Editorials: Voting Rights Act Deserves More Judicial Deference than Indiana ID | Spencer Overton/ACS

Many who assert the U.S. Supreme Court in Shelby County v. Holder should uphold the preclearance and coverage provisions of Section 5 of the Voting Rights Act disagree with the Court’s 2008 decision in Crawford v. Marion County Bd. of Elections that upheld Indiana’s photo identification requirement.  On the other hand, those who oppose Section 5 cite Crawford as a reason Section 5 is allegedly unconstitutional.  An honest reading of Crawford, however, provides five reasons the Court should now defer to Congress’s determinations regarding the coverage and preclearance provisions of Section 5. In Crawford, the U.S. Supreme Court ruled that the Indiana ID requirement did not unconstitutionally burden the right to vote (the Court did not address whether ID discriminated on the basis of race).  The plaintiff in Shelby County seeks to undermine Congress’s authority under the 14th and 15th Amendments by making the novel claim that the coverage provision violates a “principle of state equality” — but the U.S. Constitution contains no such requirement.

Editorials: Why some Italians should vote both for Berlusconi and Bersani coalition | Al Jazeera

As you watch the Italian election results come in this weekend, ponder the following seemingly contradictory statement: for some Italians in some regions of the country, the vote that is most likely to lead to the policies they most prefer being enacted by the new government would involve voting for their preferred party in the elections to the lower house of the Italian Parliament (the Chamber of Deputies) but for their preferred party’s worst enemy – the party of Silvio Berlusconi – in the upper house (Senate) elections.  How could this be?  The answer lies in what political scientists call “strategic voting”. To understand strategic voting, it is first necessary to understand “sincere voting”. A sincere voter ranks the parties or candidates, and then casts his vote for his top ranked party: the vote is a “sincere” reflection of the voter’s top preference. A strategic voter, however, asks some sort of additional question before deciding whether or not to cast his vote for his top choice.  Usually this question is “will my vote be wasted”? The easiest way to waste a vote is to cast it for a candidate who has no chance of winning: think a vote cast for Ralph Nader, for example, in the 2000 US Presidential elections. Occasionally, a vote can also be wasted by casting it for a party that has already won an election, but needs a coalition partner to get above a minimum threshold in order to govern. Strategic voting then might dictate voting not for your preferred party, but for its needed coalition partner; such behaviour is said to explain the unexpectedly strong performance of the Free Democrats in the recent German regional election in Lower Saxony.  But there is another type of strategic voting, trying to influence policy outcomes. Social scientists Howard Rosenthal and Alberto Alesina have demonstrated how it can be perfectly rational for Americans to vote for one party in a presidential election and another party in legislative elections if one’s policy preferences are located between the two parties. The current Italian elections, however, take this form of strategic voting to a whole new level, as they provide a set of incentives for voters to vote for and against the same party in one set of legislative elections to pick a single government. Here’s how.

Editorials: The Supreme Court’s Threat to the Voting Rights Act: A History | Andrew Cohen/The Atlantic

At 10 a.m. next Wednesday, the justices of the United States Supreme Court will hear oral argument in a case styled Shelby County v. Holder, one of the most anticipated of the current Term. Agreeing to review an argument made by an Alabama county that it ought finally to be free from one of the key requirements of the Voting Rights Act of 1965, the justices will have an opportunity both to lead and to follow the nation as it roils anew in political and legal battle over the rights of the poor, the ill, the young, the car-less, the black, the Hispanic, and the Native American to vote. Nearing its 50th birthday, the act has become a part of our national lore. One of the crowning achievements of the civil rights movement (and of the Johnson Administration), it was designed by its creators to finally give meaningful legal remedies to minority citizens — blacks, mostly, but not exclusively — who for generations had been precluded from voting (or from having their votes fairly counted) by a dizzying flurry of discriminatory state practices. The act didn’t just expand the scope of existing federal civil rights laws. It completely changed the dynamic between voters and state and local governments. And the results are indisputable: There is far less discrimination in voting today than there was half a century ago — and many millions more minority voters.

