The Aftermath of Shelby County v. Holder: Will Voting Rights Be Diminished?

Illustration: Jeff Hopkins.

Illustration: Jeff Hopkins.

The United States Supreme Court’s June 25, 2013 decision, Shelby County v. Holder, struck down Section 4 of the 1965 Voting Rights Act, eliminating a “preclearance” coverage formula that had subjected numerous jurisdictions with checkered voting rights histories to the U.S. Department of Justice’s oversight.  Although the decision allows Congress to create a new coverage formula, in today’s political climate that appears unlikely.   While the preclearance system was often associated with deep Southern states like Alabama and Mississippi, in 1971 three New York City counties – Bronx, Kings and New York – were added as covered jurisdictions, and since then the DOJ has blocked New York voting laws on several occasions to protect the rights of minority voters.  This article examines Shelby County v. Holder, its consequences for minority voting rights across the country, particularly in New York, and possible local remedies in the event of Congressional inaction.

Before 1965, minority voters, particularly African-Americans in the south, faced tremendous obstacles registering and exercising the right to vote.  The Voting Rights Act passed following an intense period of activism led by Dr. Martin Luther King, Jr. and an aggressive lobbying effort from President Lyndon Johnson in the wake of President John F Kennedy’s assassination. The VRA did more to further ballot access to minorities than any legislation since the Civil War.   The statute was extended in 1970, 1975, 1982, and 2006.  In 2006, the Senate voted unanimously, 98-0, in its favor, while the House of Representatives supported its extension 390-33.

The Supreme Court’s 5-4 decision in Shelby County v. Holder boiled down to a fundamental disagreement about whether preclearance coverage was still needed  in the jurisdictions subject to Section 4(b) after decades of progress eradicating the most overt forms of racial discrimination that led to the VRA’s passage, such as literary tests and poll taxes. Shelby County, Alabama, located in a state in which preclearance was required, challenged Sections 4(b) and 5 of the VRA in the Federal District Court of Washington, D.C.  At the time of the lawsuit, the jurisdictions covered under Section 4(b) included nine states: Alabama, Alaska, Arizona, Georgia, Louisiana, Mississippi, South Carolina, Texas and Virginia- and jurisdictions in California, Florida, Michigan, New York, North Carolina and South Dakota.   The District Court upheld the VRA, finding ample evidence for its need in Congress’ 2006 reauthorization of the statute, and the U.S. Court of Appeals for the D.C. Circuit affirmed.

The Supreme Court’s majority opinion, authored by Chief Justice Roberts, asked why the preclearance list had remained unchanged for decades, relying on data from the early 1970s.  The Court struck down Section 4 as unconstitutional, finding that the coverage formula was dated and violated state sovereignty, while leaving Section 5’s preclearance enforcement requirement intact.  By invalidating the preclearance coverage formula, however, the Court critically weakened Section 5, as Congress is unlikely to muster the political will to establish a new coverage formula.

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.

Justice Ginsburg’s compelling dissent unpacks the majority’s misleading appraisal of the VRA and questionable legal analysis, while highlighting the discrimination minority voters still face today.  First, the majority had relied heavily on dicta from Northwest Austin Munic. Util. No. One v.  Holder, a decision that, consistent with precedent, had taken no position on the constitutionality of the VRA.  Second, the majority’s rationale that the VRA  had largely run its course was mistaken on two factual grounds.  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 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).

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.

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 African-American 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 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 “bail-out” 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.

In addition, New York City could reorganize its Board of Elections as a nonpartisan monitoring group, rather than using the current bi-partisan format.  Though the appointment process would still involve the City Council and the Mayor, the nonpartisan format would better protect the rights of political independents and third parties.

The right to vote is seen as a cornerstone of our constitutional system and democratic form of government.  Yet that fundamental right is now being tested as a result of the Shelby County decision.  We no longer have the strength of the VRA to protect this all-important right.  The United States, including New York State and New York City, must now step up to guarantee that the right to vote continues to be respected and protected.  Only time will tell whether that right remains a reality or recedes back to the pre-VRA period when all votes were not treated as equal.

Messrs. Siegel and Marton are attorneys associated with the law firm of Siegel Teitelbaum & Evans, LLP.

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