained concentrated in those juridictions. See id.
(explaining that Congress did not renew the coverage formula to punish past sins, but rather
because it found “substantial evidence of contemporary voting discrimination by the very same
jurisdictions that had histories of unconstitutional conduct”). Finally, the district court
Planet Debate 2014
February PF Topic – Voting Rights Act
64
emphasized that Congress had based reauthorization not on “a perfunctory review of a few
isolated examples of voting discrimination by covered jurisdictions,” but had “ ‘approached its
task seriously and with great care.’ ” Id. at 496 (quoting Nw. Austin, 573 F. Supp. 2d at 265).
Given this, the district court concluded that Congress’s predictive judgment about the continued
need for section 5 in covered jurisdictions was due “substantial deference,” id. at 498 (internal
quotation marks omitted), and therefore “decline[d] to overturn Congress’s carefully considered
judgment,” id. at 508. Our review is de novo. See McGrath v. Clinton, 666 F.3d 1377, 1379 (D.C.
Cir. 2012) (“We review the district court’s decision to grant summary judgment de novo.”).
Despite progress, substantial problems remain
David Tatel, Senior Circuit Judge, May 2012, US Court of Appeals,
http://www.cadc.uscourts.gov/internet/opinions.nsf/D79C82694E572B4D85257A02004EC903/$file/11-52561374370.pdf
Guided by these principles, we begin with Northwest Austin’s first question: Are the current
burdens imposed by section 5 “justified by current needs”? The Supreme Court raised this
question because, as it emphasized and as Shelby County argues, the conditions which led to the
passage of the Voting Rights Act “have unquestionably improved[,] . . . no doubt due in
significant part to the Voting Rights Act itself.” Congress also recognized this progress when it
reauthorized the Act, finding that “many of the first generation barriers to minority voter
registration and voter turnout that were in place prior to the [Voting Rights Act] have been
eliminated.” The dissent’s charts nicely display this progress. Racial disparities in voter
registration and turnout have “narrowed considerably” in covered jurisdictions and are now
largely comparable to disparities nationwide. Id. at 12–17; see also Dissenting Op. at 12–13 figs.I
& II. Increased minority voting, in turn, has “resulted in significant increases in the number of
African-Americans serving in elected offices.” H.R. Rep. No. 109-478, at 18; see also Dissenting
Op. at 15 fig. III. For example, in the six states fully covered by the 1965 Act, the number of
African Americans serving in elected office increased from 345 to 3700 in the decades since
1965. H.R. Rep. No. 109-478, at 18.¶ But Congress found that this progress did not tell the whole
story. It documented “continued registration and turnout disparities” in both Virginia and South
Carolina. Virginia, in particular, “remain[ed] an outlier,” S. Rep.¶ No. 109-295, at 11 (2006):
although 71.6 percent of white, non-Hispanic voting age residents registered to vote in 2004, only
57.4 percent of black voting age residents registered, a 14.2-point difference. U.S. Census
Bureau, Reported Voting and Registration of the Total Voting-Age Population, at tbl.4a, available
at http://www.census.gov/hhes/www/ socdemo/voting/publications/p20/2004/tables.html (last
visited May 9, 2012). Also, although the number of African Americans holding elected office had
increased significantly, they continued to face barriers to election for statewide positions.
Congress found that not one African American had yet been elected to statewide office in
Mississippi, Louisiana, or South Carolina. In other covered states, “ ‘often it is only after blacks
have been first appointed to a vacancy that they are able to win statewide office as incumbents.’ ”
H.R. Rep. No. 109-478, at 33 (quoting Nat’l Comm’n on the Voting Rights Act, Protecting
Minority Voters: The Voting Rights Act at Work 1982–2005, at 38 (2006) (“Nat’l Comm’n
Report”)).¶ Congress considered other types of evidence that, in its judgment, “show[ed] that
attempts to discriminate persist and evolve, such that Section 5 is still needed to protect minority
voters in the future.” Id. at 21. It heard accounts of specific instances of racial discrimination in
voting. It heard analysis and opinions by experts on all sides of the issue. It considered, among
other things, six distinct categories of evidence: (1) Attorney General objections issued to block
proposed voting changes that would, in the Attorney General’s judgment, have the purpose or
effect of discriminating against minorities; (2) “more information requests” issued when the
Attorney General believes that the information submitted by a covered jurisdiction is insufficient
Planet Debate 2014
February PF Topic – Voting Rights Act
65
to allow a preclearance determination; (3) successful lawsuits¶ brought under section 2 of the Act;
(4) federal observers dispatched to monitor elections under section 8 of the Act; (5) successful
section 5 enforcement actions filed against covered jurisdictions for failing to submit voting
changes for preclearance, as well as requests for preclearance denied by the United States District
Court for the District of Columbia; and (6) evidence that the mere existence of section 5 deters
officials from even proposing discriminatory voting changes. Finally, Congress heard evidence
that case-by-case section 2 litigation was inadequate to remedy the racial discrimination in voting
that persisted in covered jurisdictions.
Many categories of evidence prove there is remaining discrimination
David Tatel, Senior Circuit Judge, May 2012, US Court of Appeals,
http://www.cadc.uscourts.gov/internet/opinions.nsf/D79C82694E572B4D85257A02004EC903/$file/11-52561374370.pdf
In addition to these examples of flagrant racial discrimination, several categories of evidence in
the record support Congress’s conclusion that intentional racial discrimination in voting remains
so serious and widespread in covered jurisdictions that section 5 preclearance is still needed. We
explore each in turn. First, Congress documented hundreds of instances in which the Attorney
General, acting pursuant to section 5, objected to proposed voting changes that he found would
have a discriminatory purpose or effect. Significantly, Congress found that the absolute number
of objections has not declined since the 1982 reauthorization: the Attorney General interposed at
least 626 objections during the twenty- two years from 1982 to 2004 (an average of 28.5 each
year), compared to 490 interposed during the seventeen years from 1965 to 1982 (an average of
28.8 each year). Formal objections were not the only way the Attorney General blocked
potentially discriminatory changes under section 5. Congress found that between 1990 and 2005,
“more information requests” (MIRs) prompted covered jurisdictions to withdraw or modify over
800 proposed voting changes. Although MIRs take no position on the merits of a preclearance
request, Congress had evidence indicating that the Attorney General sometimes uses them to
“send signals to a submitting jurisdiction about the assessment of their proposed voting change”
and to “promot[e] compliance by covered jurisdictions.” Congress found that because “[t]he
actions taken by a jurisdiction [in response to an MIR] are often illustrative of [its] motives,” the
high number of withdrawals and modifications made in response to MIRs constitutes additional
evidence of “[e]fforts to discriminate over the past 25 years.”
Preclearance lawsuits provide evidence of continued discrimination
David Tatel, Senior Circuit Judge, May 2012, US Court of Appeals,
http://www.cadc.uscourts.gov/internet/opinions.nsf/D79C82694E572B4D85257A02004EC903/$file/11-52561374370.pdf
Fourth, Congress found evidence of continued discrimination in two types of preclearance-related
lawsuits. Examining the first of these—actions brought to enforce section 5’s preclearance
requirement—Congress noted that “many defiant covered jurisdictions and State and local
officials continue to enact and enforce changes to voting procedures without the Federal
Government’s knowledge.” Between 1982 and 2004, at least 105 successful section 5
enforcement actions were brought against such jurisdictions. Evidence of Continued Need 250.
Shelby County believes that successful section 5 enforcement actions are “not reliable evidence
of intentional voting discrimination” because “[t]he most that a section 5 enforcement action can
establish . . . is that a voting change— and quite possibly a nondiscriminatory voting change—
was not properly submitted for preclearance.” Appellant’s Br.. But the legislative record does
Planet Debate 2014
February PF Topic – Voting Rights Act
66
contain evidence that at least some of the 105 successful section 5 enforcement suits were
initiated in response to attempts by covered jurisdictions to implement purposefully
discriminatory laws without federal oversight. See Shelby Cnty., 811 F. Supp. 2d at 480
(describing section 5 actions against Mississippi and Waller County, Texas, “in which the
unprecleared voting changes appeared to have been motivated by discriminatory animus”);
Evidence of Continued Need 176 (explaining that after a section 5 enforcement suit forced
Mississippi to submit its dual registration law for preclearance, the Attorney General objected
based on the law’s racially discriminatory purpose and effect). Therefore, Congress could
reasonably have concluded that such cases, even if few in number, provide at least some evidence
of continued willingness to evade the Fifteenth Amendment’s protections, for they reveal
continued efforts by recalcitrant jurisdictions not only to enact discriminatory voting changes, but
to do so in defiance of section 5’s preclearance requirement. In addition to section 5 enforcement
suits, Congress found evidence of continued discrimination in “the number of requests for
declaratory judgments [for preclearance] denied by the United States District Court for the
District of Columbia.” The number of unsuccessful judicial preclearance actions appears to have
remained roughly constant since 1966: twenty-five requests were denied or withdrawn between
1982 and 2004, compared to seventeen between 1966 and 1982. Shelby County does not contest
the relevance of this evidence. Finally, and bolstering its conclusion that section 5 remains
necessary, Congress “f[ound] that the existence of Section 5 deterred covered jurisdictions from
even attempting to enact discriminatory voting changes.” In Congress’s view, “Section 5’s strong
deterrent effect” and “the number of voting changes that have never gone forward as a result of
[that effect]” are “[a]s important as the number of objections that have been interposed to protect
minority voters against discriminatory changes” that had actually been proposed. Id. As Congress
explained, “ ‘[o]nce officials in covered jurisdictions become aware of the logic of preclearance,
they tend to understand that submitting discriminatory changes is a waste of taxpayer time and
money and interferes with their own timetables, because the chances are good that an objection
will result.’ ” Id. (quoting Nat’l Comm’n Report 57). For this reason, the mere existence of
section 5 “ ‘encourage[s] the legislature to ensure that any voting changes would not have a
discriminatory effect on minority voters, and that it would not become embroiled in the
preclearance process.’” Id. (quoting Laughlin McDonald, The Case for Extending and Amending
the Voting Rights Act: Voting Rights Litigation, 1982–2006: A Report of the Voting Rights
Project of the American Civil Liberties Union 15 (2006)). Congress considered testimony that
section 5 has had just this effect on state and local redistricting processes. See H.R. Rep. No. 109478, at 24 (describing section 5’s “critical” influence on the Georgia legislature’s redistricting
process, which culminated in a plan that was precleared with no objection by the Attorney
General (internal quotation marks omitted)); Evidence of Continued Need 362–63 (explaining
how concerns about obtaining preclearance prevented Fredericksburg, Virginia, from eliminating
an African American majority district). In other words, Congress had “some reason to believe that
without [section 5’s] deterrent effect on potential misconduct,” the evidence of continued
discrimination in covered jurisdictions “might be considerably worse.” S. Rep. No. 109-295, at
11. Shelby County argues that Congress’s finding of deterrence reflects “‘outdated assumptions
about racial attitudes in the covered jurisdictions’ ” that we should not “indulge[].” Appellant’s
Br. 38 (quoting Nw. Austin, 129 S. Ct. at 2525 (Thomas, J., concurring in judgment in part and
dissenting in part)). We agree that evaluating section 5’s deterrent effect raises sensitive and
difficult issues. As the dissent rightly points out, the claimed effect is hard to measure empirically
and even harder to consider judicially. We also agree with the dissent that section 5 could not
stand based on claims of deterrence alone, nor could deterrence be used in some hypothetical case
to justify renewal “to the crack of doom,” id. But the difficulty of quantifying the statute’s
deterrent effect is no reason to summarily reject Congress’s finding that the evidence of racial
discrimination in voting would look worse without section 5—a finding that flows from record
Planet Debate 2014
February PF Topic – Voting Rights Act
67
evidence unchallenged by the dissent. As explained above, Congress’s deterrent effect finding
rests on evidence of current and widespread voting discrimination, as well as on testimony
indicating that section 5’s mere existence prompts state and local legislators to conform their
conduct to the law. And Congress’s finding—that is, a finding about how the world would have
looked absent section 5—rests on precisely the type of fact-based, predictive judgment that courts
are ill- equipped to second guess. See Turner Broad., 520 U.S. at 195 (“In reviewing the
constitutionality of a statute, courts must accord substantial deference to the predictive judgments
of Congress.” (internal quotation marks omitted)).
Intentional discrimination remains and case by case enforcement won’t solve
David Tatel, Senior Circuit Judge, May 2012, US Court of Appeals,
http://www.cadc.uscourts.gov/internet/opinions.nsf/D79C82694E572B4D85257A02004EC903/$file/11-52561374370.pdf
Congress found that serious and widespread intentional discrimination persisted in covered
jurisdictions and that “case-by-case enforcement alone . . . would leave minority citizens with
[an] inadequate remedy.” In reaching this conclusion, Congress considered evidence that section
2 claims involve “intensely complex litigation that is both costly and time-consuming.” Modern
Enforcement 96; see also Introduction to the Expiring Provisions 141 (describing a Federal
Judicial Center study finding that voting rights cases require nearly four times more work than an
average district court case and rank as the fifth most work-intensive of the sixty-three types of
cases analyzed); City of Boerne, 521 U.S at 526 (noting the “slow costly character of case-bycase litigation” under section 2). It heard from witnesses who explained that “it is incredibly
difficult for minority voters to pull together the resources needed” to pursue a section 2 lawsuit,
particularly at the local level and in rural communities. Modern Enforcement 96; see also
History, Scope, and Purpose 84 (explaining that voters “in local communities and particularly in
rural areas . . . do not have access to the means to bring litigation under Section 2”). Such
testimony is particularly significant given that the vast majority of section 5 objections (92.5
percent from 2000 to 2005) pertained to local voting changes. See Michael J. Pitts, Let’s Not Call
the Whole Thing Off Just Yet: A Response to Samuel Issacharoff’s Suggestion to Scuttle Section 5
of the Voting Rights Act, 84 Neb. L. Rev. 605, 612–13 (2005); see also id. at 616 (“[S]ection 2
cases are much less likely to be filed when it comes to redistricting in smaller jurisdictions[.]”).
Congress also heard testimony that during the time it takes to litigate a section 2 action—often
several years—proponents of a discriminatory law may enjoy its benefits, potentially winning
elections and gaining the advantage of incumbency before the law is overturned. Impact and
Effectiveness 43–44. Given all of this, and given the magnitude and persistence of discrimination
in covered jurisdictions, Congress concluded that case-by-case litigation—slow, costly, and
lacking section 5’s prophylactic effect—“would be ineffective to protect the rights of minority
voters.”
The past is never entirely erased
Joseph Fishkin is an Assistant Professor, University of Texas School of Law, June 8, 2013, Yale Law Journal Online,
The Dignity of the South, http://yalelawjournal.org/2013/06/08/fishkin.html.
It seems that Judge Williams's expectation is that history would not predict present discrimination--that is, his
expectation is that the geographic distribution of voting rights violations today would likely not match the old contours
of the Confederate or Jim Crow South. That is why he analogizes the congressional trigger formula to a dart-thrower
"throwing a dart backwards over his shoulder." But is that really what is going on? Perhaps a better analogy, instead of
throwing darts, would be that we are searching for an old house that used to be in a certain neighborhood. We discover
that despite many renovations and transformations, the house is still there, in the same location where it always was.
Planet Debate 2014
February PF Topic – Voting Rights Act
68
Perhaps this is unexpected, but it is surely not a shock. History shifts, and memory changes, but rarely, if ever, is the
past entirely erased. As William Faulkner, the great novelist of the South who spent a lifetime exploring this theme,
famously wrote: "The past is never dead. It's not even past."
Racial discrimination still widespread in the US
Joe Mitchell, JD, 2013, Washington University Journal of Law & Policy, Note: Breaking Out of the
Mold: Minority-Majority Districts and the Sustenance of White Privilege, p. 235-6
Racial discrimination remains a major problem in the United States. Despite the end of slavery after the Civil War, the
temporary establishment of inclusive Southern political systems during Reconstruction, and the Civil Rights Movement
of the 1960s, huge economic and political disparities remain between racial groups within the United States. The
election of Barack Obama suggests that the United States' racial climate has improved, but incarceration, education, and
employment data all suggest that much more change is needed. n4 In order to bring about the improvement that is so
plainly needed, political action must be taken. In order for these political steps to take place, the voting public must first
elect candidates who will support policies desired by minority communities. n
Planet Debate 2014
February PF Topic – Voting Rights Act
69
Examples of Racist Voting Practices
Many examples and instances of modern electoral racism
David Tatel, Senior Circuit Judge, May 2012, US Court of Appeals,
http://www.cadc.uscourts.gov/internet/opinions.nsf/D79C82694E572B4D85257A02004EC903/$file/11-52561374370.pdf
Having resolved these threshold issues, we return to the basic question: Does the legislative
record contain sufficient probative evidence from which Congress could reasonably conclude that
racial discrimination in voting in covered jurisdictions is so serious and pervasive that section 2
litigation remains an inadequate remedy? Reviewing the record ourselves and focusing on the
evidence most probative of ongoing constitutional violations, we believe it does.
To begin with, the record contains numerous “examples of modern instances” of racial
discrimination in voting, City of Boerne, 521 U.S. at 530. Just a few recent examples:
• Kilmichael, Mississippi’s abrupt 2001 decision to cancel an election when “an unprecedented
number” of African Americans ran for office, H.R. Rep. No. 109- 478, at 36–37 (internal
quotation marks omitted);
• Webster County, Georgia’s 1998 proposal to reduce the black population in three of the
education board’s five single-member districts after the school district elected a majority
black school board for the first time, Voting Rights Act: Section 5 of the Act—History,
Scope, and Purpose: Hearing Before Subcomm. on the Constitution of the House
Judiciary Comm., 109th Cong. 830–31 (2006) (“History, Scope, and Purpose”);
• Mississippi’s 1995 attempt to evade preclearance and revive a dual registration system
“initially enacted in 1892 to disenfranchise Black voters” and previously struck down by
a federal court, H.R. Rep. No. 109-478, at 39;
• Washington Parish, Louisiana’s 1993 attempt to reduce the impact of a majority-African
American district by “immediately creat[ing] a new at-large seat to ensure that no white
incumbent would lose his seat,” id. at 38;
• Waller County, Texas’s 2004 attempt to reduce early voting at polling places near a historically
black university and its threats to prosecute students for “illegal voting,” after two black
students announced their intent to run for office, Evidence of Continued Need 185–86.
The legislative record also contains examples of overt hostility to black voting power
by those who control the electoral process. In Mississippi, for instance, state legislators
opposed an early 1990s redistricting plan that would have increased the number of black
majority districts, referring to the plan publicly as the “black plan” and privately as the
“nigger plan,” Modern Enforcement of the Voting Rights Act: Hearing Before the S.
Comm. on the Judiciary, 109th Cong. 22 (2006) (“Modern Enforcement”) (internal
quotation marks omitted); see also S. Rep. No. 109-295, at 14. In Georgia, the state
House Reapportionment Committee Chairman “told his colleagues on numerous
occasions, ‘I don’t want to draw nigger districts,’ ” H.R. Rep. No. 109-478, at 67
(quoting Busbee v. Smith, 549 F. Supp. 495, 501 (D.D.C. 1982)). The district court
Planet Debate 2014
February PF Topic – Voting Rights Act
70
pointed to numerous additional examples of intentional discrimination in the legislative
record.
Examples of modern day voting discrimination practices
Supreme Court Justice Ginsburg, 2013, (+ justices Breyer, Sotomayor, and Kagan, Shelby
County v. Holder, June 25,
http://www2.bloomberglaw.com/public/desktop/document/Shelby_Cnty_v_Holder_No_1296_201
3_BL_167707_US_June_25_2013_Court)
Second-generation barriers come in various forms. One of the blockages is racial
gerrymandering, the redrawing of legislative districts in an "effort to segregate the races
for purposes of voting." Another is adoption of a system of at-large voting in lieu of
district-by-district voting in a city with a sizable black minority. By switching to at-large
voting, the overall majority could control the election of each city council member,
effectively eliminating the potency of the minority's votes. Grofman & Davidson, The
Effect of Municipal Election Structure on Black Representation in Eight Southern States,
in Quiet Revolution in the South 301, 319 (C. Davidson & B. Grofman eds. 1994)
(hereinafter Quiet Revolution). A similar effect could be achieved if the city engaged in
discriminatory annexation by incorporating majority-white areas into city limits, thereby
decreasing the effect of VRA-occasioned increases in black voting. Whatever the device
employed, this Court has long recognized that vote dilution, when adopted with a
discriminatory purpose, cuts down the right to vote as certainly as denial of access to the
ballot. Shaw, 509 U. S., at 640-641; Allen v. State Bd. of Elections, 393 U. S. 544, 569
(1969); Reynolds v. Sims, 377 U. S. 533, 555 (1964). See also H. R. Rep. No. 109-478,
p. 6 (2006) (although "[d]iscrimination today is more subtle than the visible methods
used in 1965," "the effect and results are the same, namely a diminishing of the minority
community's ability to fully participate in the electoral process and to elect their preferred
candidates").
Serious, widespread, and intentional discrimination exists in the
preclearance areas
Supreme Court Justice Ginsburg, 2013, (+ justices Breyer, Sotomayor, and Kagan, Shelby
County v. Holder, June 25,
http://www2.bloomberglaw.com/public/desktop/document/Shelby_Cnty_v_Holder_No_1296_201
3_BL_167707_US_June_25_2013_Court)
In the long course of the legislative process, Congress "amassed a sizable record."
Northwest Austin Municipal Util. Dist. No. One v. Holder, 557 U. S. 193, 205 (2009).
See also 679 F. 3d 848, 865-873 (CADC 2012) (describing the "extensive record"
supporting Congress' determination that "serious and widespread intentional
discrimination persisted in covered jurisdictions"). The House and Senate Judiciary
Committees held 21 hearings, heard from scores of witnesses, received a number of
investigative reports and other written documentation of continuing discrimination in
covered jurisdictions. In all, the legislative record Congress compiled filled more than
15,000 pages. The compilation presents countless "examples of flagrant racial
discrimination" since the last reauthorization; Congress also brought to light systematic
Planet Debate 2014
February PF Topic – Voting Rights Act
evidence that "intentional racial discrimination in voting remains so serious and
widespread in covered jurisdictions that section 5 preclearance is still needed
71
Planet Debate 2014
February PF Topic – Voting Rights Act
72
A2: No Pervasive Discrimination
Racism still exists and it doesn’t have to be widespread in order to justify
Section 5 enforcement
Ellen D. Katz, law professor, University of Michigan, South Carolina's "Evolutionary Process", 113 COLUM. L. REV.
SIDEBAR 55 (2013), http://www.columbialawreview.org/wp-content/uploads/2013/03/55_Katz.pdf, p. 63
Insofar as this confidence was warranted--and it does not facially appear misplaced--some will see it as evidence
that the section 5 regime has outlasted its purpose. After all, if public officials in covered jurisdictions are "responsible"
in the sense that they are trustworthy, is Congress empowered to subject them to the federal oversight the VRA
mandates?
The answer is yes, or at least it should be, and that answer need not deny the fact that the categorical mistrust long
directed at public officials in covered jurisdictions is less justified today than it once was. Undeniably, there are public
officials today who act in good faith on matters of race in places where Jim Crow once ruled. Their existence, however,
does not mean that section 5 is obsolete or that Congress erred in concluding the statute continues to do important work.
The reason lies in the nature of contemporary racial discrimination and the ways in which section 5 operates to
address it. Bad actors persist, and section 5 operates as a direct restraint on them. Still, racial discrimination, including
the sort proscribed by the Constitution, does not require malice on the part of every public actor connected with a given
policy or even malice from most of them. Electoral rules are typically devised and enforced by many different public
actors, such that even seemingly innocuous policies provide space in which both overt discrimination and implicit
biases may generate substantial obstacles to minority political participation.
The South Carolina voter ID dispute highlights both this phenomenon and the way in which the section 5 regime
responds effectively to it. Evidence presented at trial suggested invidious intent on the part of at least some supporters
of the new voter ID measure, while uncertainty about the "reasonable impediment" provision, as originally crafted, left
room for inconsistent and biased implementation. That risk, moreover, was compounded by uncontested evidence
showing minority voters were far more likely to lack DMV-issued photo ID than white voters.
Racial polarization is not racist voting
Stephen Ansolabehere is Professor of Government at Harvard University; Nathaniel Persily is the Charles
Keller Beekman Professor of Law and Political Science at Columbia Law School; and Charles Stewart III
is the Kenan Sahin Distinguished Professor of Political Science at the Massachusetts Institute of
Technology, 2013, REGIONAL DIFFERENCES IN RACIAL POLARIZATION IN THE 2012
PRESIDENTIAL ELECTION: IMPLICATIONS FOR THE CONSTITUTIONALITY OF SECTION 5 OF
THE VOTING RIGHTS ACT, Harvard Law Review Forum, 126 Harv. L. Rev. F. 205,
A. Racial Polarization, 1984-2008
Racially polarized voting is a term of art in voting rights law. It refers not to racist voting but to a high correlation
between vote choice and race. As Justice Brennan's opinion in Thornburg v. Gingles n11 explained:
[T]he legal concept of racially polarized voting incorporates neither causation nor intent. It means simply
that the race of voters correlates with the selection of a certain candidate . . .; that is, it refers to the
situation where different races (or minority language groups) vote in blocs for different candidates.
2008 election racially polarized
Stephen Ansolabehere is Professor of Government at Harvard University; Nathaniel Persily is the Charles Keller
Beekman Professor of Law and Political Science at Columbia Law School; and Charles Stewart III is the Kenan Sahin
Distinguished Professor of Political Science at the Massachusetts Institute of Technology, 2013, REGIONAL
DIFFERENCES IN RACIAL POLARIZATION IN THE 2012 PRESIDENTIAL ELECTION: IMPLICATIONS FOR
THE CONSTITUTIONALITY OF SECTION 5 OF THE VOTING RIGHTS ACT, Harvard Law Review Forum, 126
Planet Debate 2014
February PF Topic – Voting Rights Act
73
Harv. L. Rev. F. 205, p. 213-4
As compared to the twenty-year trend that preceded it, racial polarization increased in the 2008 presidential
election. In both the covered and noncovered states, Barack Obama received a large, above-average share of the
minority vote, such that the white-black and white-Latino gap increased. However, in the covered states, his voteshare
among whites dropped two points from the historical average (tying the figure in 2004, we should note). In contrast, in
the noncovered states, he increased his white voteshare by six percentage points.
The 2008 election highlights how racial polarization -- the difference between the minority voteshare and white
voteshare received by the minority-preferred candidate -- can increase either through a decline in the white voteshare
received by the candidate or through an increase in the minority voteshare received (or both). In the noncovered states,
Barack Obama increased his voteshare among whites and minorities. In the noncovered states his share of the white
vote was below average for a Democrat, while his share of the minority vote was well above average, especially among
African Americans.
Table 2 compares Obama's voteshare by race with that of John Kerry's losing effort four years earlier. The exit
polls illustrate that the jump in white support he received was mainly due to increases in the noncovered areas -- the big
exception being Virginia where he received eight points more of the white voteshare than did Kerry. However, in
several covered states, white support for Obama dropped dramatically from four years earlier. In Alabama, Mississippi,
and Louisiana, for example, Obama received only 10%, 11%, and 14% of the white vote respectively, which was nine,
three, and ten percentage points less than Kerry received from whites in that state. Despite very favorable conditions for
the "out-party" candidate in 2008, Obama did not improve on Kerry's average performance among whites in the covered
states and dropped significantly in several of them.
Racial polarization in elections is increasing
Stephen Ansolabehere is Professor of Government at Harvard University; Nathaniel Persily is the Charles Keller
Beekman Professor of Law and Political Science at Columbia Law School; and Charles Stewart III is the Kenan Sahin
Distinguished Professor of Political Science at the Massachusetts Institute of Technology, 2013, REGIONAL
DIFFERENCES IN RACIAL POLARIZATION IN THE 2012 PRESIDENTIAL ELECTION: IMPLICATIONS FOR
THE CONSTITUTIONALITY OF SECTION 5 OF THE VOTING RIGHTS ACT, Harvard Law Review Forum, 126
Harv. L. Rev. F. 205, p. 214-5
C. Racial Polarization in Presidential Elections, 2000-2012
We can further demonstrate the shifts in rates of racial polarization by analyzing the actual election returns by
county and comparing them to each county's demographic makeup. This method is critical in comparing 2012 with
previous years, because the national exit poll was not taken in all states in 2012. In particular, only four of the covered
states (Arizona, Floria, Mississippi, and Virginia) were in the 2012 exit poll sample. In order to encompass all of the
covered states, we analyze the aggregate election results, rather than the exit polls.
We can display the regressions as both a table and a graph. The three key features of the regression line are (1) the
Y-intercept or constant, which indicates the likely white support for the Democratic nominee; (2) the steepness or slope
of the line, which reveals how closely related the racial composition of a district is to voteshare won by the Democratic
nominee (a forty-five-degree line would suggest that each one-percent increase in the black plus Hispanic share of the
county's population translates into one-percent vote for the Democratic candidate); and (3) the fit or R-squared value,
which indicates how good the regression line fits the data (that is, how close are the various data points to the line and
therefore how easy it is to predict the Democratic voteshare when knowing only the minority population share of the
county). Each measure is helpful in assessing racial polarization and comparing polarization between the covered and
noncovered counties.
