May 2012, Week 4


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Sun, 27 May 2012 22:12:58 -0400
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Race Bias In Voting: The Next Round
Lyle Denniston Reporter
May 22nd, 2012


Federal judges seem to agree that racial discrimination
among voters has not yet ended in America.  But they
don't agree on where - in what states - it is still a
problem.  And on that disagreement may hang the
constitutional fate of the most successful civil rights
law in U.S. history, the 1965 Voting Rights Act, when it
makes another trip to the Supreme Court, very likely
next Term.   An already skeptical Court may have lost
patience with Congress's unwillingness - or inability -
to update that law.

Three years ago, the Court sent an implied warning to
Congress: unless changes are made to overcome "serious
constitutional questions," the Act might not survive a
direct test.   Congress would not adopt, or could not
muster the votes for, any change, so the law now must
stand or fall as it was written when it was last
extended, in 2006.  A direct test appears to be at hand.
It is only a question of which test case gets to the
Justices first.

By the time the new Term opens October 1, one of three
cases testing the constitutionality of key parts of the
1965 Act is likely to be at the Court's door or near.
Two of the cases, with trials now set for July in three-
judge District Courts in Washington, D.C., involve new
state laws in South Carolina and Texas that require
voters to have a photo ID before they can cast their
ballots; both laws were blocked by the Justice
Department.  The third case - decided just last Friday
by the D.C. Circuit Court - involves a constitutional
test by Alabama's Shelby County, a prosperous county
that shares part of the city of Birmingham and that has
had some of its election law changes vetoed by the
Justice Department.

The Shelby County case is currently on hold, awaiting a
possible plea from the county for en banc review of the
case by the full D.C. Circuit Court.  The Circuit panel
divided 2-1 last Friday in upholding the 1965 Act.  If
en banc review is sought and granted, that could slow
that case's pace toward the Supreme Court.  Otherwise,
it seems likely to get to the Justices first.   Prompt
decisions by District Courts in the two photo ID cases
could speed up their path to the Justices, because they
would be appealed directly, bypassing the Circuit Court.

South Carolina, Texas and Alabama are all covered
directly by the 1965 law's Section 5, which requires a
covered state and all of its local governments to get
clearance in Washington for any change, however small,
that they want to make in their election laws or
procedures.  Those three states are among the nine to
which Section 5 applies statewide.  There are seven
other states in which only some local governments come
under Section 5, but the states themselves do not.
Across the nation, some 12,000 units of government have
come under Section 5.

While Section 5 has often been the center of controversy
over the constitutionality of the 1965 Act, because of
its unusual treatment of the covered governments,
another provision that also troubled the Supreme Court
and some lower court judges is a part of the law's
Section 4.  That part, in fact, is the one that
determines which state and local governments must obey
Section 5.

And, while the states that must obey Section 5 object
strenuously to being required - as 41 other states are
not - to ask permission from Washington to change their
election laws, the reason that they are singled out in
that way is found in Section 4.  And that is the section
that, challengers argue, is the most out of date.   If
it no longer represents the reality of bias in voting,
the challengers contend, then the burdens imposed by
Section 5 are unconstitutional intrusions upon the

Congress, when it first enacted the 1965 law, chose the
states with the worst histories of racial discrimination
in voting as the ones that would not be allowed to put
into effect any new election law without getting advance
clearance either from the Justice Department or from a
three-judge District Court in Washington.   But now, 47
years after the original law went into effect, are the
states with the worst records on bias in voting still
the same ones?  If not, is it unconstitutional to keep
the same coverage formula?

In fact, in last Friday's ruling by the D.C. Circuit
panel, the majority upheld both Section 5 and Section 4
by concluding that the most discrimination in voting
recently is still centered in the states singled out by
Congress, while the dissenting judge said that that is
no longer true.   And, significantly, the dissenter -
Senior Circuit Judge Stephen F. Williams - would have
struck down only Section 4's coverage formula, and not
Section 5's pre-clearance requirement.  (That, of
course, would be an option open to the Supreme Court,
too, if it did not want to sweep away the pre-clearance
requirement that, everyone agrees, has done much to
improve voting opportunities for minorities where
Section 5 applies.)

