Originally published in the New York Law Journal.
Retired Supreme Court Justice Sandra Day O'Connor recently said that she has second thoughts about Bush v. Gore. Whatever feelings she now expresses, the U.S. Supreme Court's involvement at that time obviously had implications for election law, and, of course, the direction of our nation. Since then, the court has ruled on a variety of important voting rights cases,1 and in a matter of weeks the court is expected to hand down decisions in two additional ones, also having far-reaching consequences.
One involves an Alabama county that opposes federal oversight of its election procedures, and the other concerns the scope of Arizona's law requiring voters to submit documentary proof of citizenship when registering to vote. Both cases, Shelby County, Ala. v. Holder2 and Arizona v. Inter-Tribal Council of Arizona,3 consider the authority of Congress to protect voters against state and local ordinances that impinge upon fundamental voting rights. (Co-author Myrna Pérez's organization, the Brennan Center, submitted amicus briefs in the Shelby County and Arizona cases).
'Shelby County, Ala. v. Holder'
Shelby County is a largely white suburb of Birmingham, Ala., that has challenged the constitutionality of Section 5 of the Voting Rights Act (VRA).4 Originally proposed by President Lyndon B, Johnson and enacted by Congress in 1965, the VRA was passed in response to discriminatory practices impacting voters. While the VRA has several provisions that cover the entire United States, such as a ban on some overt discriminatory practices, Section 5 covers only certain states and localities, including Alabama.
When seeking any change in its election laws, covered jurisdictions must obtain advance approval by the Department of Justice or a three-judge federal court. This "preclearance" requirement is designed to ensure that election changes do not discriminate against minority voters, whether intentional or otherwise. When the law was first enacted, only several southern states were designated for coverage by Section 5. Over the years, Congress amended the bill to add jurisdictions, including the Bronx, Manhattan and Brooklyn, and to extend to additional ethnic, racial and language communities. When last reauthorized by Congress in 2006, 16 states were covered in whole or in part by Section 5.5
In 2006, the City of Calera, which lies within Shelby County, and is thus covered by Section 5 of the VRA, enacted a redistricting plan that reduced the city's lone African-American council member's district from 70.9 percent black registered voters to 29.5 percent. Contrary to law, the city failed to seek review of this change from the Justice Department. The council member lost his seat, but the Justice Department ordered a new districting plan, and he regained it under the approved plan.
Soon after, Shelby County challenged its inclusion as a covered jurisdiction. Simply put, Shelby claimed that Section 5, as reauthorized by Congress in 2006, is unconstitutional because Congress used outdated criteria to determine which jurisdictions would be subject to the preclearance requirements. As such, having its election changes reviewed for discrimination by the Justice Department or the courts was a violation of federalism and the equal protection clause of the U.S. Constitution. The United States urged the court to reject Shelby County's claim on the ground that Congress voted overwhelmingly to reauthorize the VRA for the covered jurisdictions based upon a vast record, including 15,000 pages of documents and testimony from more than 90 witnesses during more than 20 hearings.
Shelby County lost its challenge in both the U.S. District Court and the U.S. Court of Appeals. The Supreme Court granted certiorari, and oral argument was heard on Feb. 27, 2013.
Pursuant to the National Voter Registration Act (NVRA),6 passed by Congress in 1993, a designated federal agency, now the U.S. Election Assistance Commission (EAC), was to create simple and uniform registration forms that "[e]ach state must accept and use…for the registration of voters in elections for federal office." Although the EAC did create and make available these forms, the State of Arizona enacted a law requiring residents to submit documentary proof of citizenship when registering to vote—a condition neither contemplated nor necessary to complete the federal voter registration form. As a result, the state rejected some 30,000 applications that used the federal voter registration form that did not include any document establishing citizenship.
The Inter-Tribal Council of Arizona (ITCA), a non-profit corporation representing its 20 member tribes and a broad coalition of Arizonans—including individuals and membership organizations—commenced an action in federal court seeking a mandatory injunction to compel Arizona to accept these registrations. ITCA urged the court to nullify Arizona's rejection of the federal forms on the ground that NVRA preempted its more restrictive law.