Editorials: McCutcheon case could give Citizens United a run for its money in Supreme Court | The Washington Post

McCutcheon could be the new Citizens United. The Supreme Court’s decision Tuesday to hear a campaign finance case, McCutcheon v. Federal Election Commission, in its next term gives the justices a chance to continue their dismantling of restrictions on money in politics, most notably with the landmark Citizens United v. FEC decision of early 2010. With the new case, the court could strike a blow against fundraising limits for federal candidates and political parties. The case does not challenge the $2,600 cap on donations to a single candidate’s campaign but rather the overall limit — $123,000 — that one person can give over a two-year election cycle. Removing that ceiling would allow a single donor to give the maximum amount to more candidates and, crucially, to political parties such as the Republican National Committee, which brought the lawsuit along with Shaun McCutcheon, an Alabama businessman and conservative activist. The court decided decades ago that the government is constitutionally permitted to limit donations to candidates with the goal of fighting corruption. But the RNC argues that there’s no constitutional rationale for limiting how much one donor can give to many candidates. The thinking goes that because each candidate receives only $2,600, none of them ends up corrupted.

Editorials: Oscars put online voting problems back in the spotlight | Rep. Rush Holt/NJ.com

The announcement of this year’s Best Picture winner on Sunday will culminate an experiment unprecedented in the 85-year history of the Academy of Motion Picture Arts and Sciences. For the first time, Oscar winners will be determined largely by votes cast online. At a time when New Jersey and other states are considering holding more consequential elections over the internet, we should ask: How did the Oscar experiment go? Unfortunately, it went poorly, for reasons that shed light on the inherent difficulty of conducting secure, accessible, credible elections online. Problems for Oscar voters began at the beginning: logging in. Voters were required to create special, complex passwords, but when they tried to log in to the Oscar website, many found their passwords rejected. After re-entering passwords several times, voters were locked out of the site entirely and forced to call a help line. Many then had to wait for new passwords, delivered by snail-mail. Even relatively young and tech-savvy voters weren’t immune. As 42-year-old documentarian Morgan Spurloch told the Hollywood Reporter, “There’s even some young farts like myself that are having problems.”

Editorials: Supreme Court Could Create System of Legalized Bribery | Fred Wertheimer/Democracy21

There are enormous stakes for the country in the campaign finance case the Supreme Court agreed to review this week. If the Supreme Court strikes down the existing limits on the aggregate amount an individual can give to all federal candidates and all party committees in a two-year election cycle, the Justices will create a system of legalized bribery in Washington. Such a decision by the Court would be a gold mine for big donors interested in buying  government decisions and would wreak havoc on the interests of ordinary Americans. McCutcheon v. Federal Election Commission, the case to be considered by the Supreme Court, involves a challenge by Shaun McCutcheon and the Republican National Committee to the constitutionality of the federal aggregate contribution limits, upheld by the Supreme Court in 1976 in Buckley v. Valeo.

Editorials: The partisan politics of election laws | Guy-Uriel E. Charles and Luis Fuentes-Rohwer/The Great Debate (Reuters)

Many commentators assume that the conservative Supreme Court justices will strike down Section 5 of the Voting Rights Act. Like Abigail Thernstrom, however, we are not so sure. Congress clearly has the authority to continue to maintain Section 5. If the court does strike it down, though, it will give Congress an opportunity to update the act for the 21st century.  In 2012, state legislatures passed many partisan initiatives designed to constrain the right to vote ‑ ranging from efforts to end same-day registration to adding voter identification laws. In Virginia, state senators used one colleague’s absence to pass a new, arguably discriminatory redistricting plan. In Indiana and North Carolina, new proposals would make it harder for some students to vote. Some states are considering tinkering with the way they choose electors to the Electoral College.

Some of these initiatives may have a disparate racial impact — and might be actionable under Section 2 of the Voting Rights Act. Some may even have been motivated by an intent to discriminate. But many of the actions that affect racial minorities seem to do so for partisan political purposes, not racial reasons.

Unless Congress can stop these partisan initiatives, the parties will increasingly target the other side’s voters for political gain. The American public, meanwhile, ends up as collateral damage.