As is clear from Figure B and Table 3, racial polarization according to all three statistics has been increasing in the
covered jurisdictions over the last twelve years. The Y-intercept (or constant) has gone lower each year: from 0.247 in
2000 to 0.198 in 2012, suggesting average white support in the covered counties has dropped from roughly 25% to just
under 20%. The same cannot be said for white support in the noncovered jurisdictions, which has hovered around 41%
for the period, with the exception of 2008 where Obama won about 45% of the white vote (on average) in the
noncovered counties. Consistent with the fact that Obama won a higher share of the minority vote, the slope (or
steepness of the regression line) and R-squared have increased considerably in the two Obama elections as compared to
Planet Debate 2014
February PF Topic – Voting Rights Act
74
their predecessors, and the differences remain great between the covered and noncovered jurisdictions. This suggests
that racial composition is not only a better predictor of voteshare in the covered counties than the noncovered counties,
but that it is becoming an increasingly better predictor of voteshare over time. In other words, if all one knew was the
racial composition of a county, one can more accurately predict the voteshare of Obama in 2012 than for any candidate
in the previous three elections.
Race plays a large role in voting
Stephen Ansolabehere is Professor of Government at Harvard University; Nathaniel Persily is the Charles Keller
Beekman Professor of Law and Political Science at Columbia Law School; and Charles Stewart III is the Kenan Sahin
Distinguished Professor of Political Science at the Massachusetts Institute of Technology, 2013, REGIONAL
DIFFERENCES IN RACIAL POLARIZATION IN THE 2012 PRESIDENTIAL ELECTION: IMPLICATIONS FOR
THE CONSTITUTIONALITY OF SECTION 5 OF THE VOTING RIGHTS ACT, Harvard Law Review Forum, 126
Harv. L. Rev. F. 205, p. 218-9
To confirm our prior findings from the survey data and our current findings from the ecological regressions, we
turn to an analysis of the relevant data from the Survey of the Performance of American Elections (SPAE). The SPAE
includes approximately 200 voters from every state in the country and is chiefly used to compare the voting experience
between different states. Even with roughly 9,000 respondents, individual state effects might be difficult to unearth.
However, by aggregating the covered and noncovered states together we can, at least, get a sense of whether
partisanship accounts for all of the racial differences between voters in the covered and noncovered states. We should
also note that our findings have now been confirmed by analysis of newly available data from the 2012 Cooperative
Congressional Election Survey.
As Table 4 below confirms, the race of the voter continues to constitute a statistically significant factor in
determining vote choice even after controlling for party. Even in the stripped-down first regression, race plays a more
important role in the covered than the noncovered states in determining vote choice, as the substantially higher Rsquared demonstrates. After adding party to the regression, however, race does not "drop out." Of course, when
including party, much more of the variance in vote choice can be explained for both the covered and noncovered states,
but race in the 2012 election remains a statistically significant factor in vote choice. n21 The moral of the story is that
differences in party identification did not account for all of the differences between racial groups in their choice of
presidential candidates in 2012 or 2008.
CONCLUSION
Reasonable people can disagree about the relevance of the 2012 election or even racially polarized voting patterns
to the constitutionality of the coverage formula for section 5 of the Voting Rights Act. Indeed, we view our findings
more as a response to the notion that the election and reelection of an African American President settles the
constitutional question in favor of the VRA's detractors. If anything, the opposite is true. To be sure, the coverage
formula does not capture every racially polarized jurisdiction, nor does every county covered by section 5 outrank every
noncovered county on this score. However, the stark race-based differences in voting patterns between the covered and
noncovered jurisdictions taken as a whole demonstrate the coverage formula's continuing relevance.
In particular, for those looking for a way to distinguish the covered jurisdictions from the noncovered jurisdictions,
and to do so without running afoul of the "elephant whistle" problem, differential rates of racially polarized voting
provide an ideal metric. There can be no doubt that the covered jurisdictions differ, as a group, from the noncovered
jurisdictions in their rates of racially polarized voting. There can also be no doubt that voting in the covered
jurisdictions as a whole is becoming more, not less, polarized over time.
Planet Debate 2014
February PF Topic – Voting Rights Act
75
A2: The Past is the Past
The past is prologue and we don’t’ want this history to repeat
Supreme Court Justice Ginsburg, 2013, (+ justices Breyer, Sotomayor, and Kagan, Shelby County v.
Holder, June 25,
http://www2.bloomberglaw.com/public/desktop/document/Shelby_Cnty_v_Holder_No_1296_2013_BL_1
67707_US_June_25_2013_Court)
There is no question, moreover, that the covered jurisdictions have a unique history of problems
with racial discrimination in voting. Consideration of this long history, still in living memory,
was altogether appropriate. The Court criticizes Congress for failing to recognize that "history did
not end in 1965." Ante, at 20. But the Court ignores that "what's past is prologue." W.
Shakespeare, The Tempest, act 2, sc. 1. And "[t]hose who cannot remember the past are
condemned to repeat it." 1 G. Santayana, The Life of Reason 284 (1905). Congress was
especially mindful of the need to reinforce the gains already made and to prevent backsliding.
Discriminatory voting remains in preclearance jurisdictions
Supreme Court Justice Ginsburg, 2013, (+ justices Breyer, Sotomayor, and Kagan, Shelby County v.
Holder, June 25,
http://www2.bloomberglaw.com/public/desktop/document/Shelby_Cnty_v_Holder_No_1296_2013_BL_1
67707_US_June_25_2013_Court)
Congress learned of these conditions through a report, known as the Katz study, that looked at § 2
suits between 1982 and 2004. To Examine the Impact and Effectiveness of the Voting Rights Act:
Hearing before the Subcommittee on the Constitution of the House Committee on the Judiciary,
109th Cong., 1st Sess., pp. 964-1124 (2005) (hereinafter Impact and Effectiveness). Because the
private right of action authorized by § 2 of the VRA applies nationwide, a comparison of § 2
lawsuits in covered and noncovered jurisdictions provides an appropriate yardstick for measuring
differences between covered and noncovered jurisdictions. If differences in the risk of voting
discrimination between covered and noncovered jurisdictions had disappeared, one would expect
that the rate of successful § 2 lawsuits would be roughly the same in both areas.[fn6] The study's
findings, however, indicated that racial discrimination in voting remains "concentrated in the
jurisdictions singled for preclearance."
Although covered jurisdictions account for less than 25 percent of the country's population, the
Katz study revealed that they accounted for 56 percent of successful § 2 litigation since 1982.
Controlling for population, there were nearly four times as many successful § 2 cases in covered
jurisdictions as there were in noncovered jurisdictions. The Katz study further found that § 2
lawsuits are more likely to succeed when they are filed in covered jurisdictions than in
noncovered jurisdictions. From these findings — ignored by the Court — Congress reasonably
concluded that the coverage formula continues to identify the jurisdictions of greatest concern.
Planet Debate 2014
February PF Topic – Voting Rights Act
76
Districts remain racially polarized, creating incentives for incumbents to
support racially inappropriate voting practices
Supreme Court Justice Ginsburg, 2013, (+ justices Breyer, Sotomayor, and Kagan, Shelby County v.
Holder, June 25,
http://www2.bloomberglaw.com/public/desktop/document/Shelby_Cnty_v_Holder_No_1296_2013_BL_1
67707_US_June_25_2013_Court)
The evidence before Congress, furthermore, indicated that voting in the covered jurisdictions was
more racially polarized than elsewhere in the country. H. R. Rep. No. 109-478, at 34-35. While
racially polarized voting alone does not signal a constitutional violation, it is a factor that
increases the vulnerability of racial minorities to discriminatory changes in voting law. The
reason is twofold. First, racial polarization means that racial minorities are at risk of being
systematically outvoted and having their interests underrepresented in legislatures. Second,
"when political preferences fall along racial lines, the natural inclinations of incumbents and
ruling parties to entrench themselves have predictable racial effects. Under circumstances of
severe racial polarization, efforts to gain political advantage translate into race-specific
disadvantages." Ansolabehere, Persily, & Stewart, Regional Differences in Racial Polarization in
the 2012 Presidential Election: Implications for the Constitutionality of Section 5 of the Voting
Rights Act, 126 Harv. L. Rev. Forum 205, 209 (2013). In other words, a governing political
coalition has an incentive to prevent changes in the existing balance of voting power. When
voting is racially polarized, efforts by the ruling party to pursue that incentive "will inevitably
discriminate against a racial group." Ibid. Just as buildings in California have a greater need to be
earthquake-proofed, places where there is greater racial polarization in voting have a greater need
for prophylactic measures to prevent purposeful race discrimination. This point was understood
by Congress and is well recognized in the academic literature. See 2006 Reauthorization §
2(b)(3), 120 Stat. 577 ("The continued evidence of racially polarized voting in each of the
jurisdictions covered by the [preclearance requirement] demonstrates that racial and language
minorities remain politically vulnerable"); H. R. Rep. No. 109-478, at 35; Davidson, The Recent
Evolution of Voting Rights Law Affecting Racial and Language Minorities, in Quiet Revolution
21, 22.
Pervasive discrimination exists in Alabama, making it constitutional to apply
the preclearance requirement there
Supreme Court Justice Ginsburg, 2013, (+ justices Breyer, Sotomayor, and Kagan, Shelby County v.
Holder, June 25,
http://www2.bloomberglaw.com/public/desktop/document/Shelby_Cnty_v_Holder_No_1296_2013_BL_1
67707_US_June_25_2013_Court)
Shelby County launched a purely facial challenge to the VRA's 2006 reauthorization. " A facial
challenge to a legislative Act," the Court has other times said, "is, of course, the most difficult
challenge to mount successfully, since the challenger must establish that no set of circumstances
exists under which the Act would be valid." "[U]nder our constitutional system[,] courts are not
roving commissions assigned to pass judgment on the validity of the Nation's laws.” Instead, the
"judicial Power" is limited to deciding particular "Cases" and "Controversies." U. S. Const., Art.
III, § 2. "Embedded in the traditional rules governing constitutional adjudication is the principle
that a person to whom a statute may constitutionally be applied will not be heard to challenge that
Planet Debate 2014
February PF Topic – Voting Rights Act
77
statute on the ground that it may conceivably be applied unconstitutionally to others, in other
situations not before the Court." Yet the Court's opinion in this case contains not a word
explaining why Congress lacks the power to subject to preclearance the particular plaintiff that
initiated this lawsuit — Shelby County, Alabama. The reason for the Court's silence is apparent,
for as applied to Shelby County, the VRA's preclearance requirement is hardly contestable.
Alabama is home to Selma, site of the "Bloody Sunday" beatings of civil-rights demonstrators
that served as the catalyst for the VRA's enactment. Following those events, Martin Luther King,
Jr., led a march from Selma to Montgomery, Alabama's capital, where he called for passage of
the VRA. If the Act passed, he foresaw, progress could be made even in Alabama, but there had
to be a steadfast national commitment to see the task through to completion. In King's words, "the
arc of the moral universe is long, but it bends toward justice." G. May, Bending Toward Justice:
The Voting Rights Act and the Transformation of American Democracy 144 (2013).
History has proved King right. Although circumstances in Alabama have changed, serious
concerns remain. Between 1982 and 2005, Alabama had one of the highest rates of successful § 2
suits, second only to its VRA-covered neighbor Mississippi. 679 F. 3d, at 897 (Williams, J.,
dissenting). In other words, even while subject to the restraining effect of § 5, Alabama was
found to have "deni[ed] or abridge[d]" voting rights "on account of race or color" more frequently
than nearly all other States in the Union. 42 U. S. C. § 1973(a). This fact prompted the dissenting
judge below to concede that "a more narrowly tailored coverage formula" capturing Alabama and
a handful of other jurisdictions with an established track record of racial discrimination in voting
"might be defensible." 679 F. 3d, at 897 (opinion of Williams, J.). That is an understatement.
Alabama's sorry history of § 2 violations alone provides sufficient justification for Congress'
determination in 2006 that the State should remain subject to § 5's preclearance requirement
A few examples suffice to demonstrate that, at least in Alabama, the "current burdens" imposed
by § 5's preclearance requirement are "justified by current needs.". In the interim between the
VRA's 1982 and 2006 reauthorizations, this Court twice confronted purposeful racial
discrimination in Alabama. In Pleasant Grove v. United States, 479 U. S. 462 (1987), the Court
held that Pleasant Grove — a city in Jefferson County, Shelby County's neighbor — engaged in
purposeful discrimination by annexing all-white areas while rejecting the annexation request of
an adjacent black neighborhood. The city had "shown unambiguous opposition to racial
integration, both before and after the passage of the federal civil rights laws," and its strategic
annexations appeared to be an attempt "to provide for the growth of a monolithic white voting
block" for "the impermissible purpose of minimizing future black voting strength. Two years
before Pleasant Grove, the Court in Hunter v. Underwood, 471 U. S. 222 (1985), struck down a
provision of the Alabama Constitution that prohibited individuals convicted of misdemeanor
offenses "involving moral turpitude" from voting. Id., at 223 (internal quotation marks omitted).
The provision violated the Fourteenth Amendment's Equal Protection Clause, the Court
unanimously concluded, because "its original enactment was motivated by a desire to
discriminate against blacks on account of race[,] and the [provision] continues to this day to have
that effect." Pleasant Grove and Hunter were not anomalies. In 1986, a Federal District Judge
concluded that the at-large election systems in several Alabama counties violated § 2. Dillard v.
Crenshaw Cty., 640 F. Supp. 1347, 1354-1363 (MD Ala. 1986). Summarizing its findings, the
court stated that "[f]rom the late 1800's through the present, [Alabama] has consistently erected
barriers to keep black persons from full and equal participation in the social, economic, and
political life of the state." The Dillard litigation ultimately expanded to include 183 cities,
counties, and school boards employing discriminatory at-large election systems. Dillard v.
Baldwin Cty. Bd. of Ed., 686 F. Supp. 1459, 1461 (MD Ala. 1988). One of those defendants was
Shelby County, which eventually signed a consent decree to resolve the claims against it. See
Dillard v. Crenshaw Cty., 748 F. Supp. 819 (MD Ala. 1990). Although the Dillard litigation
resulted in overhauls of numerous electoral systems tainted by racial discrimination, concerns
Planet Debate 2014
February PF Topic – Voting Rights Act
78
about backsliding persist. In 2008, for example, the city of Calera, located in Shelby County,
requested preclearance of a redistricting plan that "would have eliminated the city's sole majorityblack district, which had been created pursuant to the consent decree in DillardAlthough DOJ
objected to the plan, Calera forged ahead with elections based on the unprecleared voting
changes, resulting in the defeat of the incumbent African-American councilman who represented
the former majority-black district. Ibid. The city's defiance required DOJ to bring a § 5
enforcement action that ultimately yielded appropriate redress, including restoration of the
majority-black district. Ibid.; Brief for Respondent-Intervenors Earl Cunningham et al. 20. A
recent FBI investigation provides a further window into the persistence of racial discrimination in
state politics. Recording devices worn by state legislators cooperating with the FBI's investigation
captured conversations between members of the state legislature and their political allies. The
recorded conversations are shocking. Members of the state Senate derisively refer to AfricanAmericans as "Aborigines" and talk openly of their aim to quash a particular gambling-related
referendum because the referendum, if placed on the ballot, might increase African-American
voter turnout. These conversations occurred not in the 1870's, or even in the 1960's, they took
place in 2010 The District Judge presiding over the criminal trial at which the recorded
conversations were introduced commented that the "recordings represent compelling evidence
that political exclusion through racism remains a real and enduring problem" in Alabama. Racist
sentiments, the judge observed, "remain regrettably entrenched in the high echelons of state
government." These recent episodes forcefully demonstrate that § 5's preclearance requirement is
constitutional as applied to Alabama and its political subdivisions.[fn8] And under our case law,
that conclusion should suffice to resolve this case. See United States v. Raines, 362 U. S. 17, 2425 (1960) ("[I]f the complaint here called for an application of the statute clearly constitutional
under the Fifteenth Amendment, that should have been an end to the question of
constitutionality."). See also Nevada Dept. of Human Resources v. Hibbs, 538 U. S. 721, 743
(2003) (SCALIA, J., dissenting) (where, as here, a state or local government raises a facial
challenge to a federal statute on the ground that it exceeds Congress' enforcement powers under
the Civil War Amendments, the challenge fails if the opposing party is able to show that the
statute "could constitutionally be applied to some jurisdictions").
Courts had recently upheld the formula
Supreme Court Justice Ginsburg, 2013, (+ justices Breyer, Sotomayor, and Kagan, Shelby County v.
Holder, June 25,
http://www2.bloomberglaw.com/public/desktop/document/Shelby_Cnty_v_Holder_No_1296_2013_BL_1
67707_US_June_25_2013_Court)
Consider once again the components of the record before Congress in 2006. The coverage
provision identified a known list of places with an undisputed history of serious problems with
racial discrimination in voting. Recent evidence relating to Alabama and its counties was there
for all to see. Multiple Supreme Court decisions had upheld the coverage provision, most recently
in 1999. There was extensive evidence that, due to the preclearance mechanism, conditions in the
covered jurisdictions had notably improved. And there was evidence that pre-clearance was still
having a substantial real-world effect, having stopped hundreds of discriminatory voting changes
in the covered jurisdictions since the last reauthorization. In addition, there was evidence that
racial polarization in voting was higher in covered jurisdictions than elsewhere, increasing the
vulnerability of minority citizens in those jurisdictions. And countless witnesses, reports, and case
studies documented continuing problems with voting discrimination in those jurisdictions. In
light of this record, Congress had more than a reasonable basis to conclude that the existing
coverage formula was not out of sync with conditions on the ground in covered areas. And
certainly Shelby County was no candidate for release through the mechanism Congress provided.
Planet Debate 2014
February PF Topic – Voting Rights Act
79
Second generation restrictions have emerged in covered areas
Supreme Court Justice Ginsburg, 2013, (+ justices Breyer, Sotomayor, and Kagan, Shelby County v.
Holder, June 25,
http://www2.bloomberglaw.com/public/desktop/document/Shelby_Cnty_v_Holder_No_1296_2013_BL_1
67707_US_June_25_2013_Court)
The Court holds § 4(b) invalid on the ground that it is "irrational to base coverage on the use of
voting tests 40 years ago, when such tests have been illegal since that time." But the Court
disregards what Congress set about to do in enacting the VRA. That extraordinary legislation
scarcely stopped at the particular tests and devices that happened to exist in 1965. The grand aim
of the Act is to secure to all in our polity equal citizenship stature, a voice in our democracy
undiluted by race. As the record for the 2006 reauthorization makes abundantly clear, secondgeneration barriers to minority voting rights have emerged in the covered jurisdictions as
attempted substitutes for the first-generation barriers that originally triggered preclearance in
those jurisdictions.
Congress has an obligation to protect the right to vote
Supreme Court Justice Ginsburg, 2013, (+ justices Breyer, Sotomayor, and Kagan, Shelby County v.
Holder, June 25,
http://www2.bloomberglaw.com/public/desktop/document/Shelby_Cnty_v_Holder_No_1296_2013_BL_1
67707_US_June_25_2013_Court)
The Constitution uses the words "right to vote" in five separate places: the Fourteenth, Fifteenth,
Nineteenth, Twenty-Fourth, and Twenty-Sixth Amendments. Each of these Amendments contains
the same broad empowerment of Congress to enact "appropriate legislation" to enforce the
protected right. The implication is unmistakable: Under our constitutional structure, Congress
holds the lead rein in making the right to vote equally real for all U. S. citizens. These
Amendments are in line with the special role assigned to Congress in protecting the integrity of
the democratic process in federal elections. U. S. Const., Art. I, § 4 ("[T]he Congress may at any
time by Law make or alter" regulations concerning the "Times, Places and Manner of holding
Elections for Senators and Representatives.").
Second generation laws continue the problem
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.
Contrary to the majority's implication that voting rights problems are in the past, the DOJ objected to more preclearance
submissions from 1982 to 2006 than it did from 1965 to 1982. The dissent lists a powerful set of recent examples of
heinous attempts at voter suppression in Alabama, Mississippi, Texas, and other jurisdictions covered under Section
4(b). These so-called "second-generation barriers", such as voter ID laws, redistricting, restrictions on early voting, and
other subtle legislative and administrative tactics lack the blatancy of 1960s-era racism, but work to serve the same
political purpose- the disenfranchisement of minority voters and the dilution of their political power. In addition, the
majority ignored the deterrent effect of pre-clearance. As Justice Ginsberg aptly put it, "Throwing out preclearance
when it has worked ... is like throwing away your umbrella in a rainstorm because you are not getting wet. Justice
Ginsburg's assertion that preclearance requirements served as a check on restrictive legislation needed only days for
Planet Debate 2014
February PF Topic – Voting Rights Act
80
validation. Some of the states previously subjected to preclearance are already advancing election law changes, mostly
relating to "voter ID" laws, which purportedly fight voter fraud, but are actually effective means of diluting the vote of
low-income minorities lacking required state identification. Texas will immediately enforce voter ID legislation that
was blocked by the DOJ less than a year ago, as will Alabama, Mississippi, Virginia, and South Carolina (pending its
compliance with a court order).
Planet Debate 2014
February PF Topic – Voting Rights Act
81
A2: No Evidence of Continued Discrimination in Shelby County
Recent election changes in Shelby County would not likely have been
approved
David Tatel, Senior Circuit Judge, May 2012, US Court of Appeals,
http://www.cadc.uscourts.gov/internet/opinions.nsf/D79C82694E572B4D85257A02004EC903/$file/11-52561374370.pdf
Shelby County filed suit in the U.S. District Court for the District of Columbia, seeking both a
declaratory judgment that sections 4(b) and 5 of the Voting Rights Act are facially
unconstitutional and a permanent injunction prohibiting the Attorney General from enforcing
them. Unlike the utility district in Northwest Austin, Shelby County never sought bailout, and for
good reason. Because the county had held several special elections under a law for which it failed
to seek preclearance and because the Attorney General had recently objected to annexations and a
redistricting plan proposed by a city within Shelby County, the County was clearly ineligible for
bailout. As the district court—Judge John D. Bates—recognized, the “serious constitutional
questions” raised in Northwest Austin could “no longer be avoided.”
Planet Debate 2014
February PF Topic – Voting Rights Act
82
A2: Need Evidence of Widespread* Electoral Gamesmanship
No, current law would make that impossible to provide
David Tatel, Senior Circuit Judge, May 2012, US Court of Appeals,
http://www.cadc.uscourts.gov/internet/opinions.nsf/D79C82694E572B4D85257A02004EC903/$file/11-52561374370.pdf
First, Shelby County argues that section 5 can be sustained only on the basis of current evidence
of “a widespread pattern of electoral gamesmanship showing systematic resistance to the
Fifteenth Amendment.” Appellant’s Br. 23. According to the County, the preclearance remedy
may qualify as congruent and proportional only “when it addresses a coordinated campaign of
discrimination intended to circumvent the remedial effects of direct enforcement of Fifteenth
Amendment voting rights.” We disagree. For one thing, how could we demand evidence of
gamesmanship of the sort present at the time of Katzenbach given that section 5 preclearance
makes such tactics virtually impossible? Equally important, Shelby County’s argument rests on a
misreading of Katzenbach. Although the Court did describe the situation in 1965 as one of
“unremitting and ingenious defiance of the Constitution,” Katzenbach, 383 U.S. at 309, nothing
in Katzenbach suggests¶ that such gamesmanship was necessary to the Court’s judgment that
section 5 was constitutional. Rather, the critical factor was that “Congress had found that case-bycase litigation was inadequate to combat widespread and persistent discrimination in voting.” See
also id. at 313–15 (explaining why laws facilitating case-by-case litigation had “proved
ineffective”). In City of Rome, the Court, while recognizing that “undeniable” progress had been
made, sustained section 5’s constitutionality without ever mentioning gamesmanship of any kind,
446 U.S. at 181–82; it relied instead on racial disparities in registration, the low number of
minority elected officials, and the number and nature of Attorney General objections, id. at 180–
81. Reinforcing this interpretation of Katzenbach and City of Rome, the Supreme Court explained
in City of Boerne that “[t]he [Voting Rights Act’s] new, unprecedented remedies were deemed
necessary given the ineffectiveness of the existing voting rights laws, and the slow, costly
character of case-by-case litigation,” 521 U.S. at 526 (citation omitted). The Court reiterated the
point in Board of Trustees of the University of Alabama v. Garrett, 531 U.S. 356, 373 (2001): “In
[enacting the Voting Rights] Act . . . Congress also determined that litigation had proved
ineffective . . . .Ӧ This emphasis on the inadequacy of case-by-case litigation makes sense: if
section 2 litigation is adequate to deal with the magnitude and extent of constitutional violations
in covered jurisdictions, then Congress might have no justification for requiring states to preclear
their voting changes. Put another way, what is needed to make section 5 congruent and
proportional is a pattern of racial discrimination in voting so serious and widespread that caseby-case litigation is inadequate. Given this, the question before us is not whether the legislative
record reflects the kind¶ of “ingenious defiance” that existed prior to 1965, but 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. If it has, then
section 5’s “substantial federalism costs” remain justified because preclearance is still needed to
remedy continuing violations of the Fifteenth Amendment.¶
Planet Debate 2014
February PF Topic – Voting Rights Act
83
A2: The Practices Do Not Prevent Minorities from Voting
Practices that dilute the strength of the vote are racist
David Tatel, Senior Circuit Judge, May 2012, US Court of Appeals,
http://www.cadc.uscourts.gov/internet/opinions.nsf/D79C82694E572B4D85257A02004EC903/$file/11-52561374370.pdf
Second, Shelby County urges us to disregard much of the evidence Congress considered because
it involves “vote dilution, going to the weight of the vote once cast, not access to the ballot.”
Appellant’s Br. 26. Specifically, the County faults Congress for relying on selective annexations,
certain redistricting techniques, at-large elections, and other practices that do not prevent
minorities from voting but instead “dilute minority voting strength,” 2006 Act § 2(b)(4)(A).
According to the County, because the Supreme Court has “never held that vote dilution violates
the Fifteenth Amendment,” Bossier II, 528 U.S. at 334 n.3, we may not rely on such evidence to
sustain section 5 as a valid exercise of Congress’s Fifteenth Amendment enforcement power.¶ It is
true that neither the Supreme Court nor this court has ever held that intentional vote dilution
violates the Fifteenth Amendment. But the Fourteenth Amendment prohibits vote dilution
intended “invidiously to minimize or cancel out the voting potential of racial or ethnic
minorities.” City of Mobile v. Bolden, 446 U.S. 55, 66 (1980); see also, e.g., Shaw v. Reno, 509
U.S. 630, 641 (1993). Although the Court’s previous decisions upholding section 5 focused on
Congress’s power to enforce the Fifteenth Amendment, the same “congruent and proportional”
standard, refined by the inquiries set forth in Northwest Austin, appears to apply¶ “irrespective of
whether Section 5 is considered [Fifteenth Amendment] enforcement legislation, [Fourteenth
Amendment] enforcement legislation, or a kind of hybrid legislation enacted pursuant to both
amendments.” Shelby Cnty., 811 F. Supp. 2d at 462 (footnote omitted); see also City of Boerne,
521 U.S. at 518 (suggesting that Congress’s “power to enforce the provisions of the Fifteenth
Amendment” is “parallel” to its power to enforce the Fourteenth Amendment). Indeed, when
reauthorizing the Act in 2006, Congress expressly invoked its enforcement authority under both
the Fourteenth and Fifteenth Amendments. See H.R. Rep. No. 109-478, at 90 (“[T]he Committee
finds the authority for this legislation under amend. XIV, § 5 and amend. XV, § 2.”); id. at 53 &
n.136 (stating that Congress is acting under its Fourteenth and Fifteenth Amendment powers in
reauthorizing the Voting Rights Act). Accordingly, like Congress and the district court, we think
it appropriate to consider evidence of unconstitutional vote dilution in evaluating section 5’s
validity. See City of Rome, 446 U.S. at 181 (citing Congress’s finding that “[a]s registration and
voting of minority citizens increase[], other measures may be resorted to which would dilute
increasing minority voting strength” as evidence of the continued need for section 5 (internal
quotation marks omitted)).¶ Consideration of this evidence is especially important given that socalled “second generation” tactics like intentional vote dilution are in fact decades-old forms of
gamesmanship. That is, “as African Americans made progress in abolishing some of the devices
whites had used to prevent them from voting,” both in the late nineteenth century and again in the
1950s and 1960s, “[o]fficials responded by adopting new measures to minimize the impact of
black¶ eenfranchisement.” Voting Rights Act: Evidence of Continued Need: Hearing Before the
Subcomm. on the Constitution of the H. Comm. on the Judiciary, 109th Cong. 141–43 (2006)
(“Evidence of Continued Need”). These measures—“well-known” tactics such as “ ‘pack[ing]’ ”
minorities into a single district, spreading minority voters thinly among several districts, annexing
predominately white suburbs, and so on—were prevalent “forms of vote dilution” then, and
Congress determined that these persist today. Id. Specifically, Congress found that while “first
Planet Debate 2014
February PF Topic – Voting Rights Act
84
generation barriers”—flagrant attempts to deny access to the polls that were pervasive at the time
of Katzenbach—have diminished, “second generation barriers” such as vote dilution have been
“constructed to prevent minority voters from fully participating in the electoral process.” 2006
Act § 2(b)(2) (congressional findings). Although such methods may be “more subtle than the
visible methods used in 1965,” Congress concluded that their “effect and results are the same,
namely a diminishing of the minority community’s ability to fully participate in the electoral
process and to elect their preferred candidates of choice.”
