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Prior to the 2012 federal election, Florida used a highly inaccurate matching program to conduct a systematic purge of alleged non-citizen voters from the voter registration database; the purged voters were disproportionately from minority communities. The process was halted pre-Election 2012, but restarted at the end of last year.
In June 2013, the Supreme Court issued its decision in Shelby County v. Holder, ruling that Section 4(b) of the Voting Rights Act was unconstitutional. The decision struck down the coverage formula that required states and municipalities— identified with a history of discrimination—to obtain approval from the federal government before they could make changes to their voting laws and practices. This federal overview known as the Section 5 preclearance requirement, while not considered unconstitutional, was made inoperative by the Shelby County opinion. .
“Unfortunately, the Supreme Court’s decision in Shelby Co v. Holder is a significant set-back in our work to ensure that voting is free from racial discrimination,” says Julie A. Fernandes, senior policy advisor at the Open Society Foundations and the Open Society Policy Center. “By invalidating the mechanism for determining which places around the country need an additional level of review for their proposed voting changes, the Court has made it harder to stop the implementation of potentially racially discriminatory changes.”
A Panel of legal experts, including Fernandes, will explore how voting has changed since last year’s decision at the ABA Annual Meeting in Boston. “Shelby v. Holder: Its Impact and Implications,” sponsored by the ABA Commission on Hispanic Legal Rights & Responsibilities, will take place from 10:30 a.m. to noon on Saturday, Aug. 9, at the Hynes Convention Center.
In the absence of a preclearance system and without revisions to the Voting Rights Act, experts agree that there are fewer legal resources for challenging discriminatory voting practices and laws.
In an amicus brief filed in Shelby County v. Holder, the American Bar Association said that "litigation alone" under the act's Section 2 "would not be an adequate and sufficient remedy for voting discrimination" in covered jurisdictions with a past history of racial discrimination in voting. The brief stated that the "time, cost and complexity of prosecuting a Section 2 case cause significant on-going harms that could be minimized by Section 5 preclearance but often cannot be remedied after-the-fact."
"Voting rights litigation under Section 2, as many ABA members know from front line experience, is extremely complex and costly," the brief observed. "During the several years it regularly takes to litigate a Section 2 case, officials who were elected under an improper election regime continue to hold office, implement policies, and make a wide variety of decisions that remain in effect, often long after the election process that brought them to power is found to be discriminatory."
However, according to Fernandes, the Shelby decision also presents an opportunity to think about what a modern and effective Voting Rights Act should look like. Earlier this year, Rep. James Sensenbrenner, R-WI, Rep. John Conyers, D-MI, and Sen. Pat Leahy, D-VT, introduced the bi-partisan Voting Rights Amendment Act to respond to the Supreme Court’s decision in Shelby, which proposes strengthening the Voting Rights Act in ways that are consistent with the Supreme Court’s constitutional framework and addresses voting discrimination in the 21st century.
“Our country is becoming more diverse every day. With that growing diversity comes a continued obligation to ensure that our election system is free from racial discrimination,” says Fernandes. “What we need is a modern, flexible, forward-looking Voting Rights Act that will meet the Supreme Court’s constitutional test, while effectively ensuring racial equality at the ballot box.”
This program will also review discriminatory voting practices, new legislative efforts to restore invalidated provisions of the Voting Rights Act and the demographic trends that will influence the future of voting.
About the Panelists
Bert W. Rein recognized leading antitrust and commercial litigator. He represented Shelby County, Alabama in its challenge to the constitutionality of the renewal of the preclearance provisions of the Voting Rights Act that was argued before the Supreme Court of the United States in 2013.
Thomas A. Saenz is president and general counsel of the Mexican American Legal Defense and Educational Fund in Los Angeles. Saenz previously practiced civil rights litigation at MALDEF for 12 years. He was MALDEF’s lead counsel in the successful challenge to California’s anti-immigrant Proposition 187, and he led numerous civil rights cases in the areas of immigrants’ rights, education, employment, and voting rights.
Estelle H. Rogers is the Legislative Director of Project Vote, a national nonpartisan organization promoting civic engagement, improved election administration, and voting rights. Prior to this, she was a legal and public policy consultant, specializing in civil rights and civil liberties. She was formerly a senior attorney in the Voter Protection Program at Advancement Project, a racial justice advocacy organization, and served as special counsel to the Voter Protection Project of America’s Families United, an initiative dedicated to ensuring maximum civic participation in the 2004 federal election.
Julie A. Fernandes works to influence public policy in support of the protection of civil and human rights in the U.S., with a focus in the areas of voting rights, election reform, and racial justice. Fernandes previously served as Deputy Assistant Attorney General for Civil Rights at the U.S. Department of Justice, where she was responsible for oversight of the Division’s work in the areas of voting rights, federal compliance with Title VI of the Civil Rights Act of 1964, and the domestic application of international human rights laws.