The ITCA ultimately succeeded in the U.S. Court of Appeals after a checkered series of decisions and remands. The Supreme Court granted certiorari, and oral argument was heard on March 18, 2013.
Although the particular issues in each case are different, both relate to a state's or locality's challenge to federal authority over elections—in one case, a county wishing to be relieved of federal oversight over its voting laws; and in the other, a state wishing to ignore federally protected access to the registration rolls.
Evaluating the role of the federal government in this context starts with a fairly simple provision in the U.S. Constitution. In Article I, Sec. 4, the constitution states that "The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof;…" This straightforward pronouncement reflects the Founders' desire that ours would be a nation of states that would regulate all of its elections—even for those of Congress. This Election Clause, however, goes on to provide that "Congress may at any time make or alter such Regulations…." Thus, the Founders gave the new federal government authority to override state laws and enact election laws that would apply equally to all the states in federal elections.7
The Elections Clause, however, permits Congress to override state laws only as they relate to federal elections. After the Civil War, though, the 15th Amendment to the Constitution was ratified to expand this power over all elections in matters relating to race. Specifically, the amendment gives Congress authority to regulate federal, state and local elections to ensure that they do not adversely impact a person's right to vote on account of race.8
The amendment was necessary because a series of federal laws protecting voting rights for African-Americans had been routinely ignored or undermined by several states—despite the fact that Congress had conditioned readmission of former Confederate states into the Union upon permanently amending their constitutions to allow voting by all male citizens, irrespective of race or color. Nevertheless, violence, intimidation and obstructionist practices subverted these rights—so much so that the period leading up to the 1868 election saw one of the biggest waves of racial violence in American history, including the assassination of several black congressmen in Arkansas and South Carolina.
The 15th Amendment thus gave Congress authority to enforce guarantees against racial discrimination in voting, with broad powers to achieve that goal. Recalcitrant political forces, however, stymied Congress over the next century, and it was not until the passage of the Voting Rights Act in 1965 that full-throated legislation sought to fulfill the promise of the 15th Amendment. Subsequent to VRA's passage, overtly racist laws have been eliminated.
Yet, 50 years later, the VRA, and particularly Section 5, is still relevant to the continuing struggle over voting rights. In 2011 and 2012, 19 states passed more than two dozen measures that added a variety of hurdles to the act of voting. Many were successfully challenged in part on the ground that they violated the VRA. In one significant instance, the Department of Justice blocked a Texas strict voter ID law that ran afoul of Section 5's proscription against racial retrogression.9 In another, it successfully challenged Texas' redistricting plan after finding intentional discrimination on the part of its Legislature.10
Although voters are, of course, able to challenge restrictive voting laws on state or federal constitutional grounds, or under Section 2 of the VRA, a provision that is nationwide in scope, these efforts are usually costly and drawn-out, and are mainly brought only after laws are passed. Section 5 of the VRA protects voters from discriminatory election procedures without having to go to court or wait for passage of offending statutes—the Department of Justice acts on the voters' behalf. In addition to rejecting improper laws or procedures, the authority of the Justice Department in these matters acts as a powerful disincentive to states or localities contemplating discriminatory election procedures.
The NVRA, focused as it is on facilitating voting registration, is also an important palliative against a confusing and complex patchwork of state laws. In addition to simplifying registration forms and mandating their use throughout the country, the law, colloquially known as "Motor Voter," requires designated state agencies to offer registration services. Its passage was meant to prevent states or localities from creating obstacles to registration beyond the basic requirements permitted by Congress.
The current challenges to VRA's Section 5 and the NVRA thus have broad ramifications beyond election procedures in one county in Alabama or about registration forms in Arizona. Indeed, New Yorkers have a stake in the outcomes in Shelby County and Arizona. As indicated above, we have three counties covered by Section 5 because of past voting discrimination and continuing issues relating to language minorities.11 In fact, New York filed an amicus brief in Shelby County along with California, Mississippi and North Carolina—other covered jurisdictions—defending Section 5's preclearance requirements as "nominal and non-obtrusive" and arguing that Section 5 has played a significant role in reducing racial discrimination and inequities in voting.12 We have, furthermore, ongoing obstacles to getting voters on the rolls that require the federal protections of NVRA, such as applications not being processed in time for an election or being rejected for frivolous reasons.