Second generation measures include actions that degrade the significance of
the vote
Justin Levitt is a Visiting Associate Professor of Law at Yale Law School and an Associate Professor at Loyola Law
School in Los Angeles, The Yale Law Journal Online, June 7, 2013, The Yale Law Journal Online, Section 5 as
Simulacrum, http://yalelawjournal.org/2013/06/07/levitt.html., p. 160-1
To the extent that the section 5 simulacrum ever represented reality, however, the real statute is certainly no longer
merely about wholesale access to the ballot. The authors of the Act recognized the powerful creativity of the drive to
retain political power, and built a preclearance regime encompassing "any" procedure with respect to voting that either
denies or abridges the right to vote on account of race or color. This certainly includes the Jim Crow tactics of the
1960s: blunderbuss acts aimed at minority citizens across the board. But it also includes more subtle procedures that
dilute political power by affecting not most minority voters, but a substantial and disproportionate number of those
voters. And at least since Allen v. State Board of Elections, the provision's scope has also been interpreted to encompass
"second-generation" abridgment of political power. Such abridgment includes not only procedures that constrict access
to the polls, but also districting and annexation decisions that limit or degrade racial or ethnic minorities' meaningful
representation even when each individual can cast a valid ballot.
Planet Debate 2014
February PF Topic – Voting Rights Act
85
A2: Discrimination is Not Intentional
Many examples of intentional discrimination
David Tatel, Senior Circuit Judge, May 2012, US Court of Appeals,
http://www.cadc.uscourts.gov/internet/opinions.nsf/D79C82694E572B4D85257A02004EC903/$file/11-52561374370.pdf
Shelby County contends that section 5 objections and MIRs, however numerous, “do[] not signal
intentional voting discrimination” because they represent only the Attorney General’s opinion
and need not be based on discriminatory intent. Underlying this argument is a fundamental
principle with which we agree: to sustain section 5, the record must contain “evidence of a pattern
of constitutional violations,” Hibbs, 538 U.S. at 729, and voting changes violate the constitution
only if motivated by discriminatory animus. Although not all objections rest on an affirmative
finding of intentional discrimination, the record contains examples of many that do. See Nw.
Austin, 573 F. Supp. 2d at 289–301 (appendix providing examples of objections based on
discriminatory intent). Between 1980 and 2004, the Attorney General issued at least 423
objections based in whole or in part on discriminatory intent. Voting Rights Act: Section 5—
Preclearance Standards: Hearing Before the Subcomm. on the Constitution of the H. Comm. on
the Judiciary, 109th Cong. 180–81 (2005) (“Preclearance Standards”). Moreover, in the 1990s,
before the Supreme Court limited the Attorney General’s ability to object based on discriminatory
but non- retrogressive intent, see Bossier II, 528 U.S. 320 (limiting the scope of section 5’s
purpose prong in a decision overturned by the 2006 Act), “the purpose prong of Section 5 had
become the dominant legal basis for objections,” Preclearance Standards 177, with seventy-four
percent of objections based in whole or in part on discriminatory intent, id. at 136. Although it is
true that objections represent “only one side’s opinion,” Appellant’s Br. 30, Congress is entitled
to rely upon the Attorney General’s considered judgment “when it prescribes civil remedies . . .
under [section] 2 of the Fifteenth Amendment.” Katzenbach, 383 U.S. at 330 (explaining that
“Congress obviously may avail itself of information from any probative source,” including
evidence “adduced by the Justice Department”). In fact, in City of Rome the Supreme Court
considered objections to be probative evidence of unconstitutional voting discrimination.
Need for federal observers proves that the discrimination is intentional
David Tatel, Senior Circuit Judge, May 2012, US Court of Appeals,
http://www.cadc.uscourts.gov/internet/opinions.nsf/D79C82694E572B4D85257A02004EC903/$file/11-52561374370.pdf
Third, Congress relied on evidence of “the tens of thousands of Federal observers that have been
dispatched to observe elections in covered jurisdictions.” Specifically, 300 to 600 observers were
dispatched annually between 1984 and 2000, H.R. Rep. No. 109-478, at 44, amounting to 622
separate dispatches (most or all involving multiple observers) to covered jurisdictions, Evidence
of Continued Need 180–82; see also 42 U.S.C. § 1973f(a)(2) (authorizing dispatch of federal
observers to covered jurisdictions based upon either “written meritorious complaints from
residents, elected officials, or civic participation organizations,” or the Attorney General’s
judgment that observers are necessary to enforce the Fourteenth or Fifteenth Amendment). Of
these, sixty-six percent were concentrated in five of the six states originally covered by section
5—Alabama, Georgia, Louisiana, Mississippi, and South Carolina. In some instances, monitoring
by federal observers “bec[ame] the foundation of Department of Justice enforcement efforts,” as
Planet Debate 2014
February PF Topic – Voting Rights Act
86
in Conecuh County, Alabama, and Johnson County, Georgia, where reports by federal observers
enabled the federal government to bring suit against county officials for discriminatory conduct in
polling locations, ultimately resulting in consent decrees. Id.; see also Voting Rights Act:
Sections 6 and 8—The Federal Examiner and Observer Program: Hearing Before the Subcomm.
on the Constitution of the H. Comm. on the Judiciary, 109th Cong. 42–43 (2006) (“Sections 6
and 8”). As Congress saw it, this continued need for federal observers in covered jurisdictions is
indicative of discrimination and “demonstrates that the discriminatory conduct experienced by
minority voters is not solely limited to tactics to dilute the voting strength of minorities but
continues to include tactics to disenfranchise, such as harassment and intimidation inside polling
locations.”
Discriminatory effects of laws should be prohibited, not just discriminatory
intent
Danieli Evans., J.D., Yale Law School., Spring 2013, Boston College Journal of Law & Social Justice, ARTICLE: THE
"NIXON SABOTAGE": THE POLITICAL ORIGINS OF THE EQUAL PROTECTION CHALLENGE TO THE
VOTING RIGHTS ACT, p. 343-4
The story behind Swann v. Charlotte-Mecklenburg Board of Education illustrates that constitutional remedies were
limited to race-motivated decisions, in part out of deference to Congress and the President, who objected to judges
creating policy under the guise of constitutional remedies. Congress, however, has consistently chosen to define illegal
discrimination more broadly than racial motivation. There are at least two good reasons that Congress could find it
necessary to outlaw discriminatory effects, as well as discriminatory motives, in order to effectively combat racial
discrimination. First, defining discrimination in terms of invidious racial motivation is inconsistent with contemporary
scientific understanding that discrimination mostly occurs subconsciously, rather than deliberately. Purposeful
discrimination has long been recognized as immoral and taboo. As such, people are unlikely to recognize themselves as
operating on prejudiced motives. An innate psychological drive to perceive ones' own conduct as moral causes
cognitive dissonance avoidance, which leads people to genuinely perceive their actions as motivated by legitimate
justifications. And people who perceive themselves as neutral or non-prejudicial may be less on guard, and
inadvertantly act in biased ways. Even employers expressly seeking to diversify their workforce are likely to perceive
job applicants with "white-sounding" names as better qualified than those with "black-sounding" names. Such research
suggests that much discrimiantory decision making occurs subconsciously, contrary to the good intentions of the
decisionmaker. Many of those making discriminatory decisions are not conscious of their racial motives (indeed
actively eschew seeing themselves as being motivated by race), and these decisions are not captured when
discrimination is defined solely in terms of racial motives. Second, as the Court recognized in Wright v. City of
Emporia, looking for racial motivation is inconsistent with the way that official decisions are made. In reality, as Justice
Stewart's draft described, policies are designed by hundreds of uncoordinated decisions made by officials in various
capacities, who probably never coalesce around one purposive mental state. Since limiting unconstitutional
discrimination to racial motivation, the Court has recognized as much, stating, "[p]roving the motivation behind official
action is often a problematic undertaking" and "[t]he distinction between being aware of racial considerations and being
motivated by them may be difficult to make." Indeed, when Congress reenacted Section 5 in 2006, it specifically
overrode the Court's recent decision that had narrowed the "effect" prong of the section, explaining, "over the last 30
years, Section 5's 'effect' prong has served to protect the minority communities' ability to elect candidates of choice in
covered jurisdictions." Section 5 of the 14th Amendment gives congress the power to enforce it through “appropriate
legislation.” This legislation can infringe on state power, though given the existence of the 10th Amendment,
encroachments on state power must be determined to be necessary.
Planet Debate 2014
February PF Topic – Voting Rights Act
87
A2: Civil Rights Act Solves
Civil Rights Act empirically fails to stop voter discrimination
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. 271
In the early 1950s and 1960s, Congress attempted to battle voter discrimination through case-by-case litigation with the
help of civil rights legislation from 1957, 1960, and 1964. For example, "Title I of the Civil Rights Act of 1964
expedited the hearing of voting cases before three-judge courts and outlawed some of the tactics used to disqualify
[black citizens] from voting in federal elections." These attempts failed to create long-term change; barring certain types
of discriminatory voting practices simply led to a modification of methods --Southern voting officials would do
everything from ignore court orders to freeze voting rolls by closing registration offices. To combat these invidious
tactics and "to banish the blight of racial discrimination in voting," Congress passed the Voting Rights Act of 1965.
Planet Debate 2014
February PF Topic – Voting Rights Act
88
Racial Polarization in Elections
Racial polarization is not racist voting
Stephen Ansolabehere is Professor of Government at Harvard University; Nathaniel Persily is the Charles
Keller Beekman Professor of Law and Political Science at Columbia Law School; and Charles Stewart III
is the Kenan Sahin Distinguished Professor of Political Science at the Massachusetts Institute of
Technology, 2013, REGIONAL DIFFERENCES IN RACIAL POLARIZATION IN THE 2012
PRESIDENTIAL ELECTION: IMPLICATIONS FOR THE CONSTITUTIONALITY OF SECTION 5 OF
THE VOTING RIGHTS ACT, Harvard Law Review Forum, 126 Harv. L. Rev. F. 205,
A. Racial Polarization, 1984-2008
Racially polarized voting is a term of art in voting rights law. It refers not to racist voting but to a high correlation
between vote choice and race. As Justice Brennan's opinion in Thornburg v. Gingles explained:
[T]he legal concept of racially polarized voting incorporates neither causation nor intent. It means simply
that the race of voters correlates with the selection of a certain candidate . . .; that is, it refers to the
situation where different races (or minority language groups) vote in blocs for different candidates.
2008 election racially polarized
Stephen Ansolabehere is Professor of Government at Harvard University; Nathaniel Persily is the Charles Keller
Beekman Professor of Law and Political Science at Columbia Law School; and Charles Stewart III is the Kenan Sahin
Distinguished Professor of Political Science at the Massachusetts Institute of Technology, 2013, REGIONAL
DIFFERENCES IN RACIAL POLARIZATION IN THE 2012 PRESIDENTIAL ELECTION: IMPLICATIONS FOR
THE CONSTITUTIONALITY OF SECTION 5 OF THE VOTING RIGHTS ACT, Harvard Law Review Forum, 126
Harv. L. Rev. F. 205, p. 213-4
As compared to the twenty-year trend that preceded it, racial polarization increased in the 2008 presidential
election. In both the covered and noncovered states, Barack Obama received a large, above-average share of the
minority vote, such that the white-black and white-Latino gap increased. However, in the covered states, his voteshare
among whites dropped two points from the historical average (tying the figure in 2004, we should note). In contrast, in
the noncovered states, he increased his white voteshare by six percentage points.
The 2008 election highlights how racial polarization -- the difference between the minority voteshare and white
voteshare received by the minority-preferred candidate -- can increase either through a decline in the white voteshare
received by the candidate or through an increase in the minority voteshare received (or both). In the noncovered states,
Barack Obama increased his voteshare among whites and minorities. In the noncovered states his share of the white
vote was below average for a Democrat, while his share of the minority vote was well above average, especially among
African Americans.
Table 2 compares Obama's voteshare by race with that of John Kerry's losing effort four years earlier. The exit
polls illustrate that the jump in white support he received was mainly due to increases in the noncovered areas -- the big
exception being Virginia where he received eight points more of the white voteshare than did Kerry. However, in
several covered states, white support for Obama dropped dramatically from four years earlier. In Alabama, Mississippi,
and Louisiana, for example, Obama received only 10%, 11%, and 14% of the white vote respectively, which was nine,
three, and ten percentage points less than Kerry received from whites in that state. Despite very favorable conditions for
the "out-party" candidate in 2008, Obama did not improve on Kerry's average performance among whites in the covered
states and dropped significantly in several of them.
Racial polarization in elections is increasing
Stephen Ansolabehere is Professor of Government at Harvard University; Nathaniel Persily is the Charles Keller
Planet Debate 2014
February PF Topic – Voting Rights Act
89
Beekman Professor of Law and Political Science at Columbia Law School; and Charles Stewart III is the Kenan Sahin
Distinguished Professor of Political Science at the Massachusetts Institute of Technology, 2013, REGIONAL
DIFFERENCES IN RACIAL POLARIZATION IN THE 2012 PRESIDENTIAL ELECTION: IMPLICATIONS FOR
THE CONSTITUTIONALITY OF SECTION 5 OF THE VOTING RIGHTS ACT, Harvard Law Review Forum, 126
Harv. L. Rev. F. 205, p. 214-5
C. Racial Polarization in Presidential Elections, 2000-2012
We can further demonstrate the shifts in rates of racial polarization by analyzing the actual election returns by
county and comparing them to each county's demographic makeup. This method is critical in comparing 2012 with
previous years, because the national exit poll was not taken in all states in 2012. In particular, only four of the covered
states (Arizona, Floria, Mississippi, and Virginia) were in the 2012 exit poll sample. In order to encompass all of the
covered states, we analyze the aggregate election results, rather than the exit polls.
We can display the regressions as both a table and a graph. The three key features of the regression line are (1) the
Y-intercept or constant, which indicates the likely white support for the Democratic nominee; (2) the steepness or slope
of the line, which reveals how closely related the racial composition of a district is to voteshare won by the Democratic
nominee (a forty-five-degree line would suggest that each one-percent increase in the black plus Hispanic share of the
county's population translates into one-percent vote for the Democratic candidate); and (3) the fit or R-squared value,
which indicates how good the regression line fits the data (that is, how close are the various data points to the line and
therefore how easy it is to predict the Democratic voteshare when knowing only the minority population share of the
county). Each measure is helpful in assessing racial polarization and comparing polarization between the covered and
noncovered counties.
As is clear from Figure B and Table 3, racial polarization according to all three statistics has been increasing in the
covered jurisdictions over the last twelve years. The Y-intercept (or constant) has gone lower each year: from 0.247 in
2000 to 0.198 in 2012, suggesting average white support in the covered counties has dropped from roughly 25% to just
under 20%. The same cannot be said for white support in the noncovered jurisdictions, which has hovered around 41%
for the period, with the exception of 2008 where Obama won about 45% of the white vote (on average) in the
noncovered counties. Consistent with the fact that Obama won a higher share of the minority vote, the slope (or
steepness of the regression line) and R-squared have increased considerably in the two Obama elections as compared to
their predecessors, and the differences remain great between the covered and noncovered jurisdictions. This suggests
that racial composition is not only a better predictor of voteshare in the covered counties than the noncovered counties,
but that it is becoming an increasingly better predictor of voteshare over time. In other words, if all one knew was the
racial composition of a county, one can more accurately predict the voteshare of Obama in 2012 than for any candidate
in the previous three elections.
Race plays a large role in voting
Stephen Ansolabehere is Professor of Government at Harvard University; Nathaniel Persily is the Charles Keller
Beekman Professor of Law and Political Science at Columbia Law School; and Charles Stewart III is the Kenan Sahin
Distinguished Professor of Political Science at the Massachusetts Institute of Technology, 2013, REGIONAL
DIFFERENCES IN RACIAL POLARIZATION IN THE 2012 PRESIDENTIAL ELECTION: IMPLICATIONS FOR
THE CONSTITUTIONALITY OF SECTION 5 OF THE VOTING RIGHTS ACT, Harvard Law Review Forum, 126
Harv. L. Rev. F. 205, p. 218-9
To confirm our prior findings from the survey data and our current findings from the ecological regressions, we
turn to an analysis of the relevant data from the Survey of the Performance of American Elections (SPAE). The SPAE
includes approximately 200 voters from every state in the country and is chiefly used to compare the voting experience
between different states. Even with roughly 9,000 respondents, individual state effects might be difficult to unearth.
However, by aggregating the covered and noncovered states together we can, at least, get a sense of whether
partisanship accounts for all of the racial differences between voters in the covered and noncovered states. We should
also note that our findings have now been confirmed by analysis of newly available data from the 2012 Cooperative
Congressional Election Survey.
As Table 4 below confirms, the race of the voter continues to constitute a statistically significant factor in
Planet Debate 2014
February PF Topic – Voting Rights Act
90
determining vote choice even after controlling for party. Even in the stripped-down first regression, race plays a more
important role in the covered than the noncovered states in determining vote choice, as the substantially higher Rsquared demonstrates. After adding party to the regression, however, race does not "drop out." Of course, when
including party, much more of the variance in vote choice can be explained for both the covered and noncovered states,
but race in the 2012 election remains a statistically significant factor in vote choice. The moral of the story is that
differences in party identification did not account for all of the differences between racial groups in their choice of
presidential candidates in 2012 or 2008.
CONCLUSION
Reasonable people can disagree about the relevance of the 2012 election or even racially polarized voting patterns
to the constitutionality of the coverage formula for section 5 of the Voting Rights Act. Indeed, we view our findings
more as a response to the notion that the election and reelection of an African American President settles the
constitutional question in favor of the VRA's detractors. If anything, the opposite is true. To be sure, the coverage
formula does not capture every racially polarized jurisdiction, nor does every county covered by section 5 outrank every
noncovered county on this score. However, the stark race-based differences in voting patterns between the covered and
noncovered jurisdictions taken as a whole demonstrate the coverage formula's continuing relevance.
In particular, for those looking for a way to distinguish the covered jurisdictions from the noncovered jurisdictions,
and to do so without running afoul of the "elephant whistle" problem, differential rates of racially polarized voting
provide an ideal metric. There can be no doubt that the covered jurisdictions differ, as a group, from the noncovered
jurisdictions in their rates of racially polarized voting. There can also be no doubt that voting in the covered
jurisdictions as a whole is becoming more, not less, polarized over time.
Planet Debate 2014
February PF Topic – Voting Rights Act
91
A2: Preclearance Rejection Rate has Declined
Still significant problems
David Tatel, Senior Circuit Judge, May 2012, US Court of Appeals,
http://www.cadc.uscourts.gov/internet/opinions.nsf/D79C82694E572B4D85257A02004EC903/$file/11-52561374370.pdf
Shelby County also points out that the percentage of proposed voting changes blocked by
Attorney General objections has steadily declined—from a height of 4.06 percent (1968–1972) to
0.44 percent (1978–1982) to 0.17 percent (1993–1997) and to 0.05 percent (1998–2002). An
Introduction to the Expiring Provisions of the Voting Rights Act and Legal Issues Relating to
Reauthorization: Hearing Before the S. Comm. on the Judiciary, 109th Cong. 219 (2006)
(“Introduction to the Expiring Provisions”). But the most dramatic decline in the objection rate—
which, as the district court observed, “has always been low,” Shelby Cnty., 811 F. Supp. 2d at
470—occurred in the 1970s, before the Supreme Court upheld the Act for a third time in City of
Rome. See Introduction to the Expiring Provisions 219. Also, the average number of objections
per year has not declined, suggesting that the level of discrimination has remained constant as the
number of proposed voting changes, many likely quite minor, has increased. See H.R. Rep. No.
109-478, at 22 (showing increase in the annual number of voting changes submitted for
preclearance, from 300–400 per year in the early 1970s to 4000–5000 per year in the 1990s and
2000s). As the district court pointed out, there may be “many plausible explanations for the recent
decline in objection rates.” See Shelby Cnty., 811 F. Supp. 2d at 471. Even in the six years from
2000 to 2006, after objection rates had dropped to their lowest, Attorney General objections
affected some 660,000 minority voters. The Continuing Need for Section 5 Pre-Clearance:
Hearing Before the S. Comm. on the Judiciary, 109th Cong. 58 (2006) (“Continuing Need”).
Ultimately, Congress believed that the absolute number of objections represented the better
indicator of the extent of discrimination in covered jurisdictions. This judgment— whether to
accord greater weight to absolute numbers or to objection rates—is precisely the kind that a
legislature is “far better equipped” than a court to evaluate, Turner Broad., 520 U.S. at 195
(internal quotation marks omitted). As for MIRs, we agree with Shelby County that they are less
probative of discrimination than objections. An MIR does not represent a judgment on the merits,
and submitting jurisdictions might have many reasons for modifying or withdrawing a proposed
change in response to one. But the record contains evidence from which Congress could
“reasonabl[y] infer[],” id. (internal quotation marks omitted), that at least some withdrawals or
modifications reflect the submitting jurisdiction’s acknowledgement that the proposed change
was discriminatory. See Evidence of Continued Need 178 (stating that a jurisdiction’s decision to
withdraw a proposed changes in response to an MIR “is frequently a tacit admission of one or
more proposed discriminatory changes”); id. at 809–10 (explaining that after the Attorney
General requested more information on a redistricting plan containing only two majority-black
districts, the jurisdiction withdrew the proposal and ultimately adopted a redistricting plan with
three majority-black districts); H.R. Rep. No. 109-478, at 41 (explaining that Monterey County’s
proposal to reduce the number of polling places received preclearance only after the County
withdrew five polling place consolidations in response to an MIR). Given this, Congress
reasonably concluded that some of the 800-plus withdrawals and modifications in response to
MIRs “reflect[]” “[e]fforts to discriminate over the past 25 years.”
Planet Debate 2014
February PF Topic – Voting Rights Act
92
A2: Section 2 Cases Don’t Prove Racism, They Aren’t About
Intent
They still prove discrimination as defined by the law
David Tatel, Senior Circuit Judge, May 2012, US Court of Appeals,
http://www.cadc.uscourts.gov/internet/opinions.nsf/D79C82694E572B4D85257A02004EC903/$file/11-52561374370.pdf
The second category of evidence relied on by Congress, successful section 2 litigation, reinforces
the pattern of discrimination revealed by objections and MIRs. The record shows that between
1982 and 2005, minority plaintiffs obtained favorable outcomes in some 653 section 2 suits filed
in covered jurisdictions, providing relief from discriminatory voting practices in at least 825
counties. Shelby County faults the district court for relying on evidence of successful section 2
litigation “even though ‘a violation of Section 2 does not require a showing of unconstitutional
discriminatory intent.’ ” Appellant’s Br. 34 (quoting Shelby Cnty., 811 F. Supp. 2d at 481). The
County’s premise is correct: although the Constitution prohibits only those voting laws motivated
by discriminatory intent, section 2 prohibits all voting laws for which “ ‘based on the totality of
circumstances, it is shown that the political processes leading to nomination or election in the
State or political subdivision are not equally open to participation by members of a [protected]
class.’ ” Bartlett v. Strickland, 556 U.S. 1, 10–11 (2009) (quoting 42 U.S.C. § 1973(b)). In
practice, however, this “results test,” as applied in section 2 cases, requires consideration of
factors very similar to those used to establish discriminatory intent based on circumstantial
evidence. Compare Gingles, 478 U.S. at 36–37 (listing factors considered under the results test),
with Rogers v. Lodge, 458 U.S. 613, 623–27 (1982) (relying on virtually identical factors to
affirm a finding of intentional discrimination). Also, as the district court pointed out, “courts will
avoid deciding constitutional questions” if, as is the case in virtually all successful section 2
actions, the litigation can be resolved on narrower grounds. Shelby Cnty., see also, e.g., White v.
Alabama, 74 F.3d 1058, 1071 n.42 (11th Cir. 1996) (“Because we dispose of the district court’s
judgment on the ground that it violates the Voting Rights Act, we need not, and indeed, should
not, discuss whether the judgment violates the Equal Protection Clause.”). This explains why the
legislative record contains so few published section 2 cases with judicial findings of
discriminatory intent, see Dissenting Op. at 26; To Examine the Impact and Effectiveness of the
Voting Rights Act: Hearing Before the Subcomm. on the Constitution of the H. Comm. on the
Judiciary, 109th Cong. 986–87 (2005) (“Impact and Effectiveness”) (report by Ellen Katz et
al.)—courts have no need to find discriminatory intent once they find discriminatory effect. But
Congress is not so limited. Considering the evidence required to prevail in a section 2 case and
accounting for the obligation of Article III courts to avoid reaching constitutional questions
unless necessary, we think Congress quite reasonably concluded that successful section 2 suits
provide powerful evidence of unconstitutional discrimination. In addition, as with Attorney
General objections, we cannot ignore the sheer number of successful section 2 cases—653 over
23 years, averaging more than 28 each year. This high volume of successful section 2 actions is
particularly dramatic given that Attorney General objections block discriminatory laws before
they can be implemented and that section 5 deters jurisdictions from even attempting to enact
such laws, thereby reducing the need for section 2 litigation in covered jurisdictions. See
Continuing Need 26 (explaining that section 5 “makes the covered jurisdiction[s] much ‘cleaner’
than they would have been without Section 5 coverage”).
Planet Debate 2014
February PF Topic – Voting Rights Act
93
A2: Presence of Observers Only Proves Discrimination is
Possible
No, presence of federal observers means there is discrimination
David Tatel, Senior Circuit Judge, May 2012, US Court of Appeals,
http://www.cadc.uscourts.gov/internet/opinions.nsf/D79C82694E572B4D85257A02004EC903/$file/11-52561374370.pdf
Shelby County insists that the Attorney General’s decision to dispatch federal observers
“indicates only that . . . there might be conduct with the effect of disenfranchising minority
citizens, which might or might not be purposeful discrimination.” Appellant’s Br. 35–36. As the
district court explained, however, “observers are not assigned to a particular polling location
based on sheer speculation; they are only dispatched if ‘there is a reasonable belief that minority
citizens are at risk of being disenfranchised.’” Indeed, the Justice Department conducts preelection investigations in order to identify jurisdictions where¶ federal observers are likely to be
necessary. See Sections 6 and 8, at 37–39 (explaining that the Justice Department conducts preelection surveys and field investigations to identify jurisdictions where federal observers will be
needed). The record shows that federal observers in fact witnessed discrimination at the polls,
sometimes in the form of intentional harassment, intimidation, or disparate treatment of minority
voters. See id. at 30–31 (describing discriminatory treatment and harassment of minorities by poll
officials in Alabama); id. at 34 (describing discriminatory treatment of minority voters in Texas
and Arizona); id. at 43 (describing the exclusion of African Americans from service as poll
workers in Johnson County, Georgia). Thus, although the deployment of federal observers is
hardly conclusive evidence of unconstitutional discrimination, we think Congress could
reasonably rely upon it as modest, additional evidence of current needs.
Planet Debate 2014
February PF Topic – Voting Rights Act
94
A2: DOJ Can Pay for Section 2 Claims
There is no evidence to support this argument
David Tatel, Senior Circuit Judge, May 2012, US Court of Appeals,
http://www.cadc.uscourts.gov/internet/opinions.nsf/D79C82694E572B4D85257A02004EC903/$file/11-52561374370.pdf
But the conclusion that section 2 is inadequate is Congress’s, not ours. The dissent believes that
the costs of section 2 actions can “be assumed by the Department of Justice,” id., but it cites
nothing in the record to support such speculation.
Planet Debate 2014
February PF Topic – Voting Rights Act
95
A2: Section 4(b) Only Deals with First Generation Problems
Not true
David Tatel, Senior Circuit Judge, May 2012, US Court of Appeals,
http://www.cadc.uscourts.gov/internet/opinions.nsf/D79C82694E572B4D85257A02004EC903/$file/11-52561374370.pdf
Shelby County makes two main arguments in response to this evidence. First, citing
Katzenbach’s finding that the coverage formula was “rational in both practice and theory,” 383
U.S. at 330, it contends that section 4(b) is irrational because it relies on “decades-old data.”
Appellant’s Br. 59. “It cannot be constitutional,” Shelby County insists, “to rely on decades-old
voting data to establish current voting discrimination.” In addition, the County claims that in 1965
Congress was concerned with “first-generation” barriers—tests and devices that denied access to
the ballot— and crafted the coverage formula to capture states that erected¶ such barriers and had
low registration rates. But in 2006, although Congress was more concerned with “secondgeneration” barriers—vote dilution techniques that weaken “minority voting effectiveness”—it
retained a coverage formula aimed at first-generation problems. Thus, Shelby County concludes,
“[t]here is a serious mismatch between the conduct targeted by Congress and the factors that
trigger coverage under Section 4(b).” This argument rests on a misunderstanding of the coverage
formula. As the district court explained, the election years that serve as coverage “triggers” under
section 4(b) “were never selected because of something special that occurred in those years.”