Editorials: New York Should Hate the Voting Rights Act | Slate Magazine

Next week, the Supreme Court will hear oral arguments in the highly anticipated case Shelby County, Ala. v. Holder. At stake is the constitutionality of Section 5 of the Voting Rights Act, the provision that requires jurisdictions with histories of voter suppression and disenfranchisement to “preclear” any proposed change in electoral procedures with federal authorities before implementation, in order to ensure that they have no discriminatory effects. Unsurprisingly, many of the jurisdictions covered by Section 5 have lined up with Shelby County, urging the court to strike down a provision they believe punishes them for the sins of their grandfathers. Pro-Shelby County amicus briefs, which allow interested third parties to weigh in on the constitutional issues at hand, have been filed by the Republican attorneys general of Alabama, Alaska, Arizona, Georgia, South Carolina, South Dakota, and Texas. But a handful of covered jurisdictions have weighed in on the other side. Most notable among them is New York City, which asserts that Congress is within its constitutional authority to subject the city to special procedures on account of discrimination dating back nearly a century. The reasons why Southern states like Alabama and Georgia are covered by Section 5 are well known. At the close of Reconstruction, the resurgent white elite in these states relied on dastardly legal strategies and violence, up to and including outright murder, to keep African-Americans from voting, especially in the majority-black counties that blanket the Deep South. In other historically majority-minority sections of the country, native-born whites used similar albeit generally less violent voter suppression schemes to keep Latinos from voting, in states like Arizona and Texas, and Native Americans from casting ballots, in places like Alaska and South Dakota.

Editorials: Kenya’s elections: a make or break moment? | openDemocracy

The prospects of a trouble-free election in Kenya look increasingly uncertain. Kenyans go to the polls on 4 March for the first time since widespread post-election violence killed more than 1,000 people and brought the country to the brink of civil war in 2007-8. While President Kibaki has affirmed that this time the country is on track for fair and peaceful elections, indications from the ground suggest otherwise. The international community must be ready to respond to what may be a very chaotic and destabilising election period. The harsh reality is that Kenya is a more violent place than it was before the 2007 election. There has been a significant rise in group violence over the last year. For example, clashes in Tana River Delta during the second half of 2012 left more than 140 dead, while street protests in Mombasa in August 2012 killed four. While these incidents may be sparked by local grievances, there is evidence that local politicians are stoking the violence. Moreover, violent disturbances are already affecting the election process. The local party primaries in January were almost derailed in some areas by organised violence, including large-scale street fighting.

Editorials: The partisan politics of election laws | Guy-Uriel E. Charles and Luis Fuentes-Rohwer/The Great Debate (Reuters)

Many commentators assume that the conservative Supreme Court justices will strike down Section 5 of the Voting Rights Act. Like Abigail Thernstrom, however, we are not so sure. Congress clearly has the authority to continue to maintain Section 5. If the court does strike it down, though, it will give Congress an opportunity to update the act for the 21st century. In 2012, state legislatures passed many partisan initiatives designed to constrain the right to vote ‑ ranging from efforts to end same-day registration to adding voter identification laws. In Virginia, state senators used one colleague’s absence to pass a new, arguably discriminatory redistricting plan. In Indiana and North Carolina, new proposals would make it harder for some students to vote. Some states are considering tinkering with the way they choose electors to the Electoral College. Some of these initiatives may have a disparate racial impact — and might be actionable under Section 2 of the Voting Rights Act. Some may even have been motivated by an intent to discriminate. But many of the actions that affect racial minorities seem to do so for partisan political purposes, not racial reasons. Unless Congress can stop these partisan initiatives, the parties will increasingly target the other side’s voters for political gain.  The American public, meanwhile, ends up as collateral damage.

