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U.S. Supreme Court Examines Voting Rights in Two Cases

The Supreme Court is expected to hand down decisions on two far-reaching cases involving the Voting Rights Act and National Voter Registration Act. These key laws guard basic and important protections against infringements on the right to vote.

Published: May 15, 2013

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.

Arizona Case

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.

Signi­fic­ance

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.

Endnotes:

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).