Shelby Cnty. Instead, Congress identified the jurisdictions it sought to cover—those for which it
had “evidence of actual voting discrimination,” Katzenbach, 383 U.S. at 329—and then worked
backward, reverse-engineering a formula to cover those jurisdiction (explaining that “Congress
began work with reliable evidence of actual voting discrimination in a great majority of the States
and political subdivisions affected by the new remedies of the Act” and that it “eventually
evolved” a formula “to describe these areas”). The coverage formula relied on tests and devices
“because of their long history as a tool for perpetrating the evil,” and voting rates because
“widespread disenfranchisement must inevitably affect the number of actual voters.” In other
words, Congress chose the section 4(b) criteria not because tests, devices, and low participation
rates were all it sought to target, but because they served as accurate proxies for pernicious racial
discrimination in voting. The question, then, is not whether the formula relies on old data or
techniques, but instead whether it, together with bail-in and bailout, continues to identify the
jurisdictions with the worst¶ problems. If it does, then even though the formula rests on decadesold factors, the statute is rational in theory because its “disparate geographic coverage” remains
“sufficiently related to the problem that it targets.”
Planet Debate 2014
February PF Topic – Voting Rights Act
96
A2: Congress Didn’t Make a ‘Finding’ of Racism When
Extending the VRA
Congress doesn’t have to make a finding to legislate
David Tatel, Senior Circuit Judge, May 2012, US Court of Appeals,
http://www.cadc.uscourts.gov/internet/opinions.nsf/D79C82694E572B4D85257A02004EC903/$file/11-52561374370.pdf
Shelby County’s first point—that Congress failed to make a finding—is easily answered.
Congress did not have to. United States v. Lopez, 514 U.S. 549, 562 (1995) (Congress “normally
is not required to make formal findings” in order to legislate). The proper question is whether the
record contains sufficient evidence to demonstrate that the formula continues to target
jurisdictions with the most serious problems. See Nw. Austin, 129 S. Ct. at 2512. This presents a
close question. The record on this issue is less robust than the evidence of continued
discrimination, see supra Part III.A, although this is in part due to the difficulty of comparing
jurisdictions that have been subject to two very different enforcement regimes,
i.e., covered jurisdictions are subject to both sections 2 and 5 while non-covered jurisdictions are
subject only to section 2. And although the Katz data in the aggregate does suggest that
discrimination is concentrated in covered jurisdictions, just three covered states—Alabama,
Louisiana, and Mississippi— account for much of the disparity. The covered states in the middle
of the pack—North Carolina, South Carolina, Virginia, Texas, and Georgia—are about on par
with the worst non-covered jurisdictions. And some covered states— Alaska and Arizona—had
no successful published section 2 cases at all.
Planet Debate 2014
February PF Topic – Voting Rights Act
97
A2: VRA Doesn’t Cover Every Discriminatory Jurisdiction
Those get bailed in
David Tatel, Senior Circuit Judge, May 2012, US Court of Appeals,
http://www.cadc.uscourts.gov/internet/opinions.nsf/D79C82694E572B4D85257A02004EC903/$file/11-52561374370.pdf
Critically, moreover, and as noted above, in determining whether section 5 is “sufficiently related
to the problem that it targets,” we look not just at the section 4(b) formula, but at the statute as a
whole, including its provisions for bail-in and¶ bailout. Bail-in allows jurisdictions not captured by
section 4’s coverage formula, but which nonetheless discriminate in voting, to be subjected to
section 5 preclearance. Thus, two non-covered states with high numbers of successful published
and unpublished section 2 cases—Arkansas and New Mexico—were subjected to partial
preclearance under the bail-in provision.
Planet Debate 2014
February PF Topic – Voting Rights Act
98
A2: Racial Redistricting Violates the 14A
No
David Tatel, Senior Circuit Judge, May 2012, US Court of Appeals,
http://www.cadc.uscourts.gov/internet/opinions.nsf/D79C82694E572B4D85257A02004EC903/$file/11-52561374370.pdf
We turn, finally, to the dissent’s argument that section 5 “requires a jurisdiction not only to
engage in some level of race-conscious decisionmaking, but also on occasion to sacrifice
principles aimed at depoliticizing redistricting.” Dissenting Op. at 4; see also Nw. Austin, 129 S.
Ct. at 2512 (explaining that “federalism concerns are underscored by the¶ argument that . . .
‘considerations of race that would doom a redistricting plan under the Fourteenth Amendment or
§ 2 seem to be what save it under § 5’ ” and that “[a]dditional constitutional concerns are raised
in saying that this tension between §§ 2 and 5 must persist in covered jurisdictions and not
elsewhere” (quoting Georgia v. Ashcroft, 539 U.S. at 491 (Kennedy, J., concurring))). According
to the dissent, this concern and the burden imposed by section 5 are aggravated by the
amendments to section 5 Congress added in conjunction with the 2006 reauthorization.
Dissenting Op. at 5–7; see also 2006 Act § 5.¶ The dissent’s thoughtful arguments face a serious
obstacle. Shelby County neither challenges the constitutionality of the 2006 amendments or even
argues that they increase section 5’s burdens, nor does it argue that section 5 requires covered
jurisdictions to undertake impermissible considerations of race. These issues, in other words, are
entirely unbriefed, and as we have repeatedly made clear, “appellate courts do not sit as selfdirected boards of legal inquiry and research, but essentially as arbiters of legal questions
presented and argued by the parties before them.” Where, as here, “counsel has made no attempt
to address the issue, we will not remedy the defect, especially where, as here, important questions
of far-reaching significance are involved.” Id. (internal quotation marks omitted).¶ Even were they
not forfeited, the dissent’s concerns would not have satisfied the standards for mounting a facial
constitutional challenge. Such a challenge, the Supreme Court has made clear, is “the most
difficult . . . to mount successfully, since the challenger must establish that no set of
circumstances exists under which the Act would be valid.Ӧ Yet the amendments, as well as the
Supreme Court’s concern that section 5 may sometimes require otherwise impermissible raceconscious decisionmaking, are implicated only in a subset of cases. Specifically, the amendment
overturning Bossier II is implicated only in cases involving a discriminatory but nonretrogressive purpose, see 42 U.S.C. §1973c(c); the amendments overturning Georgia v.
Ashcroft, like the Supreme Court’s concern about race-conscious decisionmaking, are implicated
primarily in redistricting cases where section 5 seems to require consideration of race as a “
‘predominant factor.’ ” See Nw. Austin, 129 S. Ct. at 2512 (quoting Georgia v. Ashcroft, 539
U.S. at 491 (Kennedy, J., concurring)); 42 U.S.C. § 1973c(b), (d). In other words, even assuming
the dissent is correct, it would not have established that “no set of circumstances exists under
which the Act would be valid,” Salerno, 481 U.S. at 745. Indeed, addressing the dissent’s
arguments would lead us into the very kind of “speculation” and “anticipat[ion]” of constitutional
questions that require courts to “disfavor[]” facial challenges. Wash. State Grange v. Wash. State
Republican Party, 552 U.S. 442, 450 (2008) (internal quotation marks omitted).
Planet Debate 2014
February PF Topic – Voting Rights Act
99
A2: Your Evidence is About Alabama, Not About Shelby
County
The decision applies to all of Alabama
Supreme Court Justice Ginsburg, 2013, (+ justices Breyer, Sotomayor, and Kagan, Shelby County v.
Holder, June 25,
http://www2.bloomberglaw.com/public/desktop/document/Shelby_Cnty_v_Holder_No_1296_2013_BL_1
67707_US_June_25_2013_Court)
This lawsuit was filed by Shelby County, a political subdivision of Alabama, rather than by the
State itself. Nevertheless, it is appropriate to judge Shelby County's constitutional challenge in
light of in stances of discrimination statewide because Shelby County is subject to § 5's
preclearance requirement by virtue of Alabama's designation as a covered jurisdiction under §
4(b) of the VRA. any event, Shelby County's recent record of employing an at-large electoral
system tainted by intentional racial discrimination is by itself sufficient to justify subjecting the
county to § 5's preclearance mandate. See infra, at 26.
Existence of pre-clearance requirements forced South Carolina to moderate
its voter ID law
Ellen D. Katz, law professor, University of Michigan, South Carolina's "Evolutionary Process", 113 COLUM. L. REV.
SIDEBAR 55 (2013), http://www.columbialawreview.org/wp-content/uploads/2013/03/55_Katz.pdf, p. 60-61
First, the South Carolina voter ID measure approved by the court last October is a different measure from the
one the state enacted the year before and from the one the state would have enacted in the absence of section 5.
Judge Bates wrote separately to make these points. He observed that "Act R54 as now pre-cleared is not the R54
enacted in May 2011," and characterized his observation as stating "the obvious." The measure, Judge Bates
explained, had undergone an "evolutionary process," as measures subject to preclearance often do, and this
process yielded a result that "accomplishes South Carolina's important objectives while protecting every individual's
right to vote and . . . address[ing] the significant concerns raised about Act R54's potential impact" on minority voters.
Judge Bates also posited that South Carolina would have enacted a "more restrictive" photo ID law had it not
been subject to the VRA's review process. He pointed out that "key ameliorative provisions were added during
that legislative process and were shaped by the need for pre-clearance," and that it was the state's "evolving
interpretations of these key provisions" that enabled the court to approve the statute.
Planet Debate 2014
February PF Topic – Voting Rights Act
100
A2: Section 2 Examples are Not Unconstitutional Examples
True, but they are examples of discrimination, nonetheless
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
Petitioner argues that the court of appeals erred by relying on Section 2 outcomes that did not
involve express findings of intentional discrimination. Some of the Section 2 cases Congress
considered did include such findings of unconstitutional dis- crimination. But because a court
need not make an express finding of intentional discrimination in order to find that a voting
practice violates Section 2, see 42 U.S.C. 1973—and because courts are appropriately reluctant to
make constitutional findings when other grounds will suffice to resolve a particular case—it is
unsurprising that there were not more judicial findings of unconstitutional conduct in the 2006
legislative record. And, although a finding of discriminatory effect does not always indicate an
underlying discriminatory purpose, the “totality of the circumstances” test employed in Section 2
effects cases is designed to identify facially neutral practices that are likely to be intentionally
discriminatory.
Planet Debate 2014
February PF Topic – Voting Rights Act
101
A2: Formula is Old/Shouldn’t Be Static
Jurisdictions that have complied with the Act for 10 years can bail out of
coverage. This means the application of the formula is not static and changes
over time
Supreme Court Justice Ginsburg, 2013, (+ justices Breyer, Sotomayor, and Kagan, Shelby County v.
Holder, June 25,
http://www2.bloomberglaw.com/public/desktop/document/Shelby_Cnty_v_Holder_No_1296_2013_BL_1
67707_US_June_25_2013_Court)
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.
The bailout provision means the formula is not static
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
Importantly, Congress retained the statutory bailout (and bail-in) provisions, such that a
jurisdiction’s status as a covered jurisdiction need not remain static. The constitutionality of the
VRA’s determination of covered jurisdictions can only be fairly judged in the context of the
statute as a whole, including the statute’s built-in mechanism for a jurisdiction to earn a change in
its sta- tus from covered to non-covered (or vice-versa). Cov- ered jurisdictions that can
demonstrate they have com- plied with specific nondiscrimination requirements for a ten-year
Planet Debate 2014
February PF Topic – Voting Rights Act
102
period can seek bailout. See 42 U.S.C. 1973a(c), 1973b(a); Supplemental Apps. A & B, infra
(listing jurisdictions that have been subject to preclearance under Section 3(c) or have terminated
coverage under Section 4(a)). This Court has consistently de- scribed bailout as a critical limiting
feature contributing to Section 5’s constitutionality, see City of Boerne, 521 U.S. at 533; South
Carolina, 383 U.S. at 331, but petitioner disregards the statute’s bailout feature. Moreover, this
Court’s recent decision in Northwest Austin significantly expanded the number of jurisdictions
eligible to apply for bailout—an expansion that has already made a material difference in the rate
at which nondiscriminating jurisdictions are opting out of Section 5, see Pet. App. 63a.6 Section 5
is unique among legislation enacted pursuant to Congress’s Reconstruction Amendments
authority in that it both requires Congress to reconsider the propriety of the legislation on a
regular basis, see 42 U.S.C. 1973b(a)(7) (“The Congress shall reconsider the provisions of this
section at the end of the fifteen-year period following the effective date of the [2006
reauthorization].”), and permits jurisdictions subject to the legislation to engage in self-help by
demonstrating that they no longer deserve to be covered.
Section 4(b) extension used new data and in combination with the bailout
provision means its modern
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. 286
In determining the constitutionality of Section 4(b), the D.C. Circuit also considered the statute's bailout and bail-in
features. The court noted that the bailout mechanism "'reduce[d] the possibility of overbreadth,'" which "'ensure[d]
Congress'[s] means [were] proportionate to [its] ends.'" Although Section 4(b)'s coverage formula uses old voting data,
when supplemented with the legislative record and the bail-in and bailout provisions of the statute, the court concluded
that the statute's geographic coverage area sufficiently related to the problem of voter discrimination. Shelby County
appealed the Circuit Court's decision to the Supreme Court under the Fifteenth Amendment. The Supreme Court
granted certiorari to determine whether Congress exceeded "its authority under the Fourteenth and Fifteenth
Amendments" by reauthorizing Section 5 of the Act under the "pre-existing coverage formula of Section 4(b)."
Exact calculation in Section 4(b) isn’t relevant because it was reverse
engineered
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. 291
The Attorney General argues that Section 4(b)'s coverage formula continues to target the jurisdictions with the most
frequent instances of voting discrimination. The Government dismisses the importance of the data used in the formula
because Congress "'reverse-engineer[ed]' the coverage criteria in Section 4(b) to describe in objective terms those
jurisdictions Congress already knew it wanted to cover." The important question in 2006 was not about the need to
update the coverage criteria, but whether Section 5 was still needed in the covered jurisdictions, which Congress
answered in the affirmative. The Attorney General notes that if Section 5 preclearance was unnecessary then covered
jurisdictions should have fewer successful Section 2 lawsuits than non-covered jurisdictions, yet this is not what
Congress found.
The coverage formula is not static in and of itself
Justin Levitt is a Visiting Associate Professor of Law at Yale Law School and an Associate Professor at Loyola
Law School in Los Angeles, The Yale Law Journal Online, June 7, 2013, The Yale Law Journal Online, Section 5 as
Simulacrum, http://yalelawjournal.org/2013/06/07/levitt.html.
p. 155-6
Planet Debate 2014
February PF Topic – Voting Rights Act
103
The second is the presumption of stasis: a printed edition of a road map is incapable of incorporating new
information. Again, this is not the case for coverage under the actual preclearance regime. Though the coverage formula
was developed in 1965, it was designed from the outset to be adaptive, with the extent of coverage changing in response
to changing circumstances. The two-part standard above (covering areas where voting was contingent upon the use of a
test or device, and which had less than fifty percent registration or turnout) is only the start of the formula. To that are
added the section 3 bail-in and the section 4 bailout provisions. Hundreds of jurisdictions that once had a responsibility
to preclear election laws no longer must do so; many jurisdictions not covered in 1965 were later covered by extension
of the statute, and eighteen jurisdictions have been (temporarily) covered by judicial order. As facts on the ground
demonstrate that jurisdictions should be subject to preclearance or free from preclearance, coverage is designed to
expand and contract. This answers the objection that Congress should have developed a new formula in 2006 based on
new information, and that any pre-existing formula is necessarily outdated. In reality, the bail-in and bailout
mechanisms mean that the "old" formula continually encompasses new information. A jurisdiction is now covered if it
was once covered (old formula) and has not bailed out (new information); a jurisdiction is not covered now if it was not
covered (old formula) and has not been bailed in (new information). Bail-in and bailout are necessary components of the
coverage determination, but are largely absent from the section 5 simulacrum. Looking at the coverage determination
holistically, it is apparent that the list of covered jurisdictions is just as much the product of current determinations as it
is the product of decisions from 1965. Both of these measures--and all other numerical distinctions based on votingrelated outcomes between covered and non-covered jurisdictions --ask fundamentally the wrong question. The issue is
not whether Congress had sufficient reason to believe that covered jurisdictions were meaningfully different from noncovered jurisdictions in 2006. The real issue is whether Congress had sufficient reason to believe, based on past
practice, that covered jurisdictions would be meaningfully different from non-covered jurisdictions without a
preclearance regime. In the Chief Justice's terms, the question is whether 2006 evidence showed a likelihood of greater
harm to minority participation in Mississippi than Massachusetts--in the absence of section 5. Only this latter question
gets to the heart of the extent to which the coverage of the preclearance regime is tailored to Congress's objectives.
Even under renewal, section 5 wasn’t meant to last forever
Justin Levitt is a Visiting Associate Professor of Law at Yale Law School and an Associate Professor at Loyola Law
School in Los Angeles, The Yale Law Journal Online, June 7, 2013, The Yale Law Journal Online, Section 5 as
Simulacrum, http://yalelawjournal.org/2013/06/07/levitt.html.
There are three related flaws at the heart of this cartoon. The first is the presumption of indefinite life: the paper upon
which a road map is printed may eventually deteriorate, but it does not evaporate on a specified date. Similarly, the
simulacrum seems devoted to the notion that section 5 will for all practical purposes linger indefinitely. But this does
not describe the actual preclearance regime under challenge. The provision before the Court must be reconsidered in
2021, and expires in 2031. Congress was either justified in crafting a preclearance provision for this period or it was
not. There is no basis for considering the speculative political calculus of a future Congress, much less the factual
predicate of a future decade, in assessing the constitutionality of the actual statute in question.
Planet Debate 2014
February PF Topic – Voting Rights Act
104
A2: Bail Out Impossible (It’s Static)
Jurisdictions have bailed out
David Tatel, Senior Circuit Judge, May 2012, US Court of Appeals,
http://www.cadc.uscourts.gov/internet/opinions.nsf/D79C82694E572B4D85257A02004EC903/$file/11-52561374370.pdf
Bailout plays an even more important role in ensuring that section 5 covers only those
jurisdictions with the worst records of racial discrimination in voting. As the Supreme Court
explained in City of Boerne, the availability of bailout “reduce[s] the possibility of overbreadth”
and helps “ensure Congress’ means are proportionate to [its] ends.” (“Acknowledging the
possibility of overbreadth, the Act provides for termination of special statutory coverage at the
behest of States and political subdivisions in which the danger of substantial voting
discrimination has not materialized during the preceding five years.”). As of May 9, 2012, having
demonstrated that they no longer discriminate in voting, 136 jurisdictions and sub-jurisdictions
had bailed out, including 30 counties, 79 towns and cities, 21 school boards, and 6 utility or
sanitary districts. n fact, by ruling in Northwest Austin that any jurisdiction covered by section 5
could seek bailout—a development unmentioned by the dissent—the Supreme Court increased
significantly the extent to which bailout helps “ensure Congress’ means are proportionate to [its]
ends,” Boerne, 521 U.S. at 533. See Nw. Austin, 129 S. Ct. at 2516 (holding that “all political
subdivisions—not only those described in § 14(c)(2)—are eligible to file a bailout suit”). Not
surprisingly, then, the pace of bailout increased after Northwest Austin: of the successful bailout
actions since 1965, 30 percent occurred in the three years after the Supreme Court issued its
decision in 2009. See DOJ Bailout List,h
ttp://www.justice.gov/crt/about/vot/misc/sec_4.php#bailout_ list. Also, the Attorney General “has
a number of active bailout investigations, encompassing more than 100 jurisdictions and
subjurisdictions from a range of States.” Br. for Att’y Gen. as Appellee at 47–48, LaRoque v.
Holder, No. 11-5349 (D.C. Cir. May 18, 2012).¶ The importance of this significantly liberalized
bailout mechanism cannot be overstated. Underlying the debate over the continued need for
section 5 is a judgment about when covered jurisdictions—many with very bad historic records of
racial discrimination in voting—have changed enough so that case-by-case section 2 litigation is
adequate to protect the right to vote. Bailout embodies Congress’s judgment on this question:
jurisdictions originally covered because of their histories of discrimination can escape section 5
preclearance by demonstrating a clean record on voting rights for ten years in a row. See 42
U.S.C. § 1973b(a)(1) (bailout criteria). As the House Report states, “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.” Bailout thus
helps to ensure that section 5 is “sufficiently related to the problem that it targets,” Nw. Austin,
129 S. Ct. at 2512.¶ Shelby County complains that bailout helps only “at the margins,”
Appellant’s Br. 53; see also Dissenting Op. at 29, and the dissent emphasizes that only about 1
percent of covered jurisdictions and subjurisdictions have applied for bailout, Dissenting Op. at
29. But absent evidence that there are “clean” jurisdictions that would like to bail out but cannot
meet the standards, the low bailout rate tells us nothing about the effectiveness of the bailout
provision. See Shelby Cnty., 811 F. Supp. 2d at 500–01 (describing “several plausible
explanations for th[e] failure to seek bailout,” including “the minimal administrative cost
associated with preclearance, and the fact that covered jurisdictions see no need to avoid the
preclearance requirement”). As the dissent concedes, since 1982 no bailout application has been
denied, Dissenting Op. at 29, and Congress considered evidence that the bailout criteria “are
Planet Debate 2014
February PF Topic – Voting Rights Act
105
easily proven for jurisdictions that do not discriminate in their voting practices.” Voting Rights
Act: An Examination of the Scope and Criteria for Coverage Under the Special Provisions of the
Act: Hearing Before the Subcomm. on the Constitution of the H. Comm. on the Judiciary, 109th
Cong. 90 (2005). The dissent speculates that “opaque standards” may prevent bailouts, Dissenting
Op. at 29, but neither it nor Shelby County specifically challenges Congress’s definition of what
constitutes a clean jurisdiction or how the Attorney General is applying the bailout criteria. In
fact, as noted above, Shelby County never even tried to bail out and has brought only a facial
challenge. If something about the bailout criteria themselves or how the Attorney General is
applying them is preventing jurisdictions with clean records from escaping section 5
preclearance, those¶ 60¶ criteria can be challenged in a separate action brought by any adversely
affected jurisdiction. See United States v. Salerno, 481 U.S. 739, 745 (1987) (explaining that in a
facial challenge, “[t]he fact that [a law] might operate¶ unconstitutionally under some conceivable
set circumstances is insufficient to render it wholly invalid”).
Bailout provision means jurisdictions could leave the VRA as long as changes
occurred
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.
Ironically, Chief Justice Roberts and Justice Scalia (who joined the majority opinion along with Justices Alito, Thomas
and Kennedy) premised their decision on the Court's authority to override legislative findings after arguing for years
that the role of the Supreme Court is limited and deferential to Congress. The Court invalidated a statute that had been
repeatedly re-authorized by huge margins in Congress, including unanimously by the 2006 Senate, after 21 days of
hearings and 15,000 pages in the Congressional Record. Furthermore, the notion that a dated coverage formula resulted
in jurisdictions unnecessarily being subjected to preclearance is undermined by the "bail-out" provision by which
jurisdictions without recent voting law violations could apply to leave DOJ oversight. The Court's decision leaves a
major void in the protection of minority voting rights, a concern the majority curtly dismisses by citing increased
minority voter registration figures and other handpicked statistics.
Planet Debate 2014
February PF Topic – Voting Rights Act
106
A2: Federalism/States Rights
Courts should defer to protecting individual rights, not states’ rights. States
can protect their rights through the political process
Suzanna Sherry, Herman O. Loewenstein Professor of Law, Vanderbilt University, Summer 2013, MICROSYMPOSIUM: SUZANNA SHERRY'S "WHY WE NEED MORE JUDICIAL ACTIVISM": A RESPONSE TO
COMMENTS ON "JUDICIAL ACTIVISM" LIBERTY'S SAFETY NET, Green Bag, p. 471
Parsing activism in the way that Dodson suggests is also consistent with the Court's role as a counter-majoritarian
institution protecting against majority tyranny. The states do not need the courts' protection. As Herbert Wechsler
pointed out almost sixty years ago, the states are protected by the political safeguards of federalism. And as Jesse
Choper noted more than thirty years ago, Wechsler's insight suggests that there is little or no justification for the courts
to police federalism boundaries, and thus that the Court should not review federalism-based challenges to congressional
action at all, much less do so aggressively. n8 I take Dodson as reiterating both Wechsler's and Choper's points, and I
have no quarrel with the idea in principle although I think it might be difficult to implement in practice because
federalism principles and individual rights sometimes intersect.
2012 election irrelevant to local, below the radar election law changes
Stephen Ansolabehere is Professor of Government at Harvard University; Nathaniel Persily is the Charles
Keller Beekman Professor of Law and Political Science at Columbia Law School; and Charles Stewart III
is the Kenan Sahin Distinguished Professor of Political Science at the Massachusetts Institute of
Technology, 2013, REGIONAL DIFFERENCES IN RACIAL POLARIZATION IN THE 2012
PRESIDENTIAL ELECTION: IMPLICATIONS FOR THE CONSTITUTIONALITY OF SECTION 5 OF
THE VOTING RIGHTS ACT, Harvard Law Review Forum, 126 Harv. L. Rev. F. 205, p. 206
These contrasting views of the relevance of the 2012 election may very well provide the media frame for the debate
over section 5 in the current challenge to the VRA in Shelby County v. Holder. Of course, the contending narratives of
"look how far we've come" versus "see how much voting discrimination persists" are usually not the stuff of
constitutional arguments. Moreover, the results of a highly salient and well-funded presidential election may seem
beside the point for the constitutionality of a law that has its greatest effect in the context of local, below-the-radar
election law changes.
Congress clearly has the power as part of its Thirteenth Amendment
authority
Justin Levitt is a Visiting Associate Professor of Law at Yale Law School and an Associate Professor at Loyola Law
School in Los Angeles, The Yale Law Journal Online, June 7, 2013, The Yale Law Journal Online, Section 5 as
Simulacrum, http://yalelawjournal.org/2013/06/07/levitt.html.
p. 171-2
The critical distinction is the source of section 5's authority. Most of the Court's recent constitutional race cases
address Fourteenth Amendment challenges to states' race-conscious decisions. The federalism cases are more varied;
some concern Congress's Article I power (either the extent of that power or the means by which Congress may conscript
state entities to execute it), while some concern federal attempts to open state treasuries or redefine constitutional harm
under the Fourteenth Amendment. None of these recent cases, however, examines Congress's attempt to enforce the
narrow mandate of the Fifteenth Amendment, which provides an unquestioned predicate for section 5.
The Fifteenth Amendment expressly grants Congress the power--and the responsibility--to ensure that states do not
deny or abridge the right to vote on account of race. There are remarkably few ways to enforce that mandate that
involve neither attention to race nor imposition on state autonomy. If the Court's general skepticism about race-
Planet Debate 2014
February PF Topic – Voting Rights Act
107
consciousness and federal impositions on state autonomy (and its consequent willingness to closely scrutinize such
measures) is legitimate, it must be grounded in a sense that such action runs contrary to the constitutional command in
its normal course. Here, in the discrete context of access to political power, the Fifteenth Amendment affirmatively
authorizes what the Court normally finds constitutionally troublesome.
The Fifteenth Amendment also occupies a distinct position in the constitutional structure. Consider its predecessor.
Whatever the 1868 conception of the Fourteenth Amendment may have been, our modern understanding of its equal
protection mandate plainly embraces a prohibition on racial discrimination in voting, just as in every other public
enterprise. n65 If the Fifteenth Amendment accomplished nothing more, it would have become a mere constitutional
artifact. I use the subjunctive tense, because the mooting of a constitutional amendment is, at the very least, an unusual
idea. Constitutional provisions have been expressly repealed (e.g., the Eighteenth Amendment) or specifically
superseded (e.g., the election of the Vice President by selecting the runner-up in presidential ballots), but to be simply
subsumed by an earlier enactment, to fade away from meaning? n66 Such a result is anomalous, and possibly wrong.
This offers good reason to believe that the Fifteenth Amendment provides content beyond that contained in the
Fourteenth Amendment. Although a full exploration of the Fifteenth Amendment's distinctive substance presents
numerous conceptual challenges well beyond the scope of this Essay, the enforcement power granted to Congress may
be a good place to start. This power cannot be merely identical to power already granted by its constitutional
predecessor.
Both text and structure therefore indicate that in Congress's exercise of its Fifteenth Amendment enforcement
power, race-conscious federal requirements of states should prompt deference, not close scrutiny. When Congress
enforces the Fifteenth Amendment, it acts pursuant to an enumerated power, not contrary to a constitutional prohibition.
The appropriate inquiry is therefore not whether the 2006 reenactment is suboptimally tailored, but rather whether it is
sufficiently tailored; there is no constitutional cause for a least-restrictive-means test here.
To be sure, the deference due Congress is not unlimited. The Court should properly police a rough congruence
between Congress's means and the constitutional end. Congress may not, for example, enforce the prohibition against
racial discrimination in the franchise by prohibiting the purchase of electronic voting machines--at least, not without a
record establishing that such machines have been or are likely to be used to foster racial discrimination. But this last
caveat makes the relevant point: once Congress establishes a relevant constitutional harm, and establishes a reasonable
tie between that harm and its preferred deterrent or remedy, there is no constitutional reason for the Court to import its
skepticism from other constitutional contexts into legislation premised on the Fifteenth Amendment. Further pushback
would only defend the objects of congressional attention from the Constitution.
Courts never consistently protect federalism
Bertrall L. Ross II, Assistant Professor of Law, December 2013, University of California, Berkeley School
of Law, California Law Review, Democracy and Renewed Distrust: Equal Protection and the Evolving
Judicial Conception of Politics, p. 637-8
A third potential explanation for the shift in the Court's equal protection jurisprudence is its changing orientation
toward federalism. Federalism doctrine, which defines the relationship between federal and state power in our dual
constitutional structure, has constantly evolved as a result of changes to the composition of the Court. Since the 1950s,
the conventional account is that the Warren Court devalued the importance of state prerogatives and that the later
Burger, Rehnquist, and Roberts Courts were much more protective of these prerogatives.