Editorials: Kenya’s Election Campaign Is Being Run On Amnesia | NYTimes.com

I was negotiating one of Nairobi’s terrifying traffic circles — a maneuver that requires jumping over a lattice of open sewers while playing chicken with a line of trucks snorting their way toward Uganda and Congo — when I was confronted with a vision to chill the heart and drop the jaw. Twenty young Kenyan volunteers in T-shirts and caps printed with the candidate’s face were jiving and chanting on the back of a campaign truck as it trundled toward the Sarit Center shopping mall in Westlands: “Vote for Brother Paul!” It was my first day back in the city that was once my home, and I’d just caught a glimpse of what must surely be the overriding characteristic of this East African country’s forthcoming general elections: shamelessness. For Brother Paul, as he is known since he found God, was once plain Kamlesh Pattni, the smirking, mustachioed brains behind Goldenberg, the biggest financial scandal in Kenyan history. The scam, in which top officials looted public coffers by claiming compensation for phantom gold exports, sent the economy into a nose dive that cost Kenya at least 10 percent of G.D.P. in the 1990s. Yet Pattni clearly sees no reason why that awkward fact should bar him from office.

Editorials: A commission on voting issues is a good start | The Washington Post

Since November, President Obama has been promising to do something about extremely long voting lines and other shameful Election Day lapses. Last week, he began to make good on his pledge, unveiling “a nonpartisan commission to improve the voting experience in America,” headed by Bob Bauer and Benjamin Ginsburg, the lawyers for Mr. Obama’s and Mitt Romney’s 2012 campaigns, respectively. The Post’s Nia-Malika Henderson and Felicia Sonmez report that critics are already attacking the idea. Conservatives question why the federal government needs to get more involved with voting. Voting-rights activists wonder why the president needs a commission when he could champion any of the sensible reform proposals already sitting in Congress. But the commission is a good idea, for at least two reasons.

Editorials: The More Things Change … | Linda Greenhouse/NYTimes.com

Despite spending a lot of time reading and thinking about the Voting Rights Act case the Supreme Court will hear next week, there’s a puzzle I’m still trying to crack: How can it be that one of the crowning achievements of the civil rights movement, a provision upheld on four previous occasions by the Supreme Court and re-enacted in 2006 by overwhelming bipartisan majorities in Congress (98-0 in the Senate, 390-33 in the House), a law that President George W. Bush urged the justices to uphold again four years ago in one of his final acts in office, a law that has demonstrably defeated myriad efforts both flagrant and subtle to suppress or dilute the African-American vote, is now hanging by a thread? Of the hanging-by-a-thread part, there’s little doubt. Four years ago, in Northwest Austin Municipal Utility District No. One v. Holder, a case commonly referred to as Namudno, the Supreme Court came within a hair’s breadth of declaring the Voting Rights Act’s Section 5 unconstitutional. “Things have changed in the South,” Chief Justice John G. Roberts Jr. declared in the court’s opinion, an oft-quoted line of pithy constitutional analysis that took its place with the chief justice’s other profound musings on race in America. (The others, so far, are “It is a sordid business, this divvying us up by race,” dissenting in 2006 from a decision awarding a rare victory to Latino plaintiffs who had sued to invalidate a Texas congressional district; and “The way to end racial discrimination is to stop discriminating by race,” in a 2007 plurality opinion striking down integration-preserving efforts by public school districts in Louisville, Ky., and Seattle.)

Editorials: Can Vote-By-Mail Fix Those Long Lines At The Polls? | ProPublica

In his State of the Union address, President Obama returned to a point he’d made on election night: The need to do something about long voting lines. Obama announced his plan for a commission to “improve the voting experience in America.” But often missing from discussions about how to make voting easier is the rapid expansion of absentee balloting. Letting people vote from home means fewer people queuing up at overburdened polling places. So why hasn’t vote-by-mail been heralded as the solution? When it comes to absentee and mail-in voting, researchers and voting rights advocates aren’t sure the convenience is worth the potential for hundreds of thousands of rejected ballots. Although Oregon and Washington are the only two states to conduct elections entirely by mail, absentee voting has expanded rapidly nationwide. Since 1980, the number of voters using absentee ballots has more than tripled. Roughly one in five votes is now absentee.