Paragraph (b) of Section 4 provides that a state will
come under Section 5 if it had a "test or device" that
discriminated racially in registering or voting, and if
fewer than half the people registered to vote or
actually turned out to vote.  Both of those factors,
though, were keyed to past elections.  For some of the
Section 5 states, the elections in which those factors
count actually occurred in 1964, and no Section 5 state
got covered based on an election held later than 1972.

Three years ago, when the Supreme Court questioned the
constitutionality of the 1965 law (in Northwest Austin
Utility District v. Holder), it said this: "The
statute's coverage formula is based on data that is now
more than 35 years old [apparently referring to 1972,
the current baseline year for triggering Section 5], and
there is considerable evidence that it fails to account
for current political conditions.  For example, the
racial gap in voter registration and turnout is lower in
the states originally covered by Section 5 than it is
nationwide."  It added that "the evil" to be dealt with
by the 1965 Act "may no longer be concentrated in the
jurisdictions singled out for pre-clearance."

The opinion then quoted an election law scholar who had
written that "the most that one can say in defense of
the [coverage] formula is that it is the best of the
politically feasible alternatives or that changing the
formula would.disrupt settled expectations." (Since that
ruling, of course, Congress has not changed the coverage

Although the Court at that time declined to rule on the
constitutional challenges to the 1965 Act, it did say,
explicitly, that "the Act imposes current burdens and
must be justified by current needs."

What that has meant, as lower courts have applied the
decision, is that they must evaluate what voting
conditions were like not in 1964 or 1972, but in the
period close to 2006, when Congress approved the most
recent extension of the 1965 Act - an extension that is
due to last until 2031.   If the states or local
governments now covered by Section 5, under the Section
4 formula, are still the worst in terms of voter
discrimination, then that would justify requiring the
Section 5 states and local units to continue getting
Washington clearance for election changes.  But if they
are not the worst, then continuing to impose the pre-
clearance burdens on those same jurisdictions could
indicate that the 1965 Act is no longer justified as an
exercise of Congress's constitutional authority.

That, in fact, was the point of disagreement among the
judges in last week's ruling in the D.C. Circuit, in the
case of Shelby County v. Holder (Circuit docket
11-5256).  It also is likely to be the potential source
of disagreement when a new case on the 1965 law reaches
the Supreme Court.

Circuit Judge David S. Tatel, in a 63-page opinion
joined by Circuit Judge Thomas B. Griffith, upheld
Sections 4 and 5 of the Act, applying the Supreme
Court's command that those provisions could now be
justified only if they satisfied "current needs."   The
majority said it had to rule on the constitutional
challenges, because Shelby County was not eligible for
an exemption ("bailout") from Section 5, and remained
covered because of the Section 4 formula.  In doing so,
the majority adopted a constitutional standard (so far
not embraced by the Supreme Court): the burdens imposed
on state and local governments by Section 5 must be
"congruent and proportional" to the problem - as it
exists today - of racial and ethnic bias in voting.

In essence, the Circuit Court majority accepted that
Section 4 would still apply Section 5 to the
jurisdictions whose history of discrimination had been
the worst, but that this was now justified by evidence
showing that discrimination even now remained
concentrated in those states and local government areas.

Relying on a 15,000-page record compiled by Congress
when it extended the law for 25 more years in 2006, the
majority focused on recent experience in the covered
jurisdictions, and cited such evidence as objections by
the U.S. attorney general to proposed election changes
by those jurisdictions, demands for more information by
the attorney general, lawsuits that succeeded under a
nationwide voting rights law (Section 2 of the 1965
law), assignments of federal overseers to watch
elections, Section 5 enforcement actions against those
jurisdictions, and the deterrent effect of Section 5 in
heading off more discriminatory voting rules.

Judge Tatel's opinion concluded: "Several categories of
evidence in the record support Congress's conclusion
that intentional racial discrimination in voting remains
so serious and widespread in covered jurisdictions that
Section 5 pre-clearance is still needed..[Shelby] County
has offered no basis for thinking that Congress's
judgment is either unreasonable or unsupported by
probative evidence..Section 5's work is not yet done."