Ultimately, the conventional account of this broader constitutional evolution toward federalism is oversimplified
and incomplete as an explanation of the shifts in the Court's equal protection jurisprudence. It is oversimplified because
the Court's federalism jurisprudence did not evolve in a consistent and coherent manner. Both qualitative and
quantitative studies of the three Courts' jurisprudence point to important inconsistencies in the application of federalism
doctrine that suggest something other than a concern about the limits of federal power animated judicial decisions.
It is also incomplete because many aspects of the Court's evolving equal protection jurisprudence simply do not
map onto the conventional account of its evolving federalism jurisprudence. For example, the Rehnquist Court directed
greater scrutiny toward actions by the States that benefitted racial minorities than the Warren Court. In between, the
Burger Court proved much less deferential to state-enacted affirmative action programs than to federally enacted
affirmative action programs. Missing from the analyses in the affirmative cases of the more conservative Courts was
any assessment of the federalism harms of the decisions or any efforts to reconcile the cases with the Court's other
federalism jurisprudence.
Planet Debate 2014
February PF Topic – Voting Rights Act
108
A second example is the Rehnquist Court's treatment of federal legislation protecting other groups, such as the
disabled and the aged. While the Court, consistent with the conventional account of its federalism jurisprudence, placed
limits on congressional Section 5 authority, it did not limit congressional authority to enact these statutes through the
Commerce Clause. As a result, individuals could not sue the State for damages for violations of civil rights statutes, but
the federal government still could. The distinction between who has the authority to sue the States cannot be explained
on purely federalism grounds, as both sources of suit would infringe state sovereignty.
In the middle of the twentieth century (the 1900s), the Supreme Court largely
deferred to federal authority in this area.
Bertrall L. Ross II, Assistant Professor of Law, December 2013, University of California, Berkeley School of Law,
California Law Review, Democracy and Renewed Distrust: Equal Protection and the Evolving Judicial Conception of
Politics, p. 1586-7
In the middle of the twentieth century, the Warren Court continued to defer to Congress's exercises of its enforcement
powers. It also deferred to congressional intrusion into areas of traditional state sovereignty aimed at providing
considerably greater protection to minorities than that mandated under the Constitution. For example, in South Carolina
v. Katzenbach and Katzenbach v. Morgan, the Court deferred to Congress's exercise of its Fourteenth and Fifteenth
Amendment enforcement powers to enact the VRA, which dramatically intruded into traditional state sovereignty to
protect racial minority voting rights. In both cases, a liberal majority applied a constitutional standard granting Congress
broad power to pass "whatever legislation is appropriate [and] adapted to carry out the objectives" of the Reconstruction
Amendments. The message from these cases was that democratic actions were entitled to judicial trust when the actions
protected the rights of the marginalized.
Planet Debate 2014
February PF Topic – Voting Rights Act
109
A2: No Justification for Grouping States
Many preclearance jurisdictions suffer from similar problems
Supreme Court Justice Ginsburg, 2013, (+ justices Breyer, Sotomayor, and Kagan, Shelby County v.
Holder, June 25,
http://www2.bloomberglaw.com/public/desktop/document/Shelby_Cnty_v_Holder_No_1296_2013_BL_1
67707_US_June_25_2013_Court)
Although the VRA wrought dramatic changes in the realization of minority voting rights, the Act,
to date, surely has not eliminated all vestiges of discrimination against the exercise of the
franchise by minority citizens. Jurisdictions covered by the preclearance requirement continued to
submit, in large numbers, proposed changes to voting laws that the Attorney General declined to
approve, auguring that barriers to minority voting would quickly resurface were the preclearance
remedy eliminated. City of Rome v. United States, 446 U. S. 156, 181 (1980). Congress also
found that as "registration and voting of minority citizens increas[ed], other measures may be
resorted to which would dilute increasing minority voting strength." Ibid. (quoting H. R. Rep. No.
94-196, p. 10 (1975)). See also Shaw v. Reno, 509 U. S. 630, 640 (1993) ("[I]t soon became
apparent that guaranteeing equal access to the polls would not suffice to root out other racially
discriminatory voting practices" such as voting dilution). Efforts to reduce the impact of minority
votes, in contrast to direct attempts to block access to the ballot, are aptly described as "secondgeneration barriers" to minority voting. [*2635]
Racism in elections remains concentrated in particular areas
David Tatel, Senior Circuit Judge, May 2012, US Court of Appeals,
http://www.cadc.uscourts.gov/internet/opinions.nsf/D79C82694E572B4D85257A02004EC903/$file/11-52561374370.pdf
The most concrete evidence comparing covered and non- covered jurisdictions in the legislative
record comes from a study of section 2 cases published on Westlaw or Lexis between 1982 and
2004. Impact and Effectiveness 964–1124 (report by Ellen Katz et al.). Known as the Katz study,
it reached two key findings suggesting that racial discrimination in voting remains “concentrated
in the jurisdictions singled out for preclearance,” Nw. Austin, 129 S. Ct. at 2512. First, the study
found that of the 114 published decisions resulting in outcomes favorable to minority plaintiffs,
64 originated in covered jurisdictions, while only 50 originated in non-covered jurisdictions.
Thus, although covered jurisdictions account for less than 25 percent of the country’s population,
they accounted for 56 percent of successful section 2 litigation since 1982. Impact and
Effectiveness 974; see also H.R. Rep. No. 109-478, at 53. When the Katz data is adjusted to
reflect these population differences (based on the Census Bureau’s 2004 population estimates, the
most recent data then available to Congress), the rate of successful section 2 cases in covered
jurisdictions (.94 per million residents) is nearly four times the rate in non-covered jurisdictions
(.25 per million¶ residents), as illustrated in the chart below. See Ellen Katz & The Voting Rights
Initiative, VRI Database Master List (2006), http://sitemaker.umich.edu/votingrights/files/master
list.xls; U.S. Dep’t of Justice, Section 5 Covered Jurisdictions,
http://www.justice.gov/crt/about/vot/sec_5/ covered.php (last visited May 9, 2012); U.S. Census
Bureau, Annual Estimates of the Population for the United States and States, and for Puerto Rico:
April 1, 2000 to July 1, 2004, available at http://www.census.gov/popest/data/historical/
2000s/vintage_2004/state.html (last visited May 9, 2012); U.S. Census Bureau, Annual Estimates
of the Resident Population for Counties: April 1, 2000 to July 1, 2004, available at
Planet Debate 2014
February PF Topic – Voting Rights Act
110
http://www.census.gov/popest/data/counties/ totals/2004/CO-EST2004-01.html (last visited May
9, 2012); U.S. Census Bureau, Population Estimates: Minor Civil Divisions: 2000 to 2004,
available at http://www.census.gov/ popest/data/cities/totals/2004/SUB-EST2004-5.html (last
visited May 9, 2012).¶ Second, the study found higher success rates in covered jurisdictions than
in non-covered jurisdictions. Specifically, 40.5 percent of published section 2 decisions in
covered jurisdictions resulted in favorable outcomes for plaintiffs, compared to only 30 percent in
non-covered jurisdictions. Impact and Effectiveness 974.¶ The difference between covered and
non-covered jurisdictions becomes even more pronounced when unpublished section 2
decisions—primarily court-approved settlements—are taken into account. As the Katz study
noted, published section 2 lawsuits “represent only a portion of the section 2 claims filed or
decided since 1982” since many claims were settled or otherwise resolved without a published
opinion. Id. at 974. According to data compiled by the National Commission on the Voting
Rights Act and Justice Department historian Peyton McCrary, there have been at least 686
unpublished successful section 2 cases since 1982, amounting to a total of some 800 published
and unpublished cases with favorable outcomes for minority voters. See Decl. of Dr. Peyton
McCrary 13 (“McCrary Decl.”). Of these, approximately 81 percent were filed in covered
jurisdictions. Id. When this data is broken down state-by-state, separately identifying covered and
non-covered portions of partially covered states, the concentration of successful section 2 cases in
the covered jurisdictions is striking. Of the eight states with the highest number of successful
published and unpublished section 2 cases per million residents—Alabama, Mississippi,
Arkansas, Texas, South Carolina, Georgia, and the covered portions of South Dakota and North
Carolina—all but one are covered. See Supp. Decl. of Dr. Peyton McCrary 3–7; U.S. Dep’t of
Justice, Section 5 Covered Jurisdictions, http://www.justice.gov/crt/about/vot/sec_5/covered.php
(last visited May 9, 2012); U.S. Census Bureau, Annual Estimates¶ of the Population for the
United States and States, and for Puerto Rico: April 1, 2000 to July 1, 2004, available at
http://www.census.gov/popest/data/historical/2000s/vintage _2004/state.html (last visited May 9,
2012); U.S. Census Bureau, Annual Estimates of the Resident Population for Counties: April 1,
2000 to July 1, 2004, available at http://www.census.gov/popest/data/counties/totals/2004/COEST2004-01.html (last visited May 9, 2012); U.S. Census Bureau, Population Estimates: Minor
Civil Divisions: 2000 to 2004, available at http://www.census.gov/popest/data/cities/
totals/2004/SUB-EST2004-5.html (last visited May 9, 2012). The only exception is Arkansas,
which, though not captured by section 4(b), was subjected to partial preclearance pursuant to a
1990 federal court order, i.e., “bailed in.” See Jeffers v. Clinton, 740 F. Supp. 585, 601–02 (E.D.
Ark. 1990). Similarly, of the fourteen states with the highest number of successful published and
unpublished section 2 cases per million residents—the eight listed above, plus Montana,
Louisiana, New Mexico, Virginia, and the non-covered portions of South Dakota and North
Carolina—eleven are either covered, including the seven states originally covered by the 1965
Act, or were bailed in for some period (Arkansas and New Mexico). See Travis Crum, Note, The
Voting Rights Act’s Secret Weapon: Pocket Trigger Litigation and Dynamic Preclearance, 119
Yale L.J. 1992, 2010 & nn.100–01 (2010) (discussing bail-in of Arkansas and New Mexico). This
data is displayed in the chart on the following page.
Planet Debate 2014
February PF Topic – Voting Rights Act
111
A2: States Must Be Treated Equally
The dictum that states must be treated equally applies only to their admission
to the union
Supreme Court Justice Ginsburg, 2013, (+ justices Breyer, Sotomayor, and Kagan, Shelby County v.
Holder, June 25,
http://www2.bloomberglaw.com/public/desktop/document/Shelby_Cnty_v_Holder_No_1296_2013_BL_1
67707_US_June_25_2013_Court)
The Court stops any application of § 5 by holding that § 4(b)'s coverage formula is
unconstitutional. It pins this result, in large measure, to "the fundamental principle of equal
sovereignty." In Katzenbach, however, the Court held, in no uncertain terms, that the principle
"applies only to the terms upon which States are admitted to the Union, and not to the remedies
for local evils which have subsequently appeared Katzenbach, the Court acknowledges, "rejected
the notion that the [equal sovereignty] principle operate[s] as a bar on differential treatment
outside [the] context [of the admission of new States]." But the Court clouds that once clear
understanding by citing dictum from Northwest Austin to convey that the principle of equal
sovereignty "remains highly pertinent in assessing subsequent disparate treatment of States." See
also ante, at 23 (relying on Northwest Austin's "emphasis on [the] significance" of the equalsovereignty principle). If the Court is suggesting that dictum in Northwest Austin silently
overruled Katzenbach's limitation of the equal sovereignty doctrine to "the admission of new
States," the suggestion is untenable. Northwest Austin cited Katzenbach's holding in the course of
declining to decide whether the VRA was constitutional or even what standard of review applied
to the question. In today's decision, the Court ratchets up what was pure dictum in Northwest
Austin, attributing breadth to the equal sovereignty principle in flat contradiction of Katzenbach.
The Court does so with nary an explanation of why it finds Katzenbach wrong, let alone any
discussion of whether stare decisis nonetheless counsels adherence to Katzenbach's ruling on the
limited "significance" of the equal sovereignty principle. Today's unprecedented extension of the
equal sovereignty principle outside its proper domain — the admission of new States — is
capable of much mischief. Federal statutes that treat States disparately are hardly novelties. See,
e.g., 28 U. S. C. § 3704 (no State may operate or permit a sports-related gambling scheme, unless
that State conducted such a scheme "at any time during the period beginning January 1, 1976, and
ending August 31, 1990"); 26 U. S. C. § 142(l) (EPA required to locate green building project in
a State meeting specified population criteria); 42 U. S. C. § 3796bb (at least 50 percent of rural
drug enforcement assistance funding must be allocated to States with "a population density of
fifty-two or fewer persons per square mile or a State in which the largest county has fewer than
one hundred and fifty thousand people, based on the decennial census of 1990 through fiscal year
1997"); §§ 13925, 13971 (similar population criteria for funding to combat rural domestic
violence); § 10136 (specifying rules applicable to Nevada's Yucca Mountain nuclear waste site,
and providing that "[n]o State, other than the State of Nevada, may receive financial assistance
under this subsection after December 22, 1987"). Do such provisions remain safe given the
Court's expansion of equal sovereignty's sway? Of gravest concern, Congress relied on our
pathmarking Katzenbach decision in each reauthorization of the VRA. It had every reason to
believe that the Act's limited geographical scope would weigh in favor of, not against, the Act's
constitutionality. See, e.g., United States v. Morrison, 529 U. S. 598, 626-627 (2000) (confining
preclearance regime to States with a record of discrimination bolstered the VRA's
constitutionality). Congress could hardly have foreseen that the VRA's limited geographic reach
Planet Debate 2014
February PF Topic – Voting Rights Act
112
would render the Act constitutionally suspect. See Persily 195 ("[S]upporters of the Act sought to
develop an evidentiary record for the principal purpose of explaining why the covered
jurisdictions should remain covered, rather than justifying the coverage of certain jurisdictions
but not others."). In the Court's conception, it appears, defenders of the VRA could not prevail
upon showing what the record overwhelmingly bears out, i.e., that there is a need for continuing
the preclearance regime in covered States. In addition, the defenders would have to disprove the
existence of a comparable need elsewhere. See Tr. of Oral Arg. 61-62 (suggesting that proof of
egregious episodes of racial discrimination in covered jurisdictions would not suffice to carry the
day for the VRA, unless such episodes are shown to be absent elsewhere). I am aware of no
precedent for imposing such a double burden on defenders of legislation.
The preclearance formula was also designed to prevent a reversion to old ways
Supreme Court Justice Ginsburg, 2013, (+ justices Breyer, Sotomayor, and Kagan, Shelby County v.
Holder, June 25,
http://www2.bloomberglaw.com/public/desktop/document/Shelby_Cnty_v_Holder_No_1296_2013_BL_1
67707_US_June_25_2013_Court)
The Court has time and again declined to upset legislation of this genre unless there was no or
almost no evidence of unconstitutional action by States. See, e.g., City of Boerne v. Flores, 521
U. S. 507, 530 (1997) (legislative record "mention[ed] no episodes [of the kind the legislation
aimed to check] occurring in the past 40 years"). No such claim can be made about the
congressional record for the 2006 VRA reauthorization. Given a record replete with examples of
denial or abridgment of a paramount federal right, the Court should have left the matter where it
belongs: in Congress' bailiwick. Instead, the Court strikes § 4(b)'s coverage provision because, in
its view, the provision is not based on "current conditions." It discounts, however, that one such
condition was the preclearance remedy in place in the covered jurisdictions, a remedy Congress
designed both to catch discrimination before it causes harm, and to guard against return to old
ways. 2006 Volumes of evidence supported Congress' determination that the prospect of
retrogression was real. Throwing out preclearance when it has worked and is continuing to work
to stop discriminatory changes is like throwing away your umbrella in a rainstorm because you
are not getting wet.
Just because Congress chose not to change the formula does not mean that it is
no longer relevant
Supreme Court Justice Ginsburg, 2013, (+ justices Breyer, Sotomayor, and Kagan, Shelby County v.
Holder, June 25,
http://www2.bloomberglaw.com/public/desktop/document/Shelby_Cnty_v_Holder_No_1296_2013_BL_1
67707_US_June_25_2013_Court)
Congress' chore was different in 1965 than it was in 2006. In 1965, there were a "small number of
States . . . which in most instances were familiar to Congress by name," on which Congress fixed
its attention. Katzenbach, 383 U. S., at 328. In drafting the coverage formula, "Congress began
work with reliable evidence of actual voting discrimination in a great majority of the States" it
sought to target. Id., at 329. "The formula [Congress] eventually evolved to describe these areas"
also captured a few States that had not been the subject of congressional factfinding. Ibid.
Nevertheless, the Court upheld the formula in its entirety, finding it fair "to infer a significant
Planet Debate 2014
February PF Topic – Voting Rights Act
113
danger of the evil" in all places the formula covered. The situation Congress faced in 2006, when
it took up reauthorization of the coverage formula, was not the same. By then, the formula had
been in effect for many years, and all of the jurisdictions covered by it were "familiar to Congress
by name." The question before Congress: Was there still a sufficient basis to support continued
application of the preclearance remedy in each of those already-identified places? There was at
that point no chance that the formula might inadvertently sweep in new areas that were not the
subject of congressional findings. And Congress could determine from the record whether the
jurisdictions captured by the coverage formula still belonged under the preclearance regime. If
they did, there was no need to alter the formula. That is why the Court, in addressing prior
reauthorizations of the VRA, did not question the continuing "relevance" of the formula.
Discrimination is not evenly distributed - -the number of Section 2 cases
proves
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. 285-6
Next, the D.C. Circuit considered whether the statute's geographic coverage was sufficiently related to the targeted
problem. The D.C. Circuit used a study by Ellen Katz from the legislative record to compare the occurrence of
discriminatory voting laws in covered and non-covered jurisdictions. By adjusting the data in the Katz study to account
for population differences between states, the court found that the rate of successful Section 2 cases in covered
jurisdictions was nearly four times higher than in non-covered jurisdictions. The D.C. Circuit also looked at
unpublished Section 2 cases, which were primarily court-approved settlements, in both covered and non-covered
jurisdictions over the objections of Shelby County. The court found that eleven of the top fourteen states with the
highest combined number of successful Section 2 cases from 1982 to 2004 were covered states. The court concluded
that "if discrimination were evenly distributed throughout the nation, [there would be] fewer successful [S]ection 2
cases in covered jurisdictions than in non-covered jurisdictions," yet there were "substantially more."
Planet Debate 2014
February PF Topic – Voting Rights Act
114
A2: Dignity of the States
Supporting the “dignity of the states” ignores the fact that the states are
different and that the southern states did engage in racist electoral practices
Joseph Fishkin is an Assistant Professor, University of Texas School of Law, June 8, 2013, Yale Law Journal Online,
The Dignity of the South, http://yalelawjournal.org/2013/06/08/fishkin.html.
p. 192-3
I doubt very much that the Justices' motives match those of past advocates for the "dignity" of the South from either
the end of Reconstruction or the era of massive resistance to civil rights. Instead, it seems likelier that some claims of
both of those groups are finding their way into the law by a more circuitous route--a route that is a testament to those
groups' success in injecting their views of the Civil War, Reconstruction, and the dignity of the South into mainstream
American historical memory. When most of the Rehnquist Court, and much of the present Court, encountered
Reconstruction as schoolchildren in the 1940s, 50s, and early 60s, Dunning School narratives were utterly dominant;
reunion between North and South on equal terms was framed as an unalloyed good. The conservative Justices then
spent many politically formative years in a period in which a soft rhetoric of states' rights and state sovereignty was part
of the atmosphere of conservative politics, a highly successful accommodation of the politics of Southern whites. It is
not surprising, in this light, that ideas of state dignity or sovereignty might hold some appeal for some Justices; nor is it
surprising that they might be uncomfortable with federal legislation--section 5--that singles out the South for special
federal oversight in a way that recalls Reconstruction and explicitly holds that the Jim Crow past is relevant in the
present. None of this alters the valence, or the implications, of the step the Court seems poised to take. Even if they are
not doing it intentionally or knowingly, constraining Congress's Reconstruction Power with a principle of the equal
dignity of the states--and most pointedly, the Southern states--would substantially advance the grand historical project
of the original advocates of the equal dignity of the South.
This particular way of paring back Congress's Reconstruction Power is all the more pointed because, in fact, federal
law routinely treats one state differently from another in ways large and small, because states differ in their
circumstances in innumerable respects. Compared to its neighbors, one state might have more military bases, more
native Alaskans, more citizens without health insurance, or a more congenial mountain redoubt for the permanent
storage of the nation's radioactive waste. n84 An equal dignity of the states principle would presumably continue to
allow such differences in treatment where circumstances warrant. Therefore, to apply an equal dignity of the states
principle in Shelby County to strike down section 5 would be to assert that the one salient difference in circumstances
among the states that the Constitution requires Congress to ignore is the fact that certain states recently spent most of a
century openly defying the Reconstruction Amendments by denying their minority citizens the right to vote.
Planet Debate 2014
February PF Topic – Voting Rights Act
115
A2: Section 5 Means Racial Essentialism and Racial
Entitlements
Any racial essentialism that exists is not because of Section 5
Justin Levitt is a Visiting Associate Professor of Law at Yale Law School and an Associate Professor at Loyola
Law School in Los Angeles, The Yale Law Journal Online, June 7, 2013, The Yale Law Journal Online, Section 5 as
Simulacrum, http://yalelawjournal.org/2013/06/07/levitt.html.
With respect to the essentialism concern, the flaw in the section 5 simulacrum is the assumption of causality. There may
well be racial essentialism in covered jurisdictions, but to the extent that it exists, the fault cannot properly be laid at the
feet of the actual federal statute. Section 5 prohibits abridgment of voting power on account of race or ethnicity. It
therefore has teeth in the redistricting context only to the extent that racial or ethnic minority blocs actually exhibit
consistent voting preferences that would, if unprotected, be abridged. The predicate condition for abridgement is a set of
preferences distinct from those of the surrounding community. As an illustration, imagine a jurisdiction in which all
voters prefer precisely the same types of candidates, and imagine further that you were intent on abridging the voting
power of a subgroup of these citizens. How would you draw district lines or shape an at-large district to accomplish the
goal?
Any minority districts are not a flaw in the statute itself
Justin Levitt is a Visiting Associate Professor of Law at Yale Law School and an Associate Professor at Loyola
Law School in Los Angeles, The Yale Law Journal Online, June 7, 2013, The Yale Law Journal Online, Section 5 as
Simulacrum, http://yalelawjournal.org/2013/06/07/levitt.html.
It is true that, in practice, some jurisdictions may draw "black districts" or "Latino districts" based solely on
demographics, indulging racial essentialism and citing section 5 as a politically palatable excuse. But the misapplication
of a statute is not a constitutional flaw of the statute itself. And the judiciary has refused to indulge these
misunderstandings. Courts have consistently emphasized that preclearance decisions are not properly premised on racial
statistics alone, overturning the contrary assumptions of covered jurisdictions in the process. Rather, retrogression is
based on pragmatic political power, as evinced by registration rates, turnout rates, and the degree to which racial or
ethnic minority voters actually demonstrate consistent political preferences. The precondition for section 5 to impose
meaningful constraints on local decisions is that minorities are already politically unified. Section 5 cannot be blamed
for creating unwarranted assumptions, because it shapes government behavior only where the contested facts in
question are already present.
Occasionally, the further objection is raised that districts drawn to preserve the political power of polarized
minorities may not indulge assumptions about polarization or create polarization, but will perpetuate or strengthen it.
For example, districts drawn to provide opportunity to effectuate the political preferences of polarized minorities will
tend to elect, at least initially, candidates responsive to the interests of that minority group. And, the argument goes, that
candidate will encourage further polarization among the electorate in order to cement his or her chances of re-election.
While it is always possible that such a phenomenon might be observed in individual districts, it is not clear why
increased polarization necessarily follows from districts drawn to effectuate the political influence of minority
populations that have been unified in the past. Imagine a district with a polarized Latino community comprising fiftyfive percent of the district's electorate. This community may have a history of political cohesion, but it is neither unitary
nor homogeneous; indeed, rejecting racial essentialism requires an understanding that different Latino voters will have
slightly different sets of salient concerns. For every candidate interested in maintaining the ethnic polarization of the
electorate in order to win that Latino bloc, another should emerge with an interest in crossing ethnic lines to win the
Latino vote as well as some of the non-Latino vote, and still another should emerge with an interest in winning the nonLatino vote as well as some of the Latino vote. Still others should emerge with an interest in amassing winning
coalitions of the electorate that are not measured in ethnic terms at all. The winning strategy will depend on the
cleavages that the voters find most salient. To the extent that the winning coalition divides along ethnic lines, it is not
the district configuration but the voters' own preferences that are the cause. The real section 5 therefore does not create
Planet Debate 2014
February PF Topic – Voting Rights Act
116
or foster a polarized electorate. Rather, in an electorate where racial polarization is presently a fact of life, it simply
allots a modicum of representation to the minority.
Any entitlement that exists is limited and only exists to preserve fairness
Justin Levitt is a Visiting Associate Professor of Law at Yale Law School and an Associate Professor at Loyola Law
School in Los Angeles, The Yale Law Journal Online, June 7, 2013, The Yale Law Journal Online, Section 5 as
Simulacrum, http://yalelawjournal.org/2013/06/07/levitt.html. p. 169-70
This function of the preclearance regime leads directly to the racial entitlements argument. The real statute does provide
a benefit to politically unified minority communities. It creates a legal obligation to draw districts preserving the
political power of these communities. No federal law creates a similar obligation for others. This function of the law as
a special benefit is central to the section 5 simulacrum--which also de-emphasizes the essentially remedial context of the
provision. As discussed above, the preclearance regime only binds jurisdictions where democracy was broken on
account of race or language minority status, and where the preceding decade has not been free of practices that continue
to abridge the franchise on account of race or language minority status. It preserves minority representation in areas
where intentional discrimination was the norm, until individualized determinations, jurisdiction by jurisdiction, make
clear that the local norm no longer persists. The remedy is therefore both temporally and geographically limited. The
remedy is substantively limited as well. Section 5 prevents intentional discrimination and backsliding; that is, in areas
where the process does not specifically target minorities, it prevents only electoral changes that leave racial and
language minority communities with less representation than the status quo ante. If this is an "entitlement," it is an
entitlement to preserve a modicum of representation in jurisdictions that aimed to squelch that representation and have
not--yet--demonstrated a sufficiently robust record of change.
Planet Debate 2014
February PF Topic – Voting Rights Act
117
A2: Need to Prevent Voter Fraud
No real risk of voter fraud
Claire Foster Martin, Cumberland Law Review, 2012 / 2013, 43 Cumb. L. Rev. 95, COMMENT:
BLOCK THE VOTE: HOW A NEW WAVE OF STATE ELECTION LAWS IS ROLLING
UNEVENLY OVER VOTERS & THE DILEMMA OF HOW TO PREVENT, p. 97-8
Although "voting is of the most fundamental significance under our constitutional structure," the right to vote is not
absolute. Within the last two years, states throughout the country have passed different types of legislation, some
successful and some unsuccessful, that have the effect of restricting voting opportunities for otherwise eligible voters.
Often the declared goal of this type of legislation is to promote accuracy in elections and combat voter fraud. Although
preventing voter fraud is a championed cause, studies suggest there is little evidence that voter-initiated fraud, such as
voters casting multiple ballots or ineligible voters attempting to vote, is an extensive problem. For example, despite
allegations of rampant voting fraud by the Department of Motor Vehicles (DMV) in South Carolina, the State Election
Commission conducted a name-by-name review of the voter rolls and reported that it found no serious or realistic case
of voter fraud through the practice of voting under a deceased voter's name. Without a real threat of voter fraud,
legislation enacted under the guise of fighting voter fraud unfortunately only results in the "disenfranchisement of actual
legitimate voters, without a corresponding actual benefit."
Planet Debate 2014
February PF Topic – Voting Rights Act
118
A2: Upholding the Law Would Have Been Activist
The Warren Court’s enforcement of the law upheld the intent of Congress
Luis Fuentes-Rohwer, law professor, Cardozo Law Review, January, 2011, SYMPOSIUM:
ACKNOWLEDGE RACE IN A "POST-RACIAL" ERA: JUDICIAL ACTIVISM AND THE
INTERPRETATION OF THE VOTING RIGHTS ACT, p. 878-9
A second lesson of the Court's interpretation of the Voting Rights Act is that the script flips squarely on its head: The
Warren Court, long considered a bastion of judicial activism and policymaking, was far more faithful to the intent of
Congress and the purposes of the statute than subsequent Courts. In fact, if there is any story to tell here, it is that the
conservative Justices are far more activist than the liberal Justices in overriding congressional wishes.