Editorials: Voting Rights Act: the 2012 Election Proves Exactly Why We Need It | PolicyMic

This month, the Supreme Court will hear arguments that could end key provisions of the Voting Rights Act. Shelby County vs. Holder will challenge the provision requiring designated jurisdictions to receive “pre-clearance” before changing election laws. If there was any doubt that the Voting Rights Act needs to be retained, those doubts should have been erased by what happened in 2012. The greatest justification was the concerted effort by right-wingers to suppress the vote. Republican state houses throughout the country constructed an elaborate and calculated effort to suppress voter turnout. The widespread effort targeted specific demographics and were designed to make it more difficult for voters to exercise their franchise. It was the type of activity expressly forbidden by the Voting Rights Act. The 2012 elections were a case study in support of retaining the Voting Rights Act of 1965. The right to vote is not articulated in the Constitution; however, constitutional amendments state that you cannot prevent an eligible citizen from voting. The Voting Rights Act outlaws practices that prevent eligible citizens from reaching the polls, and yet, in 2012 elected officials were still trying to find ways to deny the vote.

Editorials: The strong case for keeping Section 5 | Morgan Kousser/The Great Debate (Reuters)

There are deep ironies in the current case against Section 5 of the Voting Rights Act. Before a 5-4 Republican majority of the Supreme Court opens the door to stronger voter suppression laws by overturning it in Shelby County v. Holder, the justices ‑ and the informed public ‑ should consider how effective Section 5 has been. Highly unusual political conditions made the act’s passage and renewals possible, and there would be almost insuperable difficulty in replacing it now that those conditions have changed. Since 2009, I have been compiling a comprehensive list of voting rights incidents. (I have also served as an expert witness in such voting rights cases as those challenging the 2011 Texas redistricting laws.) The list now has 4,141 incidents: legal cases brought under Section 2 of the Voting Rights Act; legal cases brought under Section 5 of the act; objections by the Justice Department under Section 5 and “more information requests” issued by the department as part of the Section 5 process, if they resulted in pro-minority changes in election laws; and 14th Amendment cases.

Editorials: Shelby County v. Holder: Why Section 2 matters | Ellen D. Katz/SCOTUSblog

Four years ago, when the Supreme Court last considered the constitutionality of Section 5 of the Voting Rights Act (VRA), Justice Kennedy questioned why “[t]he sovereignty of Alabama is less than the sovereign dignity of Michigan,” and why the government of one is “to be trusted less” than the government of the other. Should the Justices now strike down the statute, as many think they are poised to do, the reason why will likely be their belief that places like Alabama are no longer any different from places like Michigan –  or, better yet, Ohio, where Section 5 is wholly inapplicable. Voters may confront difficulties in Alabama, the Justices would posit, but these difficulties appear no worse than those faced by voters in those states left unregulated by Section 5. Therefore, Section 5 must be invalid.  Q.E.D. Sounds plausible perhaps, but take a closer look. As an initial matter, it is not at all clear that the Court needs to compare covered and non-covered jurisdictions in order to assess the constitutionality of the VRA. The issue presented in Shelby County v. Holder is not whether the Justices think Alabama is worse than Ohio, or even whether Congress might permissibly conclude that it is. Instead, Shelby County presents a different question: whether Congress has the power to extend a remedial regime that everyone agrees it lawfully adopted based on its conclusion that the regime continues to do critical work in the places where it operates. That conclusion should not be suspect, much less invalid, simply because problems have since developed in other jurisdictions that Congress might also appropriately regulate.

Editorials: Voting Rights Act section is partisan political issue | The Greenville News

The Supreme Court is said to be close to a decision on the future of one provision of the Voting Rights Act that could simplify elections, speed up the unreasonably long process of redistricting, and reduce government expense in nine state’s where the provision is applied – including Mississippi. Adopted by Congress during the height of the American civil rights struggle, Section 5 of the 1965 Voting Rights Act identified states and localities with a history of race-based voter discrimination and mandated that those “covered jurisdictions” must obtain federal approval or “preclearance” from the U.S. Justice Department before making changes to any state or local voting laws or districts. Without question, at the time Section 5 was adopted in 1965, Mississippi’s track record on civil rights in general and voting rights in particular was nothing short of abysmal and shameful. But that was almost a half-century ago and times have changed in Mississippi.

