This past June, the Supreme Court struck down a key provision in “arguably one of the most successful acts passed by Congress in any area,” said Richard Reuben, the James Lewis Parks Professor of Law at the University of Missouri School of Law, at a recent event on Shelby County v. Holder hosted by the ACS University of Missouri School of Law Student Chapter.
The affected provision of the Voting Rights Act, Section 4(b), contains the coverage formula for determining which jurisdictions are subject to a preclearance requirement before they can amend their voting laws. Section 5 details the logistics of the requirement, which was designed to target states and local governments with a history of discriminatory practices. By declaring Section 4(b) unconstitutional under the claim that the formula was based on obsolete data, the Court essentially nullified Section 5. States that were once required to have a federal court or the Department of Justice sign off on changes to voter law may now proceed unchecked.
Appeals to Section 2 result from policies or practices in voting areas with a discriminatory purpose or result. Sadly, explained Ms. Fernandes, these after-the-fact remedies often take a long time, are very expensive and result in complicated litigation. Violations of the Fifteenth Amendment may also be remedied by preclearance requirements set forth in Section 3(c). Yet intentional discrimination must be a predicate in these cases, she said, and courts do not often find said discrimination.
In a post-Shelby world, Ms. Fernandes identified the need for a new, data-driven preclearance formula; the expansion of federal courts’ ability to institute preclearance requirements; and public notice and disclosure of voting law changes.
TheWashington Post recently published a "Letter to the Editor" from ACS President Caroline Fredrickson, which touched on the pernicious influence of campaign contributions on state courts.
In response to a Post article citing efforts by the U.S. Chamber of Commerce to push its agenda through various state courts (perhaps having realized federal courts have already been conquered), Fredrickson cited ACS’s 2013 report, Justice at Risk, which provides an empirical analysis of campaign contributions and their impact state judicial decisions. As Fredrickson noted, the data shows that “the more campaign contributions from business interests that justices receive, the more likely they are to side with business litigants.”
Since its release in June, Justice at Risk has been routinely cited by media outlets across the nation, including: The Atlantic, Mother Jones, The Des Moines Register, The Miami Herald and many others. As former Montana Supreme Court Justice James C. Nelson phrased it in the pages of The Missoulian, Justice at Risk is an “objective, non-partisan report . . . [that] provides critical data on the effect of campaign expenditures on judicial behavior from 2010-2012.”
Several years before the U.S. Supreme Court greatly hobbled the landmark Voting Rights Act in Shelby County v. Holder, a federal appeals court circuit provided a significant boost to ignoble state efforts to suppress the votes of minorities, students, the poor and the elderly. In Crawford v. Marion County Election Board, the U.S. Court of Appeals for the Seventh Circuit turned away a constitutional challenge and upheld a stringent voter ID law in Indiana.
Recently Seventh Circuit Judge Richard Posner, who authored the Court’s opinion that was subsequently upheld the by the U.S. Supreme Court, said he erred. Posner (pictured), who now says laws like Indiana’s are “widely regarded” as tools to suppress the vote, suggested that his error in Crawford was partly due to poor presentation of the evidence that the law would disproportionately suppress groups of voters. (In this piece for ACSblog, longtime Supreme Court litigator Paul M. Smith, who argued Crawford before the high court, explains why Posner had plenty of compelling information to vote the other way and invalidate the Indiana law.)
Ifill writes, “Without a doubt, lawyers advancing claims of discrimination should have to prove their case. But judges also should be aware of their own lack of experience and knowledge.”
For example, Ifill cites a 2010 opinion from the U.S. Court of Appeals for the Eleventh Circuit that rejected a racial discrimination lawsuit, claiming there was not sufficient evidence that a white supervisor calling a black worker “boy” amounted to racism. Ifill then turned to the more recent Shelby County opinion, where the high court’s conservative justices banded together to decided “that they were better positioned than Congress to determine whether racial discrimination in voting still justifies the coverage regime that existed under” the Voting Rights Act. “Not even 15,000 pages of evidence and testimony could convince the court that Congress got it right.”