The argument begins with the congressional hearings in 1965. Throughout these hearings, the Johnson Administration
sent a clear message that the proposed bill went as far as it thought that any legislation could go in light of relevant
constitutional proscriptions. "I have indicated repeatedly," the Attorney General conceded in response to a suggestion
from the committee, "I am entirely sympathetic with doing so if we can find a constitutional means and a practical
means of doing so. I confess that my ingenuity has floored in that regard." And in response to a query from Senator
Joseph Tydings, the Attorney General similarly explained that the Administration was unable to draft a law where we
could have the same objective criteria which [they] felt would stand up constitutionally and still cope with this kind of
situation... . It wasn't done from a desire to permit any discrimination in voting, but merely because we couldn't devise a
better law than this to deal with it. For this reason, Attorney General Peter Nicholas Katzenbach seemed willing at
various times to let others try their hand at the problem. For example, in response to Representative Peter Rodino's
question as to whether he "believed that this bill, with the provisions that have been written into it, [was] the surest way
of guaranteeing that the right to vote will not be denied to any citizen regardless of race or color," Katzenbach replied,
"if this committee can come up with a better way of doing it and a surer way of doing it, I am sure the administration
would support that way of doing it. This is the best we have been able to accomplish." Similarly, in response to
Representative William Cramer's contention about the inadequacy of the legislation's coverage, and particularly his
question about whether Katzenbach "would not object to any member of this committee making an exploration in that
area," the Attorney General explained, "anything that will be in this direction and make it constitutional, I am all for it."
He repeated this sentiment throughout his testimony in both the House and the Senate hearings. This willingness to
consider different avenues of reform extended to the particular language of the statute.
Many members of Congress and prominent witnesses who spoke in support of the bill got the message. The House
hearings figure prominently on this score, as they offered a rather amicable forum where the proposed bill received a
warm and receptive welcome. This was a setting in which the relevant actors could focus on the goal at hand and how
best to accomplish it. During his testimony on March 24, 1965, for example, Executive Director of the NAACP Roy
Wilkins stated, "all we want is that nothing shall be considered good enough until it has reached the limit of
constitutional interpretation and of practical and pragmatic possibility that you mention." Representative John Lindsay
similarly asked a few days earlier: "With this mood in the country and the willingness of the members to get through a
voting rights bill, and I think it will be a large majority, too, by which it would go through, can't we try to do a little bit
more?" n128 But Chairman Emmanuel Celler put it best; on the last day of the hearings and in reference to Joseph
Rauh, Jr., then-counsel for the Leadership Conference on Civil Rights, he stated, "I have great respect for Mr. Rauh, but
sometimes he is a stargazer, and that is a creditable term. But we must be practical." Congress could only go so far.
The real question, then, was how far Congress could go while remaining within legitimate constitutional limits.
This is how this Article interprets the debate in Congress, and this is also how it interprets the final product, codified as
section 5 of the Act. The language of the Act was broad and even somewhat vague, yet its purpose was clear: to fight
the blight of racial discrimination and "to open the city of hope to all people of all races." This meant that the Court
could interpret this language to the limits of constitutional law while remaining firmly within the intent of Congress and
the Johnson Administration. In other words, the Court could be as aggressive with this language as it needed to be,
knowing that it had the full support of the political branches. Only the Constitution offered any limits on the Court.
This is precisely what the Warren Court did in Allen and in Gaston County v. United States. Particularly in Allen,
Planet Debate 2014
February PF Topic – Voting Rights Act
119
the Court read the language of the Act broadly and, in so doing, opened itself to the accusation of activism. But the
criticism is misplaced. Not only was the Court following Congress's lead, but Congress also approved of the Court's
interpretations, and did so explicitly, that same year. During the 1969 extension hearings in the House, for example,
Congressman William McCulloch explained: Section 5 was intended to prevent the use of most of these devices. But
apparently the States rarely obeyed the mandate of that section, and the Federal Government was too timid in its
enforcement. I hope that the case of Allen v. State Board of Elections, decided by the Supreme Court on March 3, 1969,
is the portent of change.
This is a remarkable statement from a member of Congress, expressing hope that a judicial ruling, rather than
legislative amendments, would bring about the needed change. The Senate hearings similarly demonstrate how
members of Congress welcomed, sometimes explicitly, sometimes not, the Allen ruling.
This is also why this subpart argues that the Court's change in posture beginning in 1975 was inconsistent with
congressional wishes. Beginning with City of Richmond and Beer, the Supreme Court began a clear departure from its
prior interpretations of the Act. More interesting for our purposes is how the Court decides these cases under the guise
of statutory interpretation while paying little attention to the intent of Congress or the purposes of the statute. This is
true even in cases such as Beer, when the Court professes to be doing exactly that: discerning the intent of Congress. At
the very least, these cases are no different in their creative interpretations of the law. At worst, they are in direct tension
with congressional wishes as stated in 1965 and by subsequent Congresses.
A useful way to understand the dynamic between Congress and the Court is to analogize the relationship to a
dialogue between the branches about the proper direction of voting rights policy. This is an apt analogy because it
focuses attention on the preeminent role played by Congress in enacting laws and its interaction with the Court as
interpreter of the Constitution. The reading of the legislative history of the Act offered here posits Congress as
encouraging this dialogue. In turn, the cases amply demonstrate that the Justices are not similarly disposed to engage in
this dialogue. At the very least, the cases make clear that talk of activism is simply off-base and empty. Activism is in
the eye of the beholder.
Planet Debate 2014
February PF Topic – Voting Rights Act
120
Pro
Planet Debate 2014
February PF Topic – Voting Rights Act
121
Intentional & Extreme Racism Should be the Standard
Section 5 was only justified in the past because of extreme, intentional racism
Mountain States Legal Foundation, 2012, Amicus Curiae Brief, http://sblog.s3.amazonaws.com/wpcontent/uploads/2012/08/12-96-MSLF-Shelby-County-Cert-Amicus-Filed-8-23-12.pdf
Congress had originally addressed this pattern of intentional voting discrimination by passing
laws to “facilitat[e] case-by-case litigation” and the Supreme Court responded by “striking down
[unconstitutional] discriminatory voting tests and devices in case after case.” But widespread
voting discrimination persisted. Thus, the Voting Rights Act of 1965, particularly Section 5,
which targeted facially¶ constitutional practices, was enacted to defeat these efforts to
intentionally nullify the Fifteenth Amendment that had “infected the electoral process in parts of
our country for nearly a century.” Therefore, Katzenbach concluded that, “under the compulsion
of these unique circumstances, Congress responded in a permissibly decisive manner [in enacting
Section 5].” Katzenbach held that the evidence before Congress – persistent, pervasive, and
intransigent State action intentionally discriminating against African-Americans to prevent them
from registering and voting, impervious to less drastic remedies – was sufficient to justify the
extraordinary prophylactic exercise of remedial powers contained in Section 5:¶ Two points
emerge vividly from the voluminous legislative history. . . . First: Congress felt itself confronted
by an insidious and pervasive evil which had been perpetuated in certain parts of our country
through the un- remitting and ingenious defiance of the Constitution. Second: Congress had
concluded that the unsuccessful remedies which it had prescribed in the past would have to be replaced by sterner and more elaborate measures in order to satisfy the clear commands of the
Fifteenth Amendment. Far from employing the relaxed, deferential standard of review advocated
by the Attorney General, Katzenbach recognized that Section 5 of the Voting Rights Act is “an
uncommon¶ exercise of congressional power” and that only “exceptional conditions can justify
legislative measures not otherwise appropriate.”.¶ Thus, Katzenbach held that the extraordinary
and uncommon exercise of congressional power en- gaged in by Congress in enacting Section 5’s
prophylactic provisions was “appropriate” and “rational” only because it was adopted to remedy a
widespread pattern of insidious, pervasive, unremitting, and ingenious defiance of the
Constitution to deny African- Americans the right to register and to vote, which had defied
previous lesser remedies.¶ In fact, consistent with the Supreme Court’s sub- sequent decision in
Boerne, the remedy approved by Katzenbach was congruent and proportionate to the nature and
scope of the unremitting defiance of the Constitution presented to Congress and that it sought to
remedy as set out in Boerne. Therefore, Katzenbach, without expressly so stating, applied the
congruency and proportionality standard that this Court would later articulate more specifically in
Boerne.
Planet Debate 2014
February PF Topic – Voting Rights Act
122
Section 5 an Intrusion on the States
The federal government does not have the authority to preempt state laws
before they are even enacted
Kevin Clarkson, The Alaska Bar Rag, July - September, 2013, 37 AK Bar Rag 1
COURT'S DECISION ON VOTING RIGHTS ACT LONG OVERDUE
The Majority's reasoning rests heavily upon concepts of federalism and state sovereignty. The Constitution and laws of
the United States are supreme. But, this does not give the Federal Government a general right to review and veto state
enactments before they go into effect. A proposal to grant the Federal Government the authority to "negative" state laws
was considered at the Constitutional Convention, but rejected in favor of allowing state laws to take effect subject to
later challenge under the Supremacy Clause. By our system of federalism, States retain broad autonomy in structuring
their governments and pursuing legislative objectives. And, by the Tenth Amendment, all powers not specifically
granted to the Federal Government are reserved to the States and the People. This structure of federalism, the Shelby
County Majority explains, "preserves the integrity, dignity, and residual sovereignty of the States." Sovereignty which is
fundamentally required to be equal among the States. As the Court explained, our Nation "was and is a union of States,
equal in power, dignity and authority."
States have the power to regulate elections
US Supreme Court, June 2013, Holding of Shelby County v. Holder,
http://www2.bloomberglaw.com/public/desktop/document/Shelby_Cnty_v_Holder_No_1296_2013
_BL_167707_US_June_25_2013_Court
State legislation may not contravene federal law. States retain broad autonomy, however, in
structuring their governments and pursuing legislative objectives. Indeed, the Tenth Amendment
re erves to the States all powers not specifically granted to the Federal Government, including
"the power to regulate elections." There is also a "fundamental principle of equal sovereignty"
among the States, which is highly pertinent in assessing disparate treatment of States.
Section 5 is a massive intrusion into state authority that is no longer justified
Iyla Shapiro, Counsel of Record, August 20, 2012, CATO Amicus Curiae Brief, http://www.scotusblog.com/casefiles/cases/shelby-county-v-holder/
When Congress enacted the VRA, Jim Crow was not going quietly into the historical night. Black
ballots were the levers of change that white supremacists most feared, so enforcing the Fifteenth
Amendment required an overwhelming exercise of federal power—radical legislation that
involved an unprecedented intrusion of federal authority into state and local elections. See Lopez
v. Monterey County, 525 U.S. 266, 282 (1999) (noting that Section 5, “which authorizes federal
intrusion into sensitive areas of state and local policymaking, imposes substantial ‘federalism
costs’” (quoting Miller v. Johnson, 515 U.S. 900, 926 (1995)).¶ The VRA effectively put southern
states under federal electoral receivership. It suspended literacy tests, provided for the use of
federal registrars, and demanded that suspect jurisdictions obtain preclearance of proposed
electoral changes. A reverse- engineered statistical trigger identified these “covered”
jurisdictions; the burden to prove that changes in voting procedure were free of racial animus—to
prove a negative—lay on these Section 5 jurisdictions.¶ Justice Black worried that the provision
compelled states to “beg federal authorities to approve their policies,” so distorting our
constitutional structure as to nearly eradicate the distinction between federal and state power. It
Planet Debate 2014
February PF Topic – Voting Rights Act
123
was a valid point, but the VRA succeeded where all other attempts to secure voting rights failed:
black voter registration skyrocketed.¶ The enforcement authority that would remedy a century of
Fifteenth Amendment violations thus amounted to what might be called “federal wartime¶
powers.” As on other occasions when wartime powers were invoked, however, the consequence
was a serious distortion of constitutional order.
VRA imposes substantial federalism costs
Iyla Shapiro, Counsel of Record, August 20, 2012, CATO Amicus Curiae Brief, http://www.scotusblog.com/casefiles/cases/shelby-county-v-holder/
Rather than lifting the VRA’s constraints on federalism, Congress in 2006 heightened the tension
be- tween the states and federal government by overruling Bossier Parish II and Ashcroft and
amending pre- clearance requirements such that electoral changes must be rejected when they are
believed to exhibit “any discriminatory purpose” or “diminish[ ] the ability of minority
citizens...to elect their preferred candidates of choice.” Yet the Constitution preserves the powers
of the states to regulate elections. Absent a compelling justification or “exceptional conditions”
(such as pervasive, invidious racial discrimination), election law falls within states’ reserved
powers and is an essential element of their sovereignty.¶ In NAMUDNO, this Court cited
numerous cases acknowledging Section 5’s “intrusion into sensitive areas of state and local
policymaking” and expressing “serious misgivings about the constitutionality of Section 5.”
Neither Congress nor this Court can avoid these glaring constitutional doubts any longer.¶ Section
5 violates the Tenth Amendment and basic tenets of federalism in two principal ways. The first is
that the preclearance regime undermines the “fundamental principle of equal sovereignty” by
“differentiating between the states” with a coverage formula that is now unsubstantiated, invalid,
and, therefore, completely arbitrary. (“The evil that section 5 is meant to address may no longer
be concentrated in the jurisdictions singled out for pre- clearance. 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 cur- rent political conditions.”). Moreover, “the greater the burdens imposed by
section 5, the more accurate the coverage scheme must be.” Yet Congress did not review the
coverage formula when it reauthorized the VRA in 2006.¶ The second Tenth Amendment
violation lies in the preclearance regime’s mandate for anticipatory re- view. Mandatory
preclearance acts as a prior restraint on election law, a policy area generally re- served to the
states. In addition, anticipatory review ensnares every state and local electoral rule proposed by a
covered jurisdiction. To obtain preclearance a covered jurisdiction must prove both the absence of
“any discriminatory purpose” and that the proposed voting change will not detract from a
minority group’s “ability to elect” its preferred candidate. Under this regime, whether the
proposal affects a voter’s actual exercise of the right to vote is no longer the ultimate question.
Now deviating from that central inquiry, the exclusive focus becomes whether a proposed rule
affects a minority groups’ ability to elect their “preferred candidate” (whatever that means). As a
consequence, covered jurisdictions lose the freedom to show that plans formulated based on other
factors warrant consideration. Besides restricting state autonomy, the “ability to elect” constraint
coerces states to adopt “a particular brand of race conscious decision-making” that treats
minorities as a monolithic bloc. Similarly, the requirement that covered jurisdictions “prove the
absence of a discriminatory purpose” conjures up memories of DOJ’s campaign of “maximizing
majority-minority districts at any cost.” As Judge Williams commented below, the discriminatory
purpose standard, “at worst restored the DOJ’s ‘implicit command that states engage in
presumptively unconstitutional race-based districting’” Id. (quoting Miller, 515 U.S. at 927), and
“at best, ‘exacerbated the substantial federalism costs that the preclearance procedure already
exacts’
Planet Debate 2014
February PF Topic – Voting Rights Act
124
The Tenth Amendment protects state authority over elections
Chief Justice Roberts et al, 2013 (+ justices Scalia, Kennedy, Thomas, and Alito, Shelby County v. Holder, June 25,
http://www2.bloomberglaw.com/public/desktop/document/Shelby_Cnty_v_Holder_No_1296_2013_BL_167707_US_J
une_25_2013_Court)
More specifically, "`the Framers of the Constitution intended the States to keep for themselves, as
provided in the Tenth Amendment, the power to regulate elections.'" Of course, the Federal
Government retains significant control over federal elections. For instance, the Constitution
authorizes Congress to establish the time and manner for electing Senators and Representatives.
But States have "broad powers to determine the conditions under which the right of suffrage may
be exercised." And "[e]ach State has the power to prescribe the qualifications of its officers and
the manner in which they shall be chosen." Drawing lines for congressional districts is likewise
"primarily the duty and responsibility of the State."
Planet Debate 2014
February PF Topic – Voting Rights Act
125
States Not Being Treated Equally
DOJ has abused its power and prevented voter ID laws in some states while
the Supreme Court has upheld them in others
Brief of Former Department of Justice Officials, August 2012, http://sblog.s3.amazonaws.com/wpcontent/uploads/2012/08/12-96-Amicus-Brief-former-DOJ-Officials-filed-8-23-12.pdf
DOJ, too, has abandoned any pretense of restraint and has used Section 5 to block a number of
voting changes in covered jurisdictions that closely resemble laws already in force in non-covered
jurisdictions. For example, this Court has held that an Indiana statute requiring voters to present
photo identification is facially constitutional, see Crawford v. Marion County Election Bd., 553
U.S. 181 (2008), yet DOJ has sought to prevent Texas and South Carolina from adopting similar
legislation. Worse yet, many of DOJ’s objections to preclearance rely on amorphous allegations
of discriminatory “purpose” that cannot be resolved without extensive and costly discovery and,
often, a full trial on the merits. Covered jurisdictions are subject to these burdens solely because
of a formula that relies on nearly 40- year-old data and has taken no account whatsoever of the
fact that “[t]hings have changed” over the intervening four decades.
The Act’s provisions only apply to 9 states, violating the principle of equal
sovereignty
US Supreme Court, June 2013, Holding of Shelby County v. Holder,
http://www2.bloomberglaw.com/public/desktop/document/Shelby_Cnty_v_Holder_No_1296_2013
_BL_167707_US_June_25_2013_Court
The Voting Rights Act sharply departs from these basic principles. It requires States to beseech
the Federal Government for permission to implement laws that they would otherwise have the
right to enact and execute on their own. And despite the tradition of equal sovereignty, the Act
applies to only nine States (and additional counties). That is why, in 1966, this Court described
the Act as "stringent" and "potent." The Court nonetheless upheld the Act, concluding that such
an "uncommon exercise of congressional power" could be justified by "exceptional conditions."
Disparate treatment of states is not justified because voting tests no longer
exist
Chief Justice Roberts et al, 2013 (+ justices Scalia, Kennedy, Thomas, and Alito, Shelby County v. Holder, June 25,
http://www2.bloomberglaw.com/public/desktop/document/Shelby_Cnty_v_Holder_No_1296_2013_BL_167707_US_J
une_25_2013_Court)
When upholding the constitutionality of the coverage formula in 1966, we concluded that it was
"rational in both practice and theory." The formula looked to cause (discriminatory tests) and
effect (low voter registration and turnout), and tailored the remedy (preclearance) to those
jurisdictions exhibiting both. By 2009, however, we concluded that the "coverage formula
raise[d] serious constitutional questions." As we explained, a statute's "current burdens" must be
justified by "current needs," and any "disparate geographic coverage" must be "sufficiently
related to the problem that it targets." The coverage formula met that test in 1965, but no longer
Planet Debate 2014
February PF Topic – Voting Rights Act
126
does so. Coverage today is based on decades-old data and eradicated practices. The formula
captures States by reference to literacy tests and low voter registration and turnout in the 1960s
and early 1970s. But such tests have been banned nationwide for over 40 years. And voter
registration and turnout numbers in the covered States have risen dramatically in the years since.
Racial disparity in those numbers was compelling evidence justifying the preclearance remedy
and the coverage formula. There is no longer such a disparity.
In 1965, the States could be divided into two groups: those with a recent history of voting tests
and low voter registration and turnout, and those without those characteristics. Congress based its
coverage formula on that distinction. Today the Nation is no longer divided along those lines, yet
the Voting Rights Act continues to treat it as if it were.
States should be treated equally
Chief Justice Roberts et al, 2013 (+ justices Scalia, Kennedy, Thomas, and Alito, Shelby County v. Holder, June 25,
http://www2.bloomberglaw.com/public/desktop/document/Shelby_Cnty_v_Holder_No_1296_2013_BL_167707_US_J
une_25_2013_Court)
Not only do States retain sovereignty under the Constitution, there is also a "fundamental
principle of equal 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." Id., at 334. 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."
Planet Debate 2014
February PF Topic – Voting Rights Act
127
A2: Political Process Protects Federalism
The political process will not protect federalism
Young 4
[Ernest, Law Professor, University of Texas, TEXAS LAW REVIEW, November 2004, pp. 67-8]
The Political Branches as Institutions. - I begin with some basic institutional features of the political branches, starting with Congress itself. The most
obvious is that Congress is elected. That seems relevant to federalism questions in at least three different respects. First, electoral districts are defined
geographically and within the boundaries of individual states, thereby rendering the representative presumptively responsive to interests concentrated
at the state level. Second, the
necessity of getting elected may render the representative dependent on other actors, such
as state-level politicians. And third, the election itself lends democratic legitimacy to the legislature's decisions in a way quite different from
courts, which must claim legitimacy by grounding their decisions in some external source of law. An elected member of Congress, in other
words, is free to decide first-order federalism questions - such as whether to regulate guns in schools at the federal
level - based on his own notions of good policy; a court, by contrast, will lack legitimacy unless it can ground its
resolution of such a question in some relatively determinate principle of constitutional law. This latter point - that a
legislature's legitimacy does not necessarily turn on its acting in a principled manner - yields several other relevant characteristics. Compromises of the
"split the difference" variety are easier for legislatures than for courts. And legislative actions do not create precedents in the same way that judicial
decisions do. Inconsistent or unprincipled behavior may, of course, turn out to be politically costly in particular situations. But legislatures are likely to
be judged at the end of the day on whether their policy decisions have benefited their constituents. Equally important, Congress can act only with great
difficulty. Article I of the Constitution prescribes a legislative gauntlet of bicameralism and presentment to the president, and that route is compounded
by legislative rules providing for committee consideration, filibusters, appropriations hurdles, and the like. The upshot is multiple "veto gates" at which
legislative proposals may be stymied by determined opposition. And the vast array of issues pressing for Congress's attention at any given time means
that simple inertia may be as significant an obstacle as outright political opposition..
State representation will not avoid the impacts
Young 4
[Ernest, Law Professor, University of Texas, TEXAS LAW REVIEW, November 2004, pp. 73-4]
It must be said that the Garcia and Wechsler theory of protection through representation has all kinds of problems. The critical literature is extensive,
and I will hit only the high points here. The first has to do with Professor Wechsler's theory of representation. Because federal representatives
are dependent upon constituents at the state level, Wechsler assumed members of Congress will function effectively
as ambassadors for their states in Washington, guarding their states' interests against federal encroachment. As Larry
Kramer has demonstrated, however, this view conflates representation of interests at the state level with
representation of the actual institutions of state government. The two are not the same; federal representatives may
have preferences on substantive issues like environmental protection or gun control that reflect the geographically
concentrated views of their constituents, but they will have little reason to want those issues to be decided at the
state level. The more likely scenario, in fact, is that federal and state politicians will find themselves competing to
provide for the needs of their common constituents. This competition provides strong incentives for federal
representatives to expand their own responsibilities at the expense of their state-level colleagues. As Jonathan Macey has
explained, "the political-support-maximization model would seem to predict that the federal government will always exercise its power to preempt
local law - either to regulate or to forbear from regulating - in order to obtain for itself the political support associated with providing laws to interested
political coalitions."
State political interests in Washington may encourage states to sacrifice their
own interests
Young 4
[Ernest, Law Professor, University of Texas, TEXAS LAW REVIEW, November 2004, pp. 74-5]
Some opponents of judicial review in federalism cases have acknowledged these sorts of problems, but have sought to rehabilitate the Garcia and
Wechsler approach by identifying alternative political mechanisms that protect state autonomy. Larry Kramer, for example, has argued that political
parties and administrative agencies tie the fortunes of state-and federal-level politicians together, so that federal
Planet Debate 2014
February PF Topic – Voting Rights Act
128
representatives and bureaucrats are inclined to look out for the institutional interests of state government rather
than to compete with state politicians. This dynamic no doubt works out the way Professor Kramer predicts at least some of the time. Yet
there are also reasons to doubt how far the argument goes. Mutual dependence is a double-edged sword; in some
instances, it may encourage state politicians to sacrifice their own institutional interests and the interests of their
state for the good of the national party.
Federal administrative agencies, which produce most federal law, are not
influence by the states
Young 4
[Ernest, Law Professor, University of Texas, TEXAS LAW REVIEW, November 2004, pp. 75-6]
Professor Kramer's reference to administrative agencies highlights a second, more general problem with the representation argument. Even if we
concede that Congress represents the states, Congress no longer makes most federal law. Federal administrative agencies now
produce the bulk of federal law, and they lack any particular mechanisms for representing State interests. To be sure,
Congress retains various instruments for supervising and pressuring agencies - through budgetary and oversight hearings, for example - but these
federal law comes from agencies rather than Congress, the representative
arrangement upon which Wechsler relied is far more attenuated than if Congress legislates directly.
mechanisms do not erase the central point: If
Horizontal aggrandizement offsets political interests
Young 4
[Ernest, Law Professor, University of Texas, TEXAS LAW REVIEW, November 2004, pp. 76-7]
The mechanisms of party and administrative interdependence are, in any event, no answer to a third problem that arises when we distinguish between
the classic issue of vertical aggrandizement - attempts by the national government to increase its own power vis-a-vis the states for its own purposes and the distinct problem of horizontal aggrandizement. Most discussion of political safeguards focuses on the vertical scenario. In
the horizontal version, one group of state governments or interests concentrated at the state level uses the national
government as an instrument for imposing its preferences on other states. A good nineteenth century example is the Fugitive
Slave Law, by which the Southern states were able to use the federal government as an instrument for enforcing their preference for a draconian
regime of recovery of escaped slaves on states in the North, which preferred to give putative escapees more due process. Because the horizontal
scenario depends on Congress's responsiveness to states, it is driven by the very dynamic that Professor Wechsler and
the Garcia opinion posited. Even if the political safeguards theorists are correct, in other words, horizontal
aggrandizement remains a threat to the autonomy of individual states.
Interest groups undermine political safeguards
Young 4
[Ernest, Law Professor, University of Texas, TEXAS LAW REVIEW, November 2004, pp. 76-7]
Fourth, political safeguards theorists often seem to downplay the many political and economic forces that press for resolution of problems at the
national level. One factor is that "it simply [is] much easier to fight a regulatory war in one central location, rather than in fifty state fora." groups
seeking enactment of a particular policy may also prefer federal law because it is "considered a higher quality product
than state law" or because it is harder for those who are made worse off by the regulation to avoid it by exiting to another jurisdiction. The
result of these factors, according to Professor Macey, is that "we observe interest groups exhibiting a strong preference for
federal as opposed to state law in most areas." Aside from the preferences of interest groups, there is the simple preference of national
institutions themselves for expanding their own power. Even politicians who enter national office with an ideological commitment
to state autonomy and devolution tend to end up maintaining or expanding national authority. Those tendencies will not, of
course, be dispositive in all cases. But from the perspective of state regulatory autonomy, it is fair to say they do not help
Legislative inertia won’t protect the states – administrative agencies are in charge
Young 4
[Ernest, Law Professor, University of Texas, TEXAS LAW REVIEW, November 2004, pp. 78-9]
Planet Debate 2014
February PF Topic – Voting Rights Act
129
Inertia. - Both of the previous arguments relied upon the claim that politicians at the federal level will deliberately act to protect state institutional
interests, either because they are responsive to state governments themselves (representation) or because they are responsive to the People, who
will in turn care about state responsibilities in areas in which the states have performed well (competition). A
distinct argument is indifferent
to Congress's intentions; this argument from governmental inertia suggests that the federal political process may
protect state autonomy simply because it is cumbersome. Brad Clark, for example, has emphasized the difficult procedural gauntlet
facing federal legislation under Article I. "Each set of procedures," he argues, "requires the participation and assent of multiple actors to adopt federal
law. This creates the equivalent of a supermajority requirement and thus reinforces the burden of inertia against federal action, leaving states greater
freedom to govern." nWe thus might think of the familiar but difficult processes by which legislative proposals must secure a place on the legislative
agenda, navigate both houses of Congress, and either secure presidential approval or a supermajority sufficient to override a veto as the "procedural
safeguards of federalism." The point bears emphasis because inefficiencies in government are generally thought to be lamentable defects that we
should make every effort to correct and overcome. The inertia argument claims, instead, that inefficiencies at the federal level are - as the guys in tech
support might say - not a "bug" but a "feature" of the system. Congress may lack any sympathy at all for state institutions; it may be confident that the
sovereign People are behind it in its efforts to centralize authority; it may intend to preempt as broad a swath of state regulatory authority as it possibly
can. But none of this matters if Congress cannot achieve consensus, if other priorities or even pure political squabbling compete for its attention, if an
obstructive minority of its members can exploit procedural bottlenecks to stave off legislative action, or if Washington, D.C. simply lacks the financial
resources to undertake further federal initiatives. As Martha Derthick has observed, "The states are the "default setting' of the American federal
system. To the extent that other levels of government lack the resources to act - authority, revenue, will power, political consensus, institutional
The problem is that most federal law no longer passes through the traditional legislative
gauntlet. Congress delegates broad authority to administrative agencies, which act outside the normal channels of
bicameralism and presentment. To be sure, the Administrative Procedure Act imposes procedural gauntlets of its own on agency lawmaking,
capacity - the states have the job."
but these restrictions have themselves often been circumvented by the migration of agency activity to less formal procedures. nGiven the breadth of
agency lawmaking, one must wonder how meaningful the procedural safeguards limiting legislative action at the national level really are. Federal
administrative agencies are not the only means of circumventing legislative inertia. The rise of the "new federal
common law" has empowered federal courts to play a similar role, notwithstanding the earlier restriction of judicial lawmaking in Erie
Railroad Co. v. Tompkins.
The political process will not protect federalism
McGinnis and Somin 4
[John O. McGinnis and Ilya Somin, Research Professor, Northwestern Law School, Ilya Somin, Assistant Professor of Law, George Mason University
School of Law, NORTHWESTERN LAW REVIEW, Fall 2004, pp. 90]
This Article defends the distributional model of federalism and the principal-agent model of its enforcement, arguing that together they have profound
implications for modern federalism jurisprudence. The political process will not always protect the Constitution's beneficial
distribution of power, because the people's agents - federal officials and state officials alike - are primarily motivated
by their own political interests. These interests, however, have no necessary connection to the maintenance of the distribution of powers set
out in the Constitution. Officials will thus often use the initial distribution of powers assigned by the Constitution as chips to trade or indeed to
surrender rather than systematically defend. Because of their rational ignorance of public policy, citizens will not consistently
protect federalism, particularly because it is a complex issue of governmental structure that lacks political salience
compared to the pressing public policy issues of the day. Accordingly, it is fundamentally misguided to claim, as do some
commentators, and occasionally the Supreme Court, that the political process reliably protects federalism.