Editorials: Shelby County v. Holder: Don’t forget the Elections Clause | Daniel Tokaji/SCOTUSblog

The debate over the constitutionality of Voting Rights Act preclearance has focused almost entirely on whether it lies within Congress’s power to enforce the Fourteenth and Fifteenth Amendments to the Constitution.  That’s understandable, especially since the Supreme Court’s cert. grant in Shelby County v. Holder is limited to Congress’s authority under these provisions. There is, however, another provision of the Constitution that authorizes many – though not all – applications of the VRA’s preclearance requirements.  Under the Elections Clause of the Constitution, Congress has broad authority to regulate congressional elections.  Given that Shelby County has brought a facial challenge to Sections 4(b) and 5 of the VRA, the existence of an alternative basis for upholding some applications of the statute shouldn’t be overlooked.  The Elections Clause is sufficient to prevent facial invalidation of the statute, regardless of how the Fourteenth and Fifteenth Amendment issues are resolved.

Editorials: Shelby County v. Holder: Voting discrimination remains concentrated in covered states | Spencer Overton/SCOTUSblog

The Supreme Court is poised to decide the fate of the Voting Rights Act’s preclearance process – one of our nation’s most powerful tools in combating discrimination.  The Court should not second-guess Congress’s determination that voting discrimination remains concentrated in covered jurisdictions, and should uphold the law. Section 5 of the Voting Rights Act requires that covered jurisdictions (nine states plus parts of seven others) “preclear” their proposed election law changes with federal officials. Shelby County, Alabama, argues that preclearance is no longer warranted in covered jurisdictions because increases in minority voters and elected officials show discrimination has waned.  Shelby County also contends that the voting discrimination that still does exist is no longer concentrated in covered jurisdictions, and that a coverage formula based on election data from 1964, 1968, and 1972 presidential elections is obsolete.

Editorials: Voting Should Be Easy – Modernize Registration | NYTimes.com

President Obama has a long agenda for his State of the Union address, but it is important that he not forget the most fundamental democratic reform of all: repairing a broken election system that caused hundreds of thousands of people to stand in line for hours to vote last year. It is time to make good on his election-night promise. Those seeking political power by making voting more inconvenient will resist reforms, but a better system would actually be good for both parties and, more important, the country.Long lines are not the inevitable result of big turnouts in elections. They are the result of neglect, often deliberate, of an antiquated patchwork of registration systems that make it far too hard to get on the rolls. They are the result of states that won’t spend enough money for an adequate supply of voting machines, particularly in crowded cities and minority precincts. And they are the result of refusals to expand early voting programs, one of the best and easiest ways to increase participation.

Editorials: Election Law and Compromise: Reactions to President Obama’s Election Commission | PrawfsBlawg

Last night’s State of the Union address included some big news for us election law folk:  the creation of a Presidential Commission on Election Administration, to be chaired by Obama’s top election lawyer, Bob Bauer and Mitt Romney’s top election lawyer, Ben Ginsberg.  Here is what Obama said last night in his speech:

“We must all do our part to make sure our God-given rights are protected here at home. That includes one of the most fundamental rights of a democracy, the right to vote.  When any American — no matter where they live or what their party — are denied that right because they can’t wait for five or six or seven hours just to cast their ballot, we are betraying our ideals.  So, tonight, I’m announcing a nonpartisan commission to improve the voting experience in America. And it definitely needs improvement. I’m asking two long-time experts in the field — who, by the way, recently served as the top attorneys for my campaign and for Governor Romney’s campaign — to lead it. We can fix this. And we will. The American people demand it, and so does our democracy.”

This is, in my view, a significant step in the right direction.  President Obama has doubled-down on his Election Night statement that “we have to fix that” (referring to long lines at the polls) and his follow-up in his Inaugural address that “[o]ur journey is not complete until no citizen is forced to wait for hours to exercise the right to vote.”