The problem here, Ifill explains is that we all imagine we are experts on what accounts for discrimination. The truth is we are not, including judges. “We are too often,” Ifill writes “unwilling or unable to defer to the substantiated experiences of those who stand directly vulnerable to discrimination in voting, housing, employment and countless other arenas.”
And many voters, primarily minorities, continue to suffer as state after state creates new and onerous hurdles to voting. Posner may now be able to acknowledge what many others do – too many state voter ID laws are all about suppressing the vote. But as Ifill explains, many judges are just ill-equipped to understand the scope and depth of discrimination despite the evidence provided them.
by Gerald Torres, Marc and Beth Goldberg Distinguished Visiting Professor of Law, Cornell Law School; Bryant Smith Chair, University of Texas Law School
A recent Huffington Post article by Alex Palombo accuses Texas of discriminating against women in the exercise of the franchise because it has imposed new rules for voting which require all Texans to…
“…show a photo ID with their up-to-date legal name. It sounds like such a small thing, but according to the Brennan Center for Justice, only 66 percent of voting age women have ready access to a photo document that will attest to proof of citizenship. This is largely because young women have not updated their documents with their married names, a circumstance that doesn’t affect male votes in any significant way. Suddenly 34 percent of women voters are scrambling for an acceptable ID while 99 percent of men are home free.”
The law also imposes requirements of original documents for name change and a minimum fee of $20 to obtain acceptable copies of the documents. These requirements, in conjunction with registration deadlines, will leave many women unable to vote. Palombo views this as an assault on the 19th Amendment and women’s right to vote, suggesting that “if the Tea Party gets their way, the only people left to vote will be wealthy white men.”
Is this column another example of fear mongering from the Left? Rather than a regressive return to the days when women had no independent political existence, let alone a right to vote, Texas’ new laws surely represent the strongest possible statement supporting women’s independent personhood. Governor Perry and his legislative confederates cannot have intended to keep women from voting or to impose new, oppressive barriers to women’s participation in the political process, right? That would be illegal.
by Paul M. Smith, Partner, Jenner & Block. Mr. Smith is a longtime Supreme Court practitioner and a member of the ACS Board.
As the lawyer who argued the constitutional challenge to the Indiana Voter ID law in the Supreme Court in 2008, I was both fascinated and pleased to hear that Judge Richard Posner – the author of the Seventh Circuit majority opinionaffirmed by the Supreme Court in Crawford v. Marion County Elections Board – has now publicly stated that he was wrong. It is refreshing, if not unprecedented, for a jurist to admit error on such a major case.
I was a little less pleased to see that he attempted to excuse his error by blaming the parties for not providing sufficient information to the court. As he put it in an interview quoted in the New York Times, “We weren’t given the information that would enable that balance to be struck between preventing fraud and protecting voters’ rights.” Really? The information provided was enough for the late Judge Terence Evans, dissenting from Judge Posner’s decision, to say quite accurately: “Let’s not beat around the bush: The Indiana voter photo ID law is a not-too-thinly-veiled attempt to discourage election-day turnout by folks believed to skew Democratic.”
That insight about the purpose of the law was supported by this information, all of which was provided to Judge Posner and the Seventh Circuit:
There had never been a single known incident of in-person voter impersonation fraud in the history of Indiana and there have been precious few nationally – yet the Indiana law targeted only in-person voting.
The law was passed immediately after Republicans took complete control of the legislature and governorship of the State of Indiana.
Every Republican legislator supported the law, while every Democratic legislator opposed it.
But what about the effects of the law? Well, Indiana Secretary of State Todd Rokita, the primary supporter of the bill, himself stated that there are certain “groups of voters for whom compliance with [the Voter ID law] may be difficult” because they are “registered voters who do not possess photo identification; who may have difficulty understanding what the new law requires of them; or who do not have the means necessary obtain photo identification.” As examples he mentioned “elderly voters, indigent voters, voters with disabilities, first-time voters, [and] re-enfranchised ex-felons.” Moreover, the district court had conservatively estimated that there were 43,000 voting-age Indianans without a state-issued driver’s license or identification card, and that nearly three-quarters of them were in Marion County, which includes Indianapolis. In other words, the persons most likely to be affected were poor and minority residents in the state’s largest city, who tended to vote Democratic and lived in a city that was trending Democratic.