Planet Debate 2014
February PF Topic – Voting Rights Act
130
Federal Power Undermines State Power
Federal exercise of power reduces state power
Yoo 97
[John, law professor, SOUTHERN CALIFORNIA LAW REVIEW, v. 70, p. 1352]
It is important to note that Justice Kennedy did not differentiate between laws that regulated states qua states and those that regulated private parties
in areas that might be thought to lie within state power. Following Chief Justice
Rehnquist's majority opinion, Justice Kennedy's
concurrence treated the exercise of any federal power as a diminution of the power of the states and hence a
reduction of state sovereignty
An expansion of federal power undermines state power
Bybee 2k
[Jay S., Professor of Law, William S. Boyd School of Law, University of Nevada, Las Vegas, HARVARD JOURNAL OF LAW AND PUBLIC POLICY, Spring, p.
557]
Although the context for Tenth Amendment litigation has involved disputes between states and the federal government, residual state authority also
inures to the benefit of "the people." In any contest between Congress and the states, a decision that favors expanded
federal powers
necessarily disfavors the states and the people. When Justice Souter wrote in Alden that "the commerce power is no
longer thought to be circumscribed," he meant, implicitly, that the people have reserved no powers over commerce
or anything affecting it.
Federal action complicates accountability and discourages state and local action
Oakley 96
[John B, professor of law at University of California at Davis, ANNALS OF THE AMERICAN ACADEMY OF POLITICAL AND SOCIAL SCIENCE, January, p. 115]
In the absence of such justifications, the federal
enthusiasm is likely to do more harm than good, distracting federal efforts
from areas where it has a distinct comparative advantage, complicating accountability for areas that have long been
considered the responsibility of state and local government, and discouraging the development by those
governments of the capacities needed to carry out their responsibilities.
Federal power trades-off with state power
Harvard Journal of Law and Public Policy 2k
[Spring, p. 565-6]
The new term actually gives us a new perspective on the enumerated powers. No power granted to Congress
- think of the Commerce
Clause - may be so construed as to preempt entirely the states' power over the people. I employ the phrase "power over the
people" for two reasons. First, this phrase emphasizes that the reserved powers of the states must somehow reflect general sovereign powers, which
are powers over people. The "States qua States" cases preserve the states' power over some people - those who are state employees. A state that may
resist commandeering so as to retain only the power to exist in name possesses no meaningful powers. Second, I refer to the states' power over
"people" because the Court has overlooked "the people" in its arguments over the Tenth Amendment, and "the people's" rights are also reserved. The
Tenth Amendment expresses a triangular relationship among the federal government, state governments, and the people. Although the context for
Tenth Amendment litigation has involved disputes between states and the federal government, residual state authority also inures to the benefit of
"the people." In any contest between Congress and the states, a decision that favors expanded federal powers
necessarily disfavors the states and the people. When Justice Souter wrote in Alden that "the commerce power is no longer thought to be
circumscribed," he meant, implicitly, that the people have reserved no powers over commerce or anything affecting it.
Planet Debate 2014
February PF Topic – Voting Rights Act
131
Strong State Authority Protects Federalism
FEDERALISM PROMOTES DIVERSITY AND STOPS TYRANNY
HASTINGS LAW JOURNAL, 2002 (January, pp. 439-40)
Federalism is often claimed to serve many diverse values. It "increases opportunity for citizen
involvement in democratic processes," will better satisfy citizen preferences by catering to tastes at a
state level, provides citizens with the option of moving to a state with public policies perceived to be
more congenial, enables states to experiment with innovative public policies, preserves a government
structure that inhibits a potentially tyrannical concentration of power in the central government, insures
the continuance of discrete political and social communities, and ensures clear political accountability for
government actors in each of the central and state governments. Federalism is not, of course, an
unqualified boon.
FEDERALISM IS IMPORTANT TO PRESERVE LIBERTY AND TO STOP THE
CONCENTRATION OF POWER
HASTINGS LAW JOURNAL, 2002 (January, pp. 433-4)
I have a different perspective. Federalism is not a dysfunctional anachronism, a nostalgic symbol of a
pre-industrial America. Rather, when properly viewed and applied, it is crucial to preservation of
individual liberty and a valuable device to preserve a healthy balance of power among governmental
institutions. The institutional benefits of federalism are not simply preservation of state autonomy as a
counter to federal power but also operate less directly to preserve the scheme of separated powers
within the federal government.
DECENTRALIZED GOVERNMENT MAXIMIZES INDIVIDUAL FREEDOM
Dalton Cross, Law Professor, Texas, 2000 (HARVARD JOURNAL OF LAW & PUBLIC POLICY, Fall, p.
165)
Government can be made more responsive to the popular will by keeping the policy-making unit closer to
the people. As a matter of simple arithmetic, the smaller the policy-making unit, the fewer the number of
people who will be discontented by any policy choice. Individual freedom means leaving policy choices
with the individual; if a choice must be removed from the individual by government, individual freedom is
served to the extent that it is removed no farther than necessary.
FEDERALISM ENHANCES SELF-GOVERNMENT
Clarence Thomas, US Supreme Court Justice, 2000 (DRAKE LAW REVIEW, v. 48, pp. 235-6)
Federalism helps to accomplish this goal in a number of ways. It enhances self- government by creating a
local decision-making system that is closer to the people, and hence more responsive to their wishes.
States still retain jurisdiction over most of the policies that affect the daily lives of their citizens, and so
they can play a creative role in defining individual rights. States not only tailor national programs to local
conditions and needs (the rather servile role assigned to them by some); they also provide innovation in
recognizing and protecting rights-an insight that Justice Brennan recognized in urging states to recognize
Planet Debate 2014
February PF Topic – Voting Rights Act
132
rights under state constitutions that went beyond the Federal Bill of Rights. At a broader level, the
existence of numerous states, each making certain decisions concerning the allocation of resources and
the balance between public power and private rights, creates a beneficial marketplace of sorts. Since
people can vote with their feet, by moving to states with whose policies they agree, they force the states
into a competition to offer policies that best protect individuals and their rights. States can even
virtuously compete with the federal government to better protect the individual rights of their citizens.
Planet Debate 2014
February PF Topic – Voting Rights Act
133
Section 5 Won’t Solve
Section 5 will not solve voting rights problems in on preclearance areas
FRANCES E. FAIRCLOTH, January 2012, Yale Law Journal, The Future of the Voting Rights Act: Lessons from the
History of School (Re-)Segregation, p. 1000
I am not arguing that section 5 is unconstitutional. Nor am I taking a position on whether section 5, if it were not
weakened by bailout, might be worth preserving. However, for all the good that section 5 might do in the jurisdictions
where it still applies, its reach is underinclusive: states that are not (and never were) subject to section 5 are sites of
growing voting rights concerns.
Section 5 doesn’t impact the key voting flashpoints
Samuel Issacharoff, Harvard Law Review, November, 2013, COMMENT: BEYOND THE
DISCRIMINATION MODEL ON VOTING, Reiss Professor of Constitutional Law, New York University
School of Law, p. 104-5
In terms of crafting a post-Shelby County regime of legal protection of the right to vote, the question for today is
how much of the terrain the civil rights model still captures. For section 5, this means a conspicuous mismatch between
the covered jurisdictions and the flashpoints of voting claims now focused on partisan battleground states such as
Colorado, Florida, Ohio, and Pennsylvania. In no state was ballot access more tightly fought and more generative of
major doctrinal developments than in Ohio. The Ohio litigation from 2004 to 2012 shows a new model emerging from
the courts, one grounded on a non-civil rights vision of fundamental guarantees that partially takes its inspiration from,
of all places, Bush v. Gore.
The centrality of Ohio in the contested presidential elections of 2004, 2008, and 2012 concentrated ballot-access
challenges before the Sixth Circuit. That court in turn has elaborated a new equal protection jurisprudence across cases
involving the use of inferior voting machines in some parts of the state, the disparities in election administration across
counties, n54 and the inconsistent treatment of provisional ballots. In each case, panels of the Sixth Circuit came back
to Bush v. Gore as standing for the proposition that the right to vote encompasses, in the language of Bush v. Gore,
"more than the initial allocation of the franchise. Equal protection applies as well to the manner of its exercise." n56 The
Sixth Circuit cases are noteworthy not because they are distinct from developments in other circuits - there is so far no
significant judicial resistance to confronting the new election challenges, although the number of such cases remains
limited thus far - but rather because the partisan stakes in Ohio have pushed the issue most aggressively in the political
and judicial arenas.
In Hunter v. Hamilton County Board of Elections, the most expansive of the Sixth Circuit cases prior to 2012, the
court focused on the statement in Bush v. Gore that there is a constitutional requirement under equal protection to
ensure the "nonarbitrary treatment of voters." From this, the Sixth Circuit established the new equal protection of the
franchise: "state actions in election processes must not result in "arbitrary and disparate treatment' of votes." n59 As a
matter of doctrine, the new equal protection of the right to vote expanded judicial scrutiny beyond the constricted
categories of outright denial of the franchise and protection of vulnerable minorities against mistreatment on account of
race or some other specified characteristic. Rather than carve out new categories of specific entitlements, such as a
certain number of early-voting opportunities or specific identification opportunities, the new equal protection limited
the prospects for strategic manipulation of access to the franchise by state officials, most notably the partisan aspirations
of legislatures or elected secretaries of state. In practical terms, this doctrine meant that Ohio was free to alter the
conduct of elections, but that the combination of a suspected constriction of voting opportunities and a lack of
substantial reasons for it would be constitutionally fatal.
This new equal protection was tested and strengthened in two major 2012 cases challenging the restriction on early
voting for nonmilitary voters and the disqualification of provisional ballots cast at the wrong precinct as a result of poll
worker error. In each case, the appellate court upheld lower court injunctions against Ohio's regulatory restrictions on
the ability to cast a vote. And, in each case, the court ruled with panels of Republican and Democratic appointees on the
frequently fractious Sixth Circuit proclaiming the need to calibrate the level of equal protection scrutiny to "the precise
Planet Debate 2014
February PF Topic – Voting Rights Act
134
character of the state's action and the nature of the burden on voters." As applied in Obama for America v. Husted, n63
a case turning on eve-of-election attempts to limit early-voting access, the Sixth Circuit elaborated the new model of
equal protection:
If the State merely placed "nonsevere, nondiscriminatory restrictions" on all voters, the restrictions would survive if
they could be sufficiently justified. On the other hand, if the State merely classified voters disparately but placed no
restrictions on their right to vote, the classification would survive if it had a rational basis. However, the State has done
both; it has classified voters disparately and has burdened their right to vote. Therefore, both justifications proffered by
the State must be examined to determine whether the challenged statutory scheme violates equal protection.
Although states are permitted broad discretion in devising the election scheme that fits best with the perceived needs of
the state, and there is no abstract constitutional right to vote by absentee ballot, eleventh-hour changes to remedial
voting provisions that have been in effect since 2005 and have been relied on by substantial numbers of voters for the
exercise of their franchise are properly considered as a burden ... . To conclude otherwise is to ignore reality.
This new equal protection helps insulate the right to vote from naked efforts at partisan manipulation. Though an
election law is not unconstitutional merely because it might reflect in part partisan motivations, the Supreme Court, in
cases like Crawford v. Marion County Election Board, had left open the possibility, or perhaps even suggested more
strongly, that a restriction on voting whose only plausible justification was pure partisanship might well not survive
constitutional scrutiny. As Justice Stevens wrote for the Crawford plurality: "If [partisan] considerations had provided
the only justification for a photo identification requirement, we may also assume that [such a law] would suffer the
same fate as the poll tax at issue in Harper [v. Virginia State Board of Elections]."
Section 5 no longer needed to confront current voting problems
Samuel Issacharoff, Harvard Law Review, November, 2013, COMMENT: BEYOND THE DISCRIMINATION
MODEL ON VOTING, Reiss Professor of Constitutional Law, New York University School of Law, p. 100
Shelby County thus closes the chapter on the most important and most successful of the civil rights laws from the
1960s. For the majority of the divided Court, the preclearance requirements of the VRA for changing electoral practices
stigmatized sovereign states and no longer bore a logical relation to the voting problems of today. At the same time, the
Court in Arizona v. Inter Tribal Council of Arizona n reaffirmed expansive congressional powers under the Elections
Clause. n26 The two Supreme Court cases invite a comparison of the distinct sources of federal power over elections
and an examination of their relative potential effectiveness in controlling the renewed battles over voter eligibility. The
argument presented is that current voting controversies, unlike the concerns of racial exclusion under Jim Crow, are
likely motivated by partisan zeal and emerge in contested partisan environments. The conclusion is a proposed
administrative process based on the Elections Clause that can potentially be more effective than the VRA approach
struck down in Shelby County.
New challenges for racial integration can’t be solved by Section 5
Samuel Issacharoff, Harvard Law Review, November, 2013, COMMENT: BEYOND THE
DISCRIMINATION MODEL ON VOTING, Reiss Professor of Constitutional Law, New York
University School of Law, p. 95-8
But even in the 1980s when I was handling these cases, section 5 was receding in importance as voting rights moved
into the domain of political power, not simply access to the franchise. Doctrinally, the transformative push was not to
maintain the status quo under the nonretrogression mandate of section 5 but to transform the electoral landscape using
the 1982 amendments to section 2 of the VRA. Even in those days, the formal structure of section 5 had accomplished
much of its purpose, removing the literacy tests and other barriers to black enfranchisement. The task at hand was to
challenge at-large elections and to create the electoral conditions not just for black citizens to vote, but also for these
black voters to elect their chosen candidates to office. It was a heady time as one after another exclusively white
legislative council began to be integrated. The stage was set for a transformed politics and the formal rigidity of section
5 was not quite keeping up.
Planet Debate 2014
February PF Topic – Voting Rights Act
135
Section 5 didn’t stop abusive voter ID requirements in South Carolina
Ellen D. Katz, law professor, University of Michigan, South Carolina's "Evolutionary Process", 113
COLUM. L. REV. SIDEBAR 55 (2013), http://www.columbialawreview.org/wpcontent/uploads/2013/03/55_Katz.pdf, p. 61-2
Second, South Carolina's present voter ID measure is different not only from the one the state itself would have passed
absent section 5, but also from the one the VRA, read most expansively, would have required. The approved provision
creates new challenges for voters lacking photo identification. While a voter presenting a non-photo voter registration
card was previously able to vote a regular ballot in person without question, that voter is now relegated to a provisional
ballot and must attest that a reasonable impediment blocked him or her from acquiring qualifying photo ID. That reason,
moreover, must be deemed truthful, if challenged. In other words, Act R54 makes voting more difficult than it had been
for voters lacking photo ID, and minority voters are disproportionately represented in this group. It does so, moreover,
to address a problem, namely, in-person voter fraud, that South Carolina had no evidence ever occurred.
For these reasons, South Carolina's voter ID requirement, even as it "evolved," looks much like the sort of measure the
VRA was meant to block and much like the sort of measure a federal court would have blocked during the early years
of the VRA's operation. The new obligations imposed on voters and the increased discretion vested in local officials all
sound in retrogression, at least as that standard had once been understood. And yet, by the time the South Carolina v.
United States panel reviewed Act R54, incremental burdens of the sort imposed by the South Carolina measure had
been approved in other cases. n48 Far from aberrational, then, South Carolina is the latest in a series of decisions that
applied section 5 more flexibly than in earlier years.
Planet Debate 2014
February PF Topic – Voting Rights Act
136
A2: Jurisdictions Will Revert Back to Discrimination Without the
VRA
Jurisdictions won’t revert back to discrimination without the VRA
Iyla Shapiro, Counsel of Record, August 20, 2012, CATO Amicus Curiae Brief, http://www.scotusblog.com/casefiles/cases/shelby-county-v-holder/
But without the threat of federal interference, would southern state legislatures feel free to engage
in mischief? It seems wildly improbable, even in the Deep South. Indeed, one of the latest VRA
remedial orders involved a black Democratic Party county chairman in Mississippi conspiring to
discriminate¶ against white voters. In the same vein, a 2008 Clarksdale, Mississippi, newspaper
editorial noted that “[t]here’s probably less chance today of election discrimination against
minorities occurring in Mississippi—given the high number of African-Americans in elected
office, including as county election commissioners—than in many parts of the country not
covered by the Voting Rights Act.” Yet Section 5 still “presumes that minorities are powerless to
protect their own election interests in places where they actually have the most clout.”
Planet Debate 2014
February PF Topic – Voting Rights Act
137
Voter ID Laws Aren’t Racist
Voter ID laws aren’t racist and don’t correlate with the Preclearance
jurisdictions
Samuel Issacharoff, Harvard Law Review, November, 2013, COMMENT: BEYOND THE DISCRIMINATION
MODEL ON VOTING, Reiss Professor of Constitutional Law, New York University School of Law, p. 103-4
With the passage of time since 1965, section 5 seemed superseded because of the shift from the issue of access to the
ballot to the issues of representation and the political empowerment of minorities. Paradoxically, the issue of access to
the franchise returned to the fore in recent years as part of a partisan effort to restrict that access in order to diminish the
political impact of vulnerable constituencies. In 2012, for example, twenty-four states passed laws that sought to impose
some form of voter restriction, either through identification requirements or through restrictions on access to early
voting. To an unavoidable extent, these laws likely had, at least in some parts of the country, a disparate racial impact.
But the racial impact was likely the means rather than the end: "When political preferences fall along racial lines, the
natural inclinations of incumbents and ruling parties to entrench themselves have predictable racial effects. Under
circumstances of severe racial polarization, efforts to gain political advantage translate into race-specific
disadvantages."
The likelihood that a state would have introduced restrictive voter identification laws in recent years turns on one
variable: Republican control of the state legislature. n46 No state under Democratic control passed significant voter
identification laws or sought to restrict early voting or voter access in the run-up to the 2012 presidential elections. For
example, passage of a restrictive voter registration law in Pennsylvania prompted one exultant Republican congressman
to proclaim that the state had just been delivered to the candidacy of Governor Romney, a claim that proved wrong as a
matter of law and fact. n49 While some of the states that sought to implement restrictive voter access laws were covered
by section 5, there was no concentration of such laws in the covered jurisdictions. Notably, in all the litigation prompted
by these laws, section 5 had force only in Texas and Florida.
Planet Debate 2014
February PF Topic – Voting Rights Act
138
Discrimination Not as Widespread
Blatantly discriminatory practices have been banned and African American
participation in politics has skyrocketed
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.
Discrimination is not “pervasive,” “flagrant,” “widespread,” or “rampant.”
Chief Justice Roberts et al, 2013 (+ justices Scalia, Kennedy, Thomas, and Alito, Shelby County v. Holder, June 25,
http://www2.bloomberglaw.com/public/desktop/document/Shelby_Cnty_v_Holder_No_1296_2013_BL_167707_US_J
une_25_2013_Court)
In defending the coverage formula, the Government, the intervenors, and the dissent also rely
heavily on data from the record that they claim justify disparate coverage. Congress compiled
thousands of pages of evidence before reauthorizing the Voting Rights Act. The court below and
the parties have debated what that record shows — they have gone back and forth about whether
to compare covered to noncovered jurisdictions as blocks, how to disaggregate the data State by
State, how to weigh § 2 cases as evidence of ongoing discrimination, and whether to consider
evidence not before Congress, among other issues. Regardless of how to look at the record,
however, no one can fairly say that it shows 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. But a more
fundamental problem remains: Congress did not use the record it compiled to shape a coverage
formula grounded in current conditions. It instead reenacted a formula based on 40-year-old facts
having no logical relation to the present day. The dissent relies on "second-generation barriers,"
which are not impediments to the casting of ballots, but rather electoral arrangements that affect
the weight of minority votes. That does not cure the problem. Viewing the preclearance
requirements as targeting such efforts simply highlights the irrationality of continued reliance on
the § 4 coverage formula, which is based on voting tests and access to the ballot, not vote
dilution. We cannot pretend that we are reviewing an updated statute, or try our hand at updating
the statute ourselves, based on the new record compiled by Congress. Contrary to the dissent's
contention, see post, at 23, we are not ignoring the record; we are simply recognizing that it
played no role in shaping the statutory formula before us today.
Discriminatory conditions are not the same as when the test was constructed
US Supreme Court, June 2013, Holding of Shelby County v. Holder,
http://www2.bloomberglaw.com/public/desktop/document/Shelby_Cnty_v_Holder_No_1296_2013
Planet Debate 2014
February PF Topic – Voting Rights Act
139
_BL_167707_US_June_25_2013_Court
3) Nearly 50 years later, things have changed dramatically. Largely because of the Voting Rights
Act, "[v]oter turnout and registration rates" in covered jurisdictions "now approach parity.
Blatantly discriminatory evasions of federal decrees are rare. And minority candidates hold office
at unprecedented levels." Northwest Austin, supra, at 202. The tests and devices that blocked
ballot access have been forbidden nationwide for over 40 years. Yet the Act has not eased § 5's
restrictions or narrowed the scope of § 4's coverage formula along the way. Instead those
extraordinary and unprecedented features have been reauthorized as if nothing has changed, and
they have grown even stronger. Because § 5 applies only to those jurisdictions singled out by § 4,
the Court turns to consider that provision.
(b) Section 4's formula is unconstitutional in light of current conditions.
(1) In 1966, the coverage formula was "rational in both practice and theory." Katzenbach, supra,
at 330. It looked to cause (discriminatory tests) and effect (low voter registration and turnout),
and tailored the remedy (preclearance) to those jurisdictions exhibiting both. By 2009, however,
the "coverage formula raise[d] serious constitutional questions." Northwest Austin, supra, at 204.
Coverage today is based on decades-old data and eradicated practices. The formula captures
States by reference to literacy tests and low voter registration and turnout in the 1960s and early
1970s. But such tests have been banned for over 40 years. And voter registration and turnout
numbers in covered States have risen dramatically. In 1965, the States could be divided into those
with a recent history of voting tests and low voter registration and turnout and those without those
characteristics. Congress based its coverage formula on that distinction. Today the Nation is no
longer divided along those lines, yet the Voting Rights Act continues to treat it as if it were.
(2) The Government attempts to defend the formula on grounds that it is "reverse-engineered" —
Congress identified the jurisdictions to be covered and then came up with criteria to describe
them. Katzenbach did not sanction such an approach, reasoning instead that the coverage formula
was rational because the "formula . . . was relevant to the problem." 383 U. S., at 329, 330. The
Government has a fallback argument — because the formula was relevant in 1965, its continued
use is permissible so long as any discrimination remains in the States identified in 1965. But this
does not look to "current political conditions," Northwest Austin, supra, at 203, instead relying on
a comparison between the States in 1965. But history did not end in 1965. In assessing the
"current need[]" for a preclearance system treating States differently from one another today,
history since 1965 cannot be ignored. The Fifteenth Amendment is not designed to punish for the
past; its purpose is to ensure a better future. To serve that purpose, Congress — if it is to divide
the States — must identify those jurisdictions to be singled out on a basis that makes sense in
light of current conditions.
Respondents also rely heavily on data from the record com piled by Congress before
reauthorizing the Act. Regardless of how one looks at that record, 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. But a more fundamental problem remains: Congress did not use that record to fashion a
coverage formula grounded in current conditions. It instead re-enacted a formula based on 40year-old facts having no logical relation to the present day.
Planet Debate 2014
February PF Topic – Voting Rights Act
140
African American voter turnout conditions have changed substantially since
the passage of the VRA
Chief Justice Roberts et al, 2013 (+ justices Scalia, Kennedy, Thomas, and Alito, Shelby County v. Holder, June 25,
http://www2.bloomberglaw.com/public/desktop/document/Shelby_Cnty_v_Holder_No_1296_2013_BL_167707_US_J
une_25_2013_Court)
Nearly 50 years later, they are still in effect; indeed, they have been made more stringent, and are
now scheduled to last until 2031. There is no denying, however, that the conditions that originally
justified these measures no longer characterize voting in the covered jurisdictions. By 2009, "the
racial gap in voter registration and turnout [was] lower in the States originally covered by § 5
than it [was] nationwide." Since that time, Census Bureau data indicate that African-American
voter turnout has come to exceed white voter turnout in five of the six States originally covered
by § 5, with a gap in the sixth State of less than one half of one percent.
Blatant discrimination is rare
Chief Justice Roberts et al, 2013 (+ justices Scalia, Kennedy, Thomas, and Alito, Shelby County v. Holder, June 25,
http://www2.bloomberglaw.com/public/desktop/document/Shelby_Cnty_v_Holder_No_1296_2013_BL_167707_US_J
une_25_2013_Court)
Nearly 50 years later, things have changed dramatically. Shelby County contends that the
preclearance requirement, even without regard to its disparate coverage, is now unconstitutional.
Its arguments have a good deal of force. In the covered jurisdictions, "[v]oter turnout and
registration rates now approach parity. Blatantly discriminatory evasions of federal decrees are
rare. And minority candidates hold office at unprecedented levels." The tests and devices that
blocked access to the ballot have been forbidden nationwide for over 40 years. Those
conclusions are not ours alone. Congress said the same when it reauthorized the Act in 2006,
writing that "[s]ignificant progress has been made in eliminating first generation barriers
experienced by minority voters, including increased numbers of registered minority voters,
minority voter turnout, and minority representation in Congress, State legislatures, and local
elected offices." The House Report elaborated that "the number of African-Americans who are
registered and who turn out to cast ballots has increased significantly over the last 40 years,
particularly since 1982," and noted that "[i]n some circumstances, minorities register to vote and
cast ballots at levels that surpass those of white voters." H. R. Rep. No. 109-478, p. 12 (2006).
That Report also explained that there have been "significant increases in the number of AfricanAmericans serving in elected offices"; more specifically, there has been approximately a 1,000
percent increase since 1965 in the number of African-American elected officials in the six States
originally covered by the Voting Rights Act. I
The following chart, compiled from the Senate and House Reports, compares voter registration
numbers from 1965 to those from 2004 in the six originally covered States. These are the
numbers that were before Congress when it reauthorized the Act in 2006:
1965
White Black
Gap
2004
White Black
Gap
Planet Debate 2014
February PF Topic – Voting Rights Act
Alabama
69.2
Georgia
62.[6]
Louisiana
80.5
Mississippi
69.9
South Carolina 75.7
Virginia
61.1
19.3 49.9 73.8 72.9 0.9
27.4 35.2 63.5 64.2 -0.7
31.6 48.9 75.1 71.1 4.0
6.7 63.2 72.[***12] 3 76.1
37.3 38.4 74.4 71.1 3.3
38.3 22.8 68.2 57.4 10.8
141
-3.8
The 2004 figures come from the Census Bureau. Census Bureau data from the most recent
election indicate that African-American voter turnout exceeded white voter turnout in five of the
six States originally covered by § 5, with a gap in the sixth State of less than one half of one
percent. The preclearance statistics are also illuminating. In the first decade after enactment of §
5, the Attorney General objected to 14.2 percent of proposed voting changes. In the last decade
before reenactment, the Attorney General objected to a mere 0.16 percent.
Substantial improvements and no change in the formula
Chief Justice Roberts et al, 2013 (+ justices Scalia, Kennedy, Thomas, and Alito, Shelby County v. Holder, June 25,
http://www2.bloomberglaw.com/public/desktop/document/Shelby_Cnty_v_Holder_No_1296_2013_BL_167707_US_J
une_25_2013_Court)
There is no doubt that these improvements are in large part because of the Voting Rights Act. The
Act has proved immensely successful at redressing racial discrimination and integrating the
voting process. During the "Freedom Summer" of 1964, in Philadelphia, Mississippi, three men
were murdered while working in the area to register African-American voters. See United States
v. Price, 383 U. S. 787, 790 (1966). On "Bloody Sunday" in 1965, in Selma, Alabama, police beat
and used tear gas against hundreds marching in support of African-American enfranchisement.
See Northwest Austin, supra, at 220, n. 3 (THOMAS, J., concurring in judgment in part and
dissenting in part). Today both of those towns are governed by African-American mayors.
Problems remain in these States and others, but there is no denying that, due to the Voting Rights
Act, our Nation has made great strides. Yet the Act has not eased the restrictions in § 5 or
narrowed the scope of the coverage formula in § 4(b) along the way. Those extraordinary and
unprecedented features were reauthorized — as if nothing had changed. In fact, the Act's unusual
remedies have grown even stronger. When Congress reauthorized the Act in 2006, it did so for
another 25 years on top of the previous 40 — a far cry from the initial five-year period. See 42 U.
S. C. § 1973b(a)(8). Congress also expanded the prohibitions in § 5. We had previously
interpreted § 5 to prohibit only those redistricting plans that would have the purpose or effect of
worsening the position of minority groups. In 2006, Congress amended § 5 to prohibit laws that
could have favored such groups but did not do so because of a discriminatory purpose, see 42 U.