Editorials: Shelby County v. Holder: Latino voters need Section 5 today more than ever | Nina Perales/SCOTUSblog

In the 2012 general election, an estimated ten percent of votes were cast by Latinos. The record high number was accompanied by media commentary expressing surprise at the strength of the Latino vote.   Of course Latino voters did not “awaken” last year.  In the slow and steady march towards increased political participation, Latinos have fought to overcome laws aimed at preventing them from voting and reducing the strength of their vote. Throughout this process, Section 5 has played a central role in protecting Latino voters from the backsliding and gamesmanship that characterize the voting laws of many jurisdictions in which Latinos live.   The decision this Term in Shelby County, Alabama v. Holder will be critical to the ability of the growing Latino electorate to participate on an “equal basis in the government under which they live.”

Editorials: Shelby County v. Holder: Forget the coverage formula, what about the effects test? | Joshua Thompson/SCOTUSblog

The upcoming oral argument in Shelby County v. Holder is not likely to produce any surprises – we had a sneak preview four years ago in Northwest Austin Municipal Utility District Number One v. Holder.  While Northwest Austin ultimately turned on the tiny district’s eligibility to bail out from Section 5’s provisions, the oral argument centered on the broader question of Section 5’s constitutionality. The arguments in Shelby County will likely rehash those same arguments fromNorthwest Austin. In defense of Section 5, the United States will argue that most of the targeted jurisdictions have a lengthy history of intentional discrimination. Shelby County will counter that “current burdens … must be justified by current needs.”  The United States will argue that but, for Section 5, covered states would revert to the blatant intentionally discriminatory practices that once justified Section 5.  Shelby County will respond that such an argument assumes the culture of the South hasn’t changed in the past fifty years. The United States will also argue that the Court should defer to Congress’s 16,000-page record. Shelby County will respond that deference is uncalled for, and that the congressional record – no matter how large – fails to contain contemporary evidence that justifies singling out the covered jurisdictions.

Editorials: Shelby County v. Holder: Bad behavior by DOJ contributes to the fall of Section 5 | Christian Adams/SCOTUSblog

There are three main reasons why I think Section 4 of the Voting Rights Act – which outlines the formula that is used to determine whether a jurisdiction is “covered” by the preclearance requirement created by Section 5 – will be struck down in Shelby County v. Holder, scheduled for argument at the Court on February 27. Remember, of course, that Section 4 triggers are at issue, not the substantive provisions of Section 5. Even if Section 4 triggers survive Shelby County, two new challenges will then follow.  First, depending on how the opinion is written, the states brought into Section 4 coverage through the 1975 amendments may still have a challenge.  The statutory triggers for Alabama are not precisely the same as the triggers for Arizona or Alaska, two states which must also seek Section 5 preclearance. Even if the plaintiffs in Shelby County lose, Arizona and Alaska wait in the wings.  These states were brought into Section 4 coverage based in large part on minority language issues, and nowhere in the Fifteenth Amendment is language discussed.  Race is.  Of course, the Court may wipe out this claim depending on how the opinion is written, or, it may invite the next wave even while upholding triggers for Alabama.

Editorials: Obama Says We Need to Fix Voting Lines. But How? | ProPublica

At tonight’s State of the Union address, Michelle Obama will be joined by 102-year-old Desiline Victor, who, like many in Florida and elsewhere, waited hours to vote on Election Day. “By the way,” Obama said in his election speech. “We have to fix that.” But how to fix it remains unclear. Though new research on states’ performance in the November election reveals long lines kept thousands from voting, there’s still much we don’t know about what would best speed up the process. Victor’s home state of Florida had the longest average wait timeof any state at 45 minutes. Victor waited for three hours. Other Floridians reported standing in line for up to 7 hours. Not every voter had Victor’s stamina: Professor Theodore Allen at Ohio State University estimated that long lines in Florida deterred at least 201,000 people, using a formula based on voter turnout data and poll closing time. The number only includes people discouraged by the wait at their specific polling site, and not those who stayed home due to “the general inconvenience of election day.” The real number, Allen says, is likely much higher. One study also showed that black and Hispanic voters nationwide waited longer on average than white voters.