Turning to whether the geographic targeting of covered
jurisdictions remained valid, the Circuit Court majority
relied heavily on an academic study that showed that
lawsuits under Section 2 - the nationwide ban on bias in
voting - had overwhelmingly targeted the states and
local jurisdictions that must abide by Section 5 pre-
clearance.  That study analyzed successful Section 2
lawsuits both in Section 5 state and local government
units, and those outside Section 5's demands, and found
at least a 10 percent greater proportion of court
victories for challengers in the former.

On the Section 4 coverage formula itself, the majority
concluded that Congress had not chosen the past voting
patterns for their own sake, but as "accurate proxies
for pernicious racial discrimination in voting."  What
is critical, it added, is not whether the formula relies
on old data or techniques, but whether the factors still
serve to identity the places where bias remains
concentrated.  It found that they did just that, even
though it conceded that "the coverage formula's fit is
not perfect."

(Because the Shelby County challenge was a "facial" one
- that is, a challenge to the constitutionality of
Sections 4 and 5 as written, not as applied to a
specific set of facts - the ruling last Friday would be
binding in the three-judge District Court cases on the
voter ID issue only if they, too, involved facial
challenges to the 1965 law.   Both of those cases raise
the constitutional challenge only as a back-up argument
if the District Court refused to pre-clear those ID
requirements, suggesting that they are as-applied
challenges that would not be foreclosed by the Circuit
Court ruling against Shelby County.)

Senior Judge Williams, in his dissent last Friday,
argued that the validity of the extra burdens the 1965
law puts on covered jurisdictions - burdens that he said
were made even greater in the enactment of the 2006
extension of the Act - should be based not only on
recent data involving those jurisdictions, but on
comparisons to data in areas not covered by Section 5.
There must be "a distinct gap" between those two
categories in order to make the coverage formula and
Section 5 valid, he said, and he did not find such a

Putting his focus on the Section 4 coverage formula,
which he found to be unconstitutional, Williams analyzed
comparative data and drew from it a conclusion that the
formula was no longer justified.  On voter registration
and turnout, Williams found that "most of the worst
offenders" on that score were states not covered by
Section 4.   On the election of black candidates to
public office, the dissenter found far more such
candidates chosen in covered areas.  On the data about
successful Section 2 lawsuits, Williams concluded that
those figures break down on closer examination; he found
that the five worst areas as measured by this statistic
have worse records than eight of those that are covered.

On one specific measure, the sending of federal
overseers to watch elections, Williams found that that
figure might seem to work in favor of the formula, since
many more were sent to covered states, but said that the
data was skewed because the practice in the federal
government is not to send them to uncovered

Overall, the dissenting judge said that the comparative
data showed that the coverage formula "is a remarkably
bad fit with Congress's concerns.  Given the drastic
remedy imposed on covered jurisdictions by Section 5., I
do not believe that such equivocal evidence can sustain
the scheme..Despite a congressional record of over
15,000 pages and 22 hearings, there is little to suggest
that Section 4(b)'s coverage formula continues to
capture jurisdictions with especially high levels of
voter discrimination..[The] coverage formula appears to
be as obsolete in practice as one would expect, in a
dynamic society, for markers 34-to-59 years old."

While the dissenter said he would not reach the issue of
the constitutionality of Section 5, he lamented that
that provision tends to encourage "racial
gerrymandering" by states and local governments by
seeking to ensure that minority voters can elect the
representatives they prefer, and that results in a
"troubling tension" with the colorblind ideals embodied
in the Constitution's Fifteenth Amendment, outlawing
race bias in voting.

"Preventing intentional discrimination against a
minority," the judge said in closing, "is radically
different from actively encouraging racial
gerrymandering in favor of the minority.as Section 5

The dueling opinions in the Shelby County ruling may
well be indicators of how the Justices on the Supreme
Court might end up splitting when they take a new look
at the 1965 law.


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