S. C. § 1973c(c), even though we had stated that such broadening of § 5 coverage would
"exacerbate the substantial federalism costs that the preclearance procedure already exacts,
perhaps to the extent of raising concerns about § 5's constitutionality.”In addition, Congress
expanded § 5 to prohibit any voting law "that has the purpose of or will have the effect of
diminishing the ability of any citizens of the United States," on account of race, color, or
language minority status, "to elect their preferred candidates of choice." In light of those two
amendments, the bar that covered jurisdictions must clear has been raised even as the conditions
justifying that requirement have dramatically improved. We have also previously highlighted the
concern that "the preclearance requirements in one State [might] be unconstitutional in another."
Planet Debate 2014
February PF Topic – Voting Rights Act
142
Planet Debate 2014
February PF Topic – Voting Rights Act
143
A2: Racism Still Widespread
Racial gap currently lower in the covered states
Iyla Shapiro, Counsel of Record, August 20, 2012, CATO Amicus Curiae Brief, http://www.scotusblog.com/casefiles/cases/shelby-county-v-holder/
Moreover, Section 5’s preclearance system is an anachronism. As this Court found three terms
ago. The evil that § 5 is meant to address may no longer be concentrated in the jurisdictions
singled out for preclearance. The statute’s cover- age 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. For example, the racial gap in voter registration and turnout is lower in the States
originally covered by § 5 than it is nationwide.
No evidence supports the claim that racism is as rampant as it was in 1965
Iyla Shapiro, Counsel of Record, August 20, 2012, CATO Amicus Curiae Brief, http://www.scotusblog.com/casefiles/cases/shelby-county-v-holder/
“Discrimination [in voting] today is more subtle than the visible methods used in 1965. However,
the effects and results are the same,” the House Judiciary Committee reported. H.R. Rep. No.
109-478, at 6 (2006). “Vestiges of discrimination continue to exist . . . [preventing] minority
voters from fully participataing in the electoral process,” the amended statute it- self read. Pub. L.
No. 109-246 § 2(b)(1)(2) (2006).¶ No evidence supported such extreme claims. The skepticism of
those who can’t forget Jim Crow is understandable, but the South they remember is gone (and the
discrimination that existed there never did in Alaska, Arizona, Manhattan, etc.). As the Court
declared in NAMUDNO, “things have changed in the South” and “conditions . . . relied upon in
upholding the statutory scheme in Katzenbach and City of Rome have unquestionably improved.”
Black voter registration at an all-time high
Iyla Shapiro, Counsel of Record, August 20, 2012, CATO Amicus Curiae Brief, http://www.scotusblog.com/casefiles/cases/shelby-county-v-holder/
Massive disfranchisement is ancient history, as unlikely to return as segregated water fountains.
America is no longer a land where whites hold the levers of power and minority representation
depends on extraordinary federal intervention, consistent with the Constitution only as an
emergency measure. To- day, southern states have some of the highest black voter-registration
rates in the nation; over 900 blacks hold public office in Mississippi alone. By the 2008 election,
a stunning 69.7 percent of the black population was registered to vote and turn- out rates were
similarly impressive. By 2008, there were 41 members of the Congressional Black Caucus;
almost 600 African-Americans held seats in state legislatures, and another 8,800 were mayors,
sheriffs, school board members, and the like. Forty-seven percent of these officials lived in
Section 5 states, even though those states contained only 30 percent of the nation’s black
population. The bottom line is indisputable: Section 5 states elect black candidates at higher rates
than the rest of the country.
Planet Debate 2014
February PF Topic – Voting Rights Act
144
A2: Some Discrimination Still Exists
But it’s not the same discrimination as in 1965 and a new formula should be
adopted to reflect that
Chief Justice Roberts et al, 2013 (+ justices Scalia, Kennedy, Thomas, and Alito, Shelby County v. Holder, June 25,
http://www2.bloomberglaw.com/public/desktop/document/Shelby_Cnty_v_Holder_No_1296_2013_BL_167707_US_J
une_25_2013_Court)
The Government falls back to the argument that because the formula was relevant in 1965, its
continued use is permissible so long as any discrimination remains in the States Congress
identified back then — regardless of how that discrimination compares to discrimination in States
unburdened by coverage. This argument does not look to "current political conditions,"
Northwest Austin, but instead relies on a comparison between the States in 1965. That
comparison reflected the different histories of the North and South. It was in the South that
slavery was upheld by law until uprooted by the Civil War, that the reign of Jim Crow denied
African-Americans the most basic freedoms, and that state and local governments worked
tirelessly to disenfranchise citizens on the basis of race. The Court invoked that history — rightly
so — in sustaining the disparate coverage of the Voting Rights Act in 1966. But history did not
end in 1965. By the time the Act was reauthorized in 2006, there had been 40 more years of it. In
assessing the "current need[]" for a preclearance system that treats States differently from one
another today, that history cannot be ignored. During that time, largely because of the Voting
Rights Act, voting tests were abolished, disparities in voter registration and turnout due to race
were erased, and African-Americans attained political office in record numbers. And yet the
coverage formula that Congress reauthorized in 2006 ignores these developments, keeping the
focus on decades-old data relevant to decades-old problems, rather than current data reflecting
current needs.
Planet Debate 2014
February PF Topic – Voting Rights Act
145
A2: Must Uphold the 15th Amendment
The 15th Amendment is about the future, not the past
Chief Justice Roberts et al, 2013 (+ justices Scalia, Kennedy, Thomas, and Alito, Shelby County v. Holder, June 25,
http://www2.bloomberglaw.com/public/desktop/document/Shelby_Cnty_v_Holder_No_1296_2013_BL_167707_US_J
une_25_2013_Court)
The Fifteenth Amendment commands that the right to vote shall not be denied or abridged on
account of race or color, and it gives Congress the power to enforce that command. The
Amendment is not designed to punish for the past; its purpose is to ensure a better future. See
Rice v. Cayetano, 528 U. S. 495, 512 (2000) ("Consistent with the design of the Constitution, the
[Fifteenth] Amendment is cast in fundamental terms, terms transcending the particular
controversy which was the immediate impetus for its enactment."). To serve that purpose,
Congress — if it is to divide the States — must identify those jurisdictions to be singled out on a
basis that makes sense in light of current conditions. It cannot rely simply on the past. We made
that clear in Northwest Austin, and we make it clear again today.
Planet Debate 2014
February PF Topic – Voting Rights Act
146
A2: There is Voter Discrimination in Shelby County
Shelby county can still challenge the formula
Chief Justice Roberts et al, 2013 (+ justices Scalia, Kennedy, Thomas, and Alito, Shelby County v. Holder, June 25,
http://www2.bloomberglaw.com/public/desktop/document/Shelby_Cnty_v_Holder_No_1296_2013_BL_167707_US_J
une_25_2013_Court)
The dissent also turns to the record to argue that, in light of voting discrimination in Shelby
County, the county cannot complain about the provisions that subject it to preclearance. But that
is like saying that a driver pulled over pursuant to a policy of stopping all redheads cannot
complain about that policy, if it turns out his license has expired. Shelby County's claim is that
the coverage formula here is unconstitutional in all its applications, because of how it selects the
jurisdictions subjected to preclearance. The county was selected based on that formula, and may
challenge it in court.
Planet Debate 2014
February PF Topic – Voting Rights Act
147
Section 2 Solves
Section 2 also prevents discrimination. The Supreme Court decision only
struck-down targeted enforcement
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."
Section 2 prevents discrimination in voting nation-wide and is enforced by the
federal government
Chief Justice Roberts et al, 2013 (+ justices Scalia, Kennedy, Thomas, and Alito, Shelby County v. Holder, June 25,
http://www2.bloomberglaw.com/public/desktop/document/Shelby_Cnty_v_Holder_No_1296_2013_BL_167707_US_J
une_25_2013_Court)
Inspired to action by the civil rights movement, Congress responded in 1965 with the Voting
Rights Act. Section 2 was enacted to forbid, 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." The current version 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." Both the Federal Government and individuals have sued to enforce § 2,
and injunctive relief is available in appropriate cases to block voting laws from going into
effect.Section 2 is permanent, applies nationwide, and is not at issue in this case.
Planet Debate 2014
February PF Topic – Voting Rights Act
148
VRA Increases Racism
VRA encourages racial gerrymandering
Iyla Shapiro, Counsel of Record, August 20, 2012, CATO Amicus Curiae Brief, http://www.scotusblog.com/casefiles/cases/shelby-county-v-holder/
At its inception, the VRA stood on firm constitutional ground; it was pure antidiscrimination
legislation designed to enforce basic rights. A clear principle justified its original enactment: skin
color should be irrelevant when states determine voting eligibility. Unfortunately, clarity has been
lost. Nearly 50 years later, the law has become what Judge Bruce Selya described as a “Serbonian
bog.” The legal landscape looks solid but is really a quagmire into which “plaintiffs and
defendants, pundits and policymakers, judges and justices” have sunk. Id.¶ In NAMUDNO, this
Court fired unmistakable warnings at Congress. Although it recognized the historic achievements
of the VRA, the Court stated that “past success alone” is no longer “adequate justification to
retain the preclearance requirements.” The Court had originally upheld Section 5 as a temporary
exercise of federal power, concluding that “exceptional conditions could justify legislative
measures not otherwise appropriate.” But the statutes that Congress subsequently passed go far
beyond enforcing voting rights and, perversely, encourage segregation through racial
gerrymandering.
Section 5 violates equal protection
Iyla Shapiro, Counsel of Record, August 20, 2012, CATO Amicus Curiae Brief, http://www.scotusblog.com/casefiles/cases/shelby-county-v-holder/
The Court again faces here the tension between Section 5 and the Constitution’s nondiscrimination mandate. As Justice Kennedy noted in Ashcroft, Section 5 imposes a serious
dilemma when consideration of race would constitutionally condemn a proposed regulation just
as preclearance demands it. 539 U.S. at 491 (Kennedy, J., concurring) (“There is a fundamental
flaw . . . in any scheme in which the Department of Justice is permitted or directed to encourage
or ratify a course of unconstitutional conduct in order to find compliance with a statutory
directive.”). Judge Williams below echoed Justice Kennedy’s concerns: Section 5 “not only
mandates race-conscious decision-making, but a particular brand of it” that departs from “the
Reconstruction Amendments’¶ commitment to nondiscrimination.” Shelby County, 679 F.3d at
887-888 (Williams, J., dissenting).¶ The VRA quite literally denies the equal protection of the
laws by providing legal guarantees to some racial groups that it denies others. For example, a
minority group may be entitled to a racially gerrymandered district while other groups are not so
entitled and indeed may lack protection against districting that hurts them. This is nothing if not
treating people differently based on race. Under the Constitution, no racial group should be
assured ‘‘safe’’ districts or districts of ‘‘influence” unless all other groups are given the same
guarantee—an impossibility even if it were a good idea.¶ Despite having achieved so much
success early on, the continual effort to invent new justifications for Section 5—as well as
Congress’s prescription of one- dimensional remedies for electoral equality—are sowing the
seeds for future conflict. The racial balkanization Section 5 fosters is so pernicious that this Court
has repeatedly warned about its unconstitutionality. The segregated districts that racial
gerrymandering creates have led to uncompetitive elections, increased polarization (racial and
ideological), and the insulation of Republican candidates and incumbents from minority voters—
Planet Debate 2014
February PF Topic – Voting Rights Act
149
as well as the insulation of minority candidates and incumbents from white voters (contributing to
these politicians’ difficulties in running for state- wide office). As Chief Justice Roberts wrote, it
is ‘‘a sordid business, this divvying us up by race.’’ Ironically, the VRA has become an obstacle
to racial integration. Race-based districts have kept most black legislators from the political
mainstream— precisely the opposite of what the law’s framers in- tended. As of 2006, for
example, all Congressional Black Caucus members were more liberal than the average white
Democrat. Majority-minority districts reward politicians who make the sort of racial appeals that
are the staple of invidious identity politics. People across the political spectrum end up with more
extreme views than they would otherwise hold when they talk only to those who are similarlyminded. See generally Cass Sun- stein, Republic.com (2001).¶ Not all black politicians have been
trapped in safe minority districts, of course. Barack Obama himself lost a congressional race but
went on to win a state- wide election. A decade earlier, Mike Coleman be- came the first black
mayor of Columbus, Ohio, with the strategy: “Woo the white voters first . . . then come home to
the base later.” Unfortunately, such candidates remain the exception. The VRA was meant to
level the playing field but has been used to maximize black districts. The ugly implication is that
black politicians need such help to win—but then their message is honed to appeal to limited
constituencies. The marginalization that the VRA targets instead becomes entrenched.
Focusing on creating black political districts undermines efforts necessary to
create biracial coalitions
Iyla Shapiro, Counsel of Record, August 20, 2012, CATO Amicus Curiae Brief, http://www.scotusblog.com/casefiles/cases/shelby-county-v-holder/
First, actions that are perfectly legitimate are abandoned. Focusing obsessively on guaranteeing
majority-minority districts detracts from experimentation with alternative methods of advancing
minority political power and may prevent the election of pragmatic candidates who can create
“biracial coalitions which [could be] key to passing racially progressive policies.” For instance,
Judge Williams explained below that in Ashcroft, Georgia “gave covered jurisdictions an
opportunity to make trade-offs between concentrating minority vot-ers in increasingly safe
districts and spreading some of those voters out into additional districts; the latter choice, the
Court pointed out, might increase the ‘substantive representation’ they enjoy and lessen the risks
of ‘isolating minority voters from the rest of the state’ and of ‘narrowing their political influence
to only a fraction of political districts’. A similar dynamic may be at work in the reforms at issue
in Nix.¶ Section 2 solves¶ Given Section 5’s unconstitutional burdens, that provision’s conflict
with Section 2 should be resolved in favor of the latter. In allowing a private right of action,
Section 2 provides the appropriate means for enforcing the Fifteenth Amendment and ensuring
that any state practice which “results in a denial or abridgment of voting rights,” 42 USC § 1973a,
can be effectively remedied. That private right of action is a more targeted remedy, empowering
citizens to litigate specific discriminatory acts—in contrast to Section 5’s broad sweep, which
ensnares every voting change, no matter how miniscule or banal.¶ When the Court upheld the
VRA in 1966 it found that Section 5’s generalized remedial mechanism was necessary because
individualized litigation under Section 2 could not effectively fight such “widespread and
persistent discrimination in voting.” Although Section 5’s generalized re- medial role was once
appropriate and necessary in turning the tide against such “systematic resistance to the Fifteenth
Amendment” and defeating “obstructionist tactics” id., modern instances of discrimination are
discrete rather than systemic. Facetious¶ tests and sinister devices that eluded private rights of
action are now permanently banned—while even Section 2 violations are exceedingly rare and
not disproportionate to Section 5 jurisdictions.¶ Courts have also contemplated whether Section 2
provides an adequate remedy, raising concerns about the costs and expediency. The DOJ can
Planet Debate 2014
February PF Topic – Voting Rights Act
150
essentially assume plaintiffs’ costs for Section 2 suits, however, by either initiating the action
itself or “intervening in support of the plaintiff as it often does.” Moreover, prevailing parties in a
Section 2 suit are reimbursed attorney and expert fees. Id. As for the issue of expediency, when
discriminatory practices are imminent and threaten injury before parties have had the opportunity
to litigate, the courts may issue a preliminary injunction “to prevent irreparable harm caused by
adjudicative delay.” Nothing in the legislative record of the 2006 VRA amendments suggests that
Section 2 private rights of action would be an in- adequate remedy.¶ In sum, Section 5’s
extraordinary measures are no longer constitutionally justifiable because entrenched
discrimination is gone. The Court’s conclusion in Katzenbach that section 5 is a necessary
supplement to Section 2 is no longer warranted.
Planet Debate 2014
February PF Topic – Voting Rights Act
151
A2: It Deters Behavior
The deterrence argument would immunize Section 5 from any
review ever
Chief Justice Roberts et al, 2013 (+ justices Scalia, Kennedy, Thomas, and Alito, Shelby County v. Holder, June 25,
http://www2.bloomberglaw.com/public/desktop/document/Shelby_Cnty_v_Holder_No_1296_2013_BL_167707_US_J
une_25_2013_Court)
Respondents do not deny that there have been improvements on the ground, but argue that much
of this can be attributed to the deterrent effect of § 5, which dissuades covered jurisdictions from
engaging in discrimination that they would resume should § 5 be struck down. Under this theory,
however, § 5 would be effectively immune from scrutiny; no matter how "clean" the record of
covered jurisdictions, the argument could always be made that it was deterrence that accounted
for the good behavior.
Planet Debate 2014
February PF Topic – Voting Rights Act
152
Coverage formula Old/Static
If the VRA started in 2006, it would not have used the same coverage
requirements
Chief Justice Roberts et al, 2013 (+ justices Scalia, Kennedy, Thomas, and Alito, Shelby County v. Holder, June 25,
http://www2.bloomberglaw.com/public/desktop/document/Shelby_Cnty_v_Holder_No_1296_2013_BL_167707_US_J
une_25_2013_Court)
There is no valid reason to insulate the coverage formula from review merely because it was
previously enacted 40 years ago. If Congress had started from scratch in 2006, it plainly could not
have enacted the present coverage formula. It would have been irrational for Congress to
distinguish between States in such a fundamental way based on 40-year-old data, when today's
statistics tell an entirely different story. And it would have been irrational to base coverage on the
use of voting tests 40 years ago, when such tests have been illegal since that time. But that is
exactly what Congress has done. No constitutional amendment simply automatically trumps the
other, but must be balanced when they are in tension. The Tenth Amendment is often in tension
with individual rights amendments and those tensions must be balanced by the court.
The coverage data is outdated and inconsistent with reality
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. 294
With the 2006 reauthorization, Congress had the opportunity to amend the coverage formula to better represent
current political conditions, but it actively chose not to do so. Thus, under the Act as passed, come 2031, jurisdictions
that committed voting violations in the 1960s and 1970s and that have not achieved bailout will still need preclearance
from the federal government to pass new voting legislation. Yet, according to Representative Norwood, if the formula's
underlying data had been changed to only include voter registration data and turnout rates from the 1996, 2000, and
2004 presidential elections, Hawaii would be the only fully covered state.
The covered jurisdictions under the updated data formula are not ones that have had a long history of voter
discrimination. n191 During oral arguments for NAMUDNO, Chief Justice Roberts pointedly asked if the position of
the appellant was that "southerners are more likely to discriminate than northerners" since the current coverage
formula's use of data from over forty years ago causes it to disproportionately cover southern jurisdictions. The
difference between the jurisdictions that are identified by the "updated" formula compared to the current formula is too
wide for the Court to reasonably conclude that the formula reflects current political conditions.
Furthermore, the criteria used to determine covered and non-covered jurisdictions is outdated. The coverage
formula was created at a time when Congress was trying to fight against first-generation barriers to voting, such as poll
taxes, literacy tests, and outward intimidation at voting sites. These barriers are different from the voter polarization and
vote dilution problems that Congress is trying to combat today. Yet, Congress's shift in focus has not led it to change the
criteria used to identify jurisdictions. The current coverage formula is unable to identify jurisdictions that are currently
covered for first-generation offenses that have not had second-generation offenses. Therefore, the coverage formula is
unconstitutionally superseding the sovereignty of States that do not have second-generation offenses.
Despite the bailout and bail-in corrective provisions of the Act, the Court is still unlikely to uphold the current
formula. Since 1984, thirty-eight bailouts have been granted for 196 jurisdictions, with twenty of those bailouts
occurring after the Court's NAMUDNO decision expanded the availability of bailout to many more jurisdictions. The
NAMUDNO Court seemed less than enthused by the number of bailouts from 1982 to 2008. Moreover, the requirements
to maintain bailout status n197 may still prove too onerous. Thus, the Court should strike the coverage formula because
the data and criteria used are outdated, and because it is considerably difficult for a jurisdiction to achieve bailout. This
will signal to Congress that a formula must rationally relate to current conditions to justify its use for an extended period
of time.
Planet Debate 2014
February PF Topic – Voting Rights Act
153
Section 4(b) enforcement was based on a static regulatory structure that
ignores the dynamism of electoral politics
Samuel Issacharoff, Harvard Law Review, November, 2013, COMMENT: BEYOND THE
DISCRIMINATION MODEL ON VOTING, Reiss Professor of Constitutional Law, New York University
School of Law, p. 116-7
Section 5 corresponds to an older, highly formal vision of ex ante controls on the range of permissible conduct.
Under section 4 of the Act, as originally designed, certain practices were simply prohibited, such as the use of literacy
tests. Section 5 was designed to prohibit the reintroduction of the specified procedures by requiring administrative
preclearance by the DOJ or the D.C. District Court prior to any new implementation. The category of prohibited
conduct expanded with Beer v. United States to include any "changes ... that would lead to a retrogression in the
position of racial minorities." Professors Guy-Uriel Charles and Luis Fuentes-Rohwer captured this well when they
wrote: "Under this model, Congress identifies both violators and violations. More specifically, it deploys positive law
and uses the courts to closely monitor violators and prevent or remedy violations... . This is the world within which
section 5 currently operates and the world that some voting rights activists are trying to preserve."
As time wore on, the regulatory mechanism appeared increasingly removed from the perceived harm, as manifested
by the vanishingly small number of submissions that actually elicited any form of administrative objection from the
DOJ. There is no necessary reason that civil rights enforcement needs to take this particular command-and-control form
of ex ante prohibitions, although the tendency is clearly in that direction. Perhaps the weight of the prohibitions on
intentional discrimination push the field in that direction, or perhaps, as noted by the Court when it first upheld the
Voting Rights Act, the gravity of the concerns requires that the benefits of "time and inertia" be shifted against potential
wrongdoing. In order to do so, the commands of section 5 had to be clear and static, a fixed rule trying to hold back the
subtle changes of politics. Outside the domain of civil rights law, it is hard to come up with a similar regulatory regime
that is premised on a fifty-year-old trigger formula that operates by presuming against all change. The problem
ultimately is a "static regulatory structure" unable easily to account for changed circumstances; the fact remains,
"electoral politics is nothing if not dynamic." n115 Indeed, the account in Shelby County of the effect of the different
historical circumstances does introduce some attention to the form of the regulatory model, n116 even leaving aside the
question of the fit of a coverage formula triggered by events a half century ago.
If the ex ante race discrimination model cannot survive after Shelby County, what alternatives are available? The
most attractive alternative would be to take election administration away from any connection to politics, using a
process-based approach to remove improper agent incentives. Indeed, insulating election administration from potential
misuse stands at the heart of the "procedural guarantees" in the Code of Good Practice in Electoral Matters developed
by the European Commission for Democracy Through Law. The Commission requires that "an impartial body ... be in
charge of applying electoral law," that independence be guaranteed at all levels of election administration, and that the
administration of elections be overseen by a permanently staffed central electoral commission. All these measures are
designed to promote the "administrative authorities' independence from those holding political power."
Planet Debate 2014
February PF Topic – Voting Rights Act
154
A2: The Decision Was Activist
“Activism” is just a disparaging and unhelpful term
JUSTICE THOMAS R. LEE has been a member of the Utah Supreme Court since July 2010.
Utah Bar Journal, November / December, 2013, VIEWS FROM THE BENCH: JUDICIAL ACTIVISM,
RESTRAINT, & THE RULE OF LAW
A left-leaning commentator speaking of the court's decision striking down section 4 of the Voting Rights Act, on the
other hand, might speak in these terms: "The Shelby County v. Holder decision is written by activist judges who just
don't understand the continuing realities of racism in America today."
Each of these three uses is problematic for its own reasons. But they all share a common, fundamental flaw: They all
employ the rhetoric of activism in a manner that is both unprincipled and unhelpful.
The first two notions of activism suffer from the same problem: They are hopelessly overbroad and thus do not
encompass any useful criteria for separating illegitimate uses of the judicial power from legitimate ones. As to decisions
that override the acts of democratically elected branches of government, the obvious response is that at least since
Marbury v. Madison, it has been a core part of the court's job to consider the constitutionality of legislation passed by
Congress and signed into law by the President. If we accept Marbury, as most everyone properly does, then the
judiciary cannot be deemed to be performing an ultra vires act - to be "activist" - when it performs one of the core
functions recognized in its settled precedent. Thus, the court could not appropriately be derided as activist in the
"Obamacare" case on the sole ground that its decision had the effect of striking down the "duly constituted and passed"
Affordable Care Act. The "a" word label doesn't apply here any more than it does to the court's decision rejecting the
appellate defense of Prop. 8 in Hollingsworth v. Perry. You can criticize either or both of those decisions as wrong on
their merits. But you can't properly add the "activist" epithet to your criticism just because these decisions pit the
unelected court against the elected branches of government. That's the unelected court's job under Marbury, not a
ground for scornful use of the "a" word. If a court declined to do that job, that would be grounds for questioning the
legitimacy of its decision. (I suppose it wouldn't make much sense to call such dereliction "activism"; you'd have to coin
a new term to capture it - "judicial abdication" comes to mind - but whatever you called it, it would certainly be worthy
of scorn.)
The second notion of activism falters on similar grounds. Although everyone agrees that judicial precedents are worthy
of a degree of respect and deference, no one that I know of embraces an ironclad ban on overruling precedent in all
circumstances. With this in mind, we can also say that the judiciary cannot be deemed to be abusing its power whenever
it overrules itself. The validity of such an overruling decision must instead be evaluated on the basis of its case-by-case
merits, which will turn on settled criteria under the doctrine of stare decisis, such as whether the decision in question is
demonstrably incorrect, whether it has been undermined or rendered unworkable by subsequent authority, and whether
significant reliance interests have built up around it. Thus, again, Kimel and Roper cannot be derided as "activist"
simply because of their effect on prior precedent. In fact, if the decisions they overruled merited no deference under the
doctrine of stare decisis, then the court's decisions overruling them were not only not an abuse of judicial power but a
perfectly appropriate use of it.
My point is easy to support with iconic examples of judicial decisionmaking. Some of the U.S. Supreme Court's most
venerable decisions simultaneously overruled settled precedent while striking down legislation passed by the people's
representatives in government. Brown v. Board of Education is a prominent example. It struck down settled precedent
(Plessy v. Ferguson) while invalidating "duly constituted" legislation passed by the people's representatives in state
legislatures throughout the South. Similarly, Loving v. Virginia invalidated legislation prohibiting interracial marriage
and struck down over eighty years of precedent upholding such laws as constitutional. Yet almost no one derides Brown
or Loving as activist decisions worthy of scorn. Today we see them as paragons of judicial propriety, not just despite but
perhaps in part because they overruled precedent and overrode the then-popular will of the people.
That leaves the third notion of activism, which is essentially to hold up as "activist" a decision we disagree with on its
merits. If the Kimel and Roper decisions are not "activist" merely by virtue of overruling precedent and overriding
Planet Debate 2014
February PF Topic – Voting Rights Act
155
legislative acts, can they be deemed so because they were wrongly decided? No. One can criticize either or both of
those decisions as wrongly decided. But it adds nothing to punctuate heartfelt disagreement with the epithet of activism.
The "a" word gets used precisely because it carries a weighty negative connotation. And although the precise content of
that connotation is hazy, there is no doubt that its use is intended to convey not just disagreement but disdain and
contempt. Such language should be avoided, especially where the only basis for any contempt is mere disagreement on
the merits and nothing more.
As Pam Karlan has noted, this kind of use of the "a" word is reminiscent of Bertrand Russell's notion of "emotive
conjugation." n4 Emotive conjugation is a colorful illustration of our human tendency to describe our own behavior
more charitably than that of others. It says that verbs like "to persist" are "irregular," to be conjugated as follows: "I am
resolute. You are obstinate. And he is a pigheaded fool." The counteq)art for judicial activism purposes would go along
these lines: "I made a minor oversight. You committed a blatant error. And he is a judicial activist." n6 The addition of
the "a" word adds nothing but emotive conjugation. It therefore fails as a defensible notion of activism.
"[W]e ought to chide a judge's activism only where it exceeds that definition of judicial power, just as we ought to
applaud a judge's restraint only where it respects that definition."
Much of this criticism of the "a" word applies conversely to prevailing uses of the term "judicial restraint." Where
"judicial restraint" is used to blindly laud decisions deferring to past precedent or to the acts of the political branches of
government, the label is empty and unhelpful. Such decisions may or may not be laudable, but their propriety turns on
their merits. Blind deference to a plainly unconstitutional statute is hardly worthy of praise. That kind of "restraint," as
I've said, would be better derided as abdication.
Not all uses of the "r" word, however, are vacuous. Some notions of restraint express important restrictions on the use of
judicial power. A good example is the preference for decisions on narrow rather than broad grounds, and the related
principle of declining to reach constitutional grounds for decision where a statutory basis is available. That principle
appropriately channels judicial decisionmaking to grounds that can be overruled legislatively if the public finds a court's
decision abhorrent, and away from grounds that would become entrenched and hemmed in by the super-majoritarian
process of constitutional amendment. These principles of restraint are entirely sensible and appropriate.
At the same time, even these notions of restraint can be misused or perverted. The preference for the narrowest possible
ground for decision, for example, cannot be taken to its literal extreme. Ultimately, the narrowest ground for a decision
would be one that stated no legal principle at all but just rested amorphously on the conclusion that one side's position
prevailed in fight of all of the relevant facts to be evaluated on a case-by-case basis going forward. That would be
narrow. But it would not appropriately restrain judicial power. It would perversely expand it by assuring that the
outcome of future cases would be dictated not by a predictable principle of law but by the subjective impulse of the
judge assigned to the next case.