Editorials: What of congressional power over voting? | Franita Tolson/The Great Debate (Reuters)

If the Supreme Court strikes down Section 5 of the Voting Rights Act in Shelby County v. Holder, the focus will turn to Congress and the question of what legislation it should enact in place of Section 5. An equally compelling question is what will happen to the scope of congressional authority over elections. In City of Boerne v. Flores (1997), the court identified the Voting Rights Act as the ideal piece of remedial legislation, perfectly tailored to address the harm of voting discrimination and therefore an “appropriate” use of congressional authority. The court made this determination without discussing the combined authority of Congress under the 14th and 15th Amendments to regulate state and federal elections. The decision focused only on authority granted under the 14th Amendment.

Editorials: Voting Rights 2.0: How the Supreme Court could make the VRA better instead of striking it down | Emily Bazelon/Slate Magazine

Congressional District 23 cuts across a rural swath of southwestern Texas, from the state’s border with New Mexico, hundreds of miles south along the Rio Grande, stretching east to San Antonio. It’s among the least densely populated terrain in the country—and the most electorally disputed. The district was created in 1967, two years after the passage of the Voting Rights Act. The voters of District 23 sent a Democrat to Congress every term until the 1992 election. At that point, following the 1990 census, which gave Texas three additional seats, District 23 was redrawn to include a Republican-leaning part of San Antonio. Republican Henry Bonilla won the 1992 election. And in 2003, the district was redrawn again to keep him there, by moving 100,000 Latinos out. Bonilla was still in office in 2006, when the Supreme Court ruled that District 23 violated the Voting Rights Act. The act bars states and cities from discriminating against minority voters with crude tools like poll taxes and literacy tests (and in our time, some voter ID requirements); it also aims to ensure that when district lines are redrawn, they can’t be gerrymandered in a way that dilutes the electoral power of minorities. District 23 was supposed to be a Hispanic opportunity district—one in which Latinos could potentially elect their preferred candidate despite the racially polarized voting patterns of Anglos in the area. From ’92 on, Latinos were voting against Bonilla in greater numbers each time, nearly ousting him in 2002. But the 2003 map, the Supreme Court said, in essence “took away the Latinos’ opportunity because Latinos were about to exercise it.”

Editorials: Shelby County v. Holder: Reasons to believe | Michael J. Pitts/SCOTUSblog

With the Shelby County case, the Supreme Court has provided itself with a “clean” litigation vehicle to strike down Section 5 of the Voting Rights Act.  In academic circles, the conventional wisdom seems to be that the seminal preclearance provision of the Act is a goner.  Indeed, academics are already conducting online forums speculating about what comes next after the Court dismantles Section 5. But are there any reasons to think that Section 5 might survive?  Although Section 5’s position seems precarious, let’s consider three reasons why Shelby County might turn out differently than the conventional, academic wisdom holds. Why the wait? A little less than four years ago, the Supreme Court had Section 5 teed up to be declared unconstitutional.  In Northwest Austin Municipal Utility District No. 1 v. Holder (NAMUDNO), a majority of the Court easily could have sunk the preclearance provision if they so desired.  Instead, the Court opted to engage in a less than credible interpretation of the statute that allowed the Court to duck the constitutional question.  If the Court now is hellbent on using Shelby County to declare Section 5 unconstitutional, why the wait?

Editorials: Shelby County v. Holder: Why Section 2 now renders Section 5 unconstitutional | Hashim Mooppan/SCOTUSblog

The Fourteenth and Fifteenth Amendments proscribe intentional racial discrimination in voting, and Section 2 of the VRA already vigorously “enforces” those constitutional proscriptions by imposing a prophylactic nationwide ban on voting practices that are judicially determined to cause discriminatory “results.”  Accordingly, Section 5 of the VRA – which additionally imposes an extraordinary preclearance regime on all voting changes in selectively covered jurisdictions – can be justified as an appropriate “enforcement” measure only insofar as it targets potentially unconstitutional voting practices that are somehow beyond the effective reach even of Section 2’s ordinary anti-discrimination litigation. This is common sense, but it is much more than that.  The Supreme Court consistently has relied upon this limited remedial justification for Section 5 when upholding and construing prior versions of the statute.  Indeed, the Court has strongly suggested that exceeding this narrow supplemental function would impose excessive burdens on covered jurisdictions and could require excessive consideration of race in electoral decision making, thereby drawing Section 5 into conflict with the very constitutional provisions that it purports to “enforce.”