The VRA and NVRA guard basic and important protections against infringements on the right to vote. Their continuing efficacy will be defined by the Supreme Court's rulings in Shelby and Arizona.
Jerry H. Goldfeder is special counsel at Stroock & Stroock & Lavan and is the author of "Goldfeder's Modern Election Law." Myrna Pérez is deputy director of the Democracy Program at the Brennan Center for Justice at NYU School of Law. The Brennan Center submitted amicus briefs in the 'Shelby County' and 'Arizona' cases discussed in this article.
1. See, e.g., Citizens United v. Federal Election Commission, 558 U.S. 310 (2010); Crawford v. Marion County Election Board, 553 U.S. 181 (2008); League of United Latin American Citizens v. Perry, 548 U.S. 399 (2006); Vieth v. Jubelirer, 541 U.S. 267 (2004); Georgia v. Ashcroft, 539 U.S. 461 (2003); McConnell v. Federal Election Commission, 540 U.S. 93 (2003).
2. Shelby County, Ala. v. Holder, 133 S. Ct. 594 (2012).
3. Arizona v. Inter-Tribal Council of Arizona, 133 S. Ct. 1310 (2013).
4. Voting Rights Act, Pub. L. No. 89-110, 79 Stat. 438 (1965) (codified at U.S.C. §§1973 to 1973aa-6).
5. To see which states and localities are currently covered by Section 5 of the VRA, go to http://www.justice.gov/crt/about/vot/sec_5/covered.php (last visited May 9, 2013).
6. National Voter Registration Act, Pub. L. 103-31, 107 Stat. 77 (1993) (codified at 42 U.S.C. §1973gg).
7. See e.g., Tillman Act, Ch. 420, 34 Stat. 864 (1907) (codified as amended at 2 U.S.C. §441b(a) (2006)) (banned corporations from contributing to candidates); Labor Management Relations (Taft-Hartley) Act, 61 Stat. 136 (1947) (codified at 29 U.S.C. §401-531) (banned unions from contributing to candidates); Voting Rights Act, Pub. L. No. 89-110, 79 Stat. 438 (1965) (codified at U.S.C. §§1973 to 1973aa-6) (generally banned discrimination in voting); Federal Election Campaign Act, Pub. L. No. 92-225, 86 Stat. 3 (1972) (codified at 2 U.S.C. §431 et seq.) (limited contributions to candidates; established Federal Election Commission to regulate all federal elections); National Voter Registration Act, Pub. L. 103-31, 107 Stat. 77 (1993) (codified at 42 U.S.C. §1973gg) (requires state agencies to provide voter registration services); Help America Vote Act, Pub. L. No. 1070252, 116 Stat. 1666 (2002) (codified at 42 U.S.C. 15301 et seq.) (requires modern election machines and provisional ballots); Military and Overseas Voters Empowerment Act, Pub. L. 111-84, 123 Stat. 2190 (2009) (codified at 42 U.S.C. §1973ff) (gives military and civilians overseas more time to vote).
8. U.S. Const., amend. XV.
9. Letter from Thomas E. Perez, Assistant Attorney General, to C. Havird Jones Jr., Assistant Deputy Attorney General (Dec. 23, 2011) http://www.justice.gov/crt/about/vot/sec_5/ltr/l_122311.php. But see South Carolina v. United States of America and Eric Holder Jr., U.S. District Court, District of Columbia, 2012 WL 4814094, D.D.C., Oct. 10, 2012.
10. Texas v. United States, 887 F.Supp.2d 133 (2012).
11. Daniel Brook, "New York Should Hate the Voting Rights Act," Slate (Feb. 21, 2013) http://www.slate.com/articles/news_and_politics/jurisprudence/2013/02/voting_rights_supreme_court_case_why_is_new_york_defending_the_voting_rights.html
12. Brief for the States of New York, California, Mississippi, and North Carolina as Amici Curiae Supporting Respondents, Shelby County, Alabama v. Holder, No 12-96, 2013 WL 432966 (U.S. Feb. 1, 2013) (Appellate Brief).