September 17, 2014

ABA panel examines the effects of Shelby County v. Holder

The 2013 Supreme Court ruling in Shelby County v. Holder undercut two key provisions of the Voting Rights Act of 1965.

The court struck down section 4 (b) as unconstitutional, ruling that the formula to determine which regions of the country were subject to preclearance of voting law changes conflicted with the principles of federalism and equal sovereignty of the state because of disparate treatment "based on 40-year-old facts having no logical relationship to the present day.”

By ruling the formula unconstitutional, it basically rendered Section 5 of the act, which called for preclearance, unenforceable unless Congress developed a new formula.

In her dissent, Justice Ruth Bader Ginsburg, said, "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."

During a panel discussion at the ABA Annual Meeting in Boston titled “Shelby County v. Holder: Its Impact and Implications,” the metaphor of the umbrella and the rainstorm surfaced again and again.

The consequences of the Shelby decision were felt shortly after it was issued. North Carolina and Texas both enacted more restrictive voting laws almost immediately after the decision.

Thomas A. Saenz, president and general counsel of the Mexican American Legal Defense and Educational Fund and member of the ABA Commission on Hispanic Legal Rights and Responsibilities, pointed out a situation in Texas. Because of the recent population growth in the state, Texas will receive four more Congressional seats. Because of redistricting, none of those districts will have a Latino majority, even though two-thirds of the population growth which got the seats is attributable to Latinos.

“In Texas, it was raining and is raining,” Saenz said.

Burt Rein, founding partner of Wiley Rein LLP, represented Shelby County before the Supreme Court. He explained the reasoning behind the decision, saying it boiled down to “was the record adequate to warrant extraordinary measures.”

Outnumbered ideologically on the panel four to one, Rein described himself as “the skunk at the garden party,” but vehemently defended the decision. He took exception to Ginsburg’s analogy, saying that there were two possible outcomes to staying dry under an umbrella: “It could be protecting you from the rain,” he said. “Or it could just not be raining.”

He claimed Chief Justice John Roberts, who wrote the majority opinion in the case, was simply saying, “Show me the rain.”

Saenz countered that if you were in Seattle, you could probably be sure that it was raining and if you were in the Sahara, you could probably be sure it wasn’t. He also said, “You could always stick your hand out from the umbrella and check.”

Estelle H. Rogers, the legislative director of Project Vote and chair of the Standing Committee on Governmental Affairs as well as a House of Delegates representative for the Section of Individual Rights and Responsibilities, outlined some of the consequences of Shelby. She pointed to a precinct in Athens, Ga., that cut the number of Election Day polling places and moved the remaining ones to police stations. It was these very types of changes that preclearance would identify early and put forward for review.

“Preclearance is the most efficient and cost-effective way to protect against unfair electoral processes,” Rogers said.

Saenz noted that the remedy that remains in the Voting Rights Act is Section 2, but that it is one of the more expensive and arduous remedies that requires lots of evidence and lots of witnesses. He also pointed out that the preclearance mechanism afforded a quick determination of voting rights violations that benefited the entire nation, not just areas subject to preclearance. If a law was questioned under Section 5, all jurisdictions would have a quick answer to its viability without going through litigation.

Julie A. Fernandes, a senior policy advisor at the Open Society Foundation, said the biggest impact on voting rights is at the local level, where information can be more difficult to get. Under preclearance, the Department of Justice and the minority community would get notice of all proposed voting rule changes. Without Section 5, she said, they have lost the ability to prevent discrimination before it happens. “After it has happened,” she asked, “what remedy can be gained? The bell cannot be unrung.”

Fernandes also lamented the loss of the deterrence effect. Jurisdictions that knew they were subject to preclearance would often not even try to enact a law that might be discriminatory if they believed the Department of Justice would object.

In the wake of Shelby, voting rights advocates are trying to get Congress to rethink a formula that can pass the constitutional test. Rein suggested that, “the world has to be looked at from both sides.” He noted that not all voting changes and redistricting are racially driven. Many times, it is more about partisan politics.

Saenz and Rogers stressed that the need to be creative was imperative in responding to the Shelby decision. There is a need to come up with a mechanism to identify the bad practices which tend to get repeated in different jurisdictions. “When going after vote-killers, you need to get the serial killers and the copycat killers,” Saenz said.

The panel was sponsored by the ABA Commission on Hispanic Legal Rights and Responsibilities and moderated by Luz Herrera, the Commission chair and the assistant dean for Clinical Education, Experiential Learning and Public Service at UCLA School of Law.