Supreme Court delivers blow to voting rights act. “Bail in” procedure may offer recourse.

The decision.

Today’s Shelby County vs. Holder U.S. Supreme Court decision will open the door to voter suppression in areas of the country where the Voting Rights Act has been acting as a deterrent. In the very immediate future, it means that voter ID laws in North Carolina, Virginia, Alabama, and Mississippi will be quickly revived or made anew and given safe passage to governors’ desks. Previous to today’s SCOTUS decision, all chanages to voting laws in those states would by default have to be reviewed by the U.S. Department of Justice first by virtue of Sections 4 and 5 of the 1965 Voting Rights Act.

North Carolina’s state senator Tom Apodaca announced this morning that he would move his state’s new voter ID law out of committee next week due to news of the SCOTUS decision.

In the words of ScotusBlog, the court “held that Section 4 of the Voting Rights Act, which sets out the formula that is used to determine which state and local governments must comply with Section 5’s preapproval requirement, is unconstitutional and can no longer be used. Thus, although Section 5 survives, it will have no actual effect unless and until Congress can enact a new statute to determine who should be covered by it.”

(Insert standard joke about depending upon Congress for legislation here.)

Assuming it will take America some time to get Congress to act, another immediate legal remedy by way of sections 4 and 5 of the Voting Rights Act seems to be the “bail in” procedure.

From ScotusBlog:
Comment From C.D.
Doesn’t the “bail in” procedure allow judges to add jurisdictions for preclearance? So couldn’t a case be brought in, say, Alabama seeking that remedy for Shelby County or even statewide? From Tejinder: Yes, we think so. And in fact, it’s a real possibility that the DOJ will react to the demise of the coverage formula by bringing “bail in” suits against jurisdictions with a history of violations. We’re continuing to look into this, but we think that one real possibility is that the bail-in provision will become a possible substitute for the coverage formula. Potentially covered jurisdictions will probably resist efforts to bail them in on the basis of old violations (as opposed to recent ones), and the issue will likely be litigated fiercely.

The “bail in” procedure is authorized by section 3 of the VRA.

I feel I should mention that section 2 of the VRA prohibits discrimination against voters as well, and still stands, but it is enforced through federal district courts – an expensive process that puts the burden of proof on the person(s) bringing the claim.

In contrast, voters in regions covered by Section 5 could rely on their local governments to submit voting law changes to the US DOJ through a simple procedure. If those governments defied the law and went ahead with election changes anyway after the DOJ did no approve their voting changes, the US DOJ had the authority to step in and force a new and legal election [as occurred in Alabama on at least one occasion per this American Constitution Society video].

The map below was current as of January 2008. [Here’s a current one at WashPost] It shows areas of the U.S. that needed to get all voting law changes precleared by the U.S. DOJ at the time. Some variation of this map has been in effect since 1965. As of 1975, section 5 expanded to protect language minorities, defined as Hispanics, Asian Americans, American Indians, and Alaskan Natives.

section 5 jurisdictions

In his majority opinion, Chief Roberts stated that
“…40-year-old facts having no logical relation to the present day”.

I’ve pulled that out of context for effect.

Here’s a bit more of what preceded that comment from the majority opinion:
“In assessing the ‘current need’ for a preclearance system treating States differently from one another today, history since 1965 cannot be ignored. The Fifteenth Amendment is not designed to punish for the past; its purpose is to ensure a better future. To serve that purpose, Congress—if it is to divide the States—must identify those jurisdictions to be singled out on a basis that makes sense in light of current conditions. … Congress did not use that record to fashion a coverage formula grounded in current conditions. It instead re-enacted a formula based on 40-year-old facts having no logical relation to the present day.”

I don’t buy it.

If you did, may I suggest a reading of Justice Ginsburg’s dissenting opinion? It should quickly halt any post-racial visions you may have of The South (Or should I say “America”? Several regions on the VRA map are in the North.)

Ginsburg provides ample evidence that the Voting Rights Act as it functioned was powerful and necessary and remains so today:

“In 2001, the mayor and all-white five-member
Board of Aldermen of Kilmichael, Mississippi,
abruptly canceled the town’s election after “an
unprecedented number” of African-American can­
didates announced they were running for office.
DOJ required an election, and the town elected its
first black mayor and three black aldermen”

Ginsburg provides case after case of modern discrimination against black voters in the areas covered by the VRA. Here’s a very modern example which occurred in Alabama:

[sorry for poor formatting]

“A recent FBI investigation provides a further window
into the persistence of racial discrimination in state poli­tics. See United States v. McGregor, 824 F. Supp. 2d 1339,
1344–1348 (MD Ala. 2011). Recording devices worn by
state legislators cooperating with the FBI’s investigation
captured conversations between members of the state
legislature and their political allies. The recorded conver­sations are shocking. Members of the state Senate deri­sively refer to African-Americans as “Aborigines” and talk
openly of their aim to quash a particular gambling-related
referendum because the referendum, if placed on the
ballot, might increase African-American voter turnout.
Id., at 1345–1346 (internal quotation marks omitted). See
also id., at 1345 (legislators and their allies expressed
concern that if the referendum were placed on the ballot,
“‘[e]very black, every illiterate’ would be ‘bused [to the
polls] on HUD financed buses’”). These conversations oc­curred not in the 1870’s, or even in the 1960’s, they took
place in 2010. Id., at 1344–1345. The District Judge
presiding over the criminal trial at which the recorded
conversations were introduced commented that the “re­cordings represent compelling evidence that political
exclusion through racism remains a real and enduring
problem” in Alabama. Id., at 1347.
Racist sentiments, the judge observed, “remain regrettably entrenched in the high echelons of state government.” Ibid.
These recent episodes forcefully demonstrate that §5’s
preclearance requirement is constitutional as applied to
Alabama and its political subdivisions.8 And under our
case law, that conclusion should suffice to resolve this
case. See United States v. Raines, 362 U. S. 17, 24–25
(1960) (“[I]f the complaint here called for an application of
the statute clearly constitutional under the Fifteenth
Amendment, that should have been an end to the question
of constitutionality.”)

In the first paragraph of Justice Ginsburg’s incredible dissenting opinion, she concisely lays out her argument which she hammers home solidly and repeatedly as if hitting so many home runs:

In the Court’s view, the very success of §5 of the Voting Rights Act demands its dormancy. Congress was of another mind. Recognizing that large progress has been made, Congress determined, based on a voluminous rec­ord, that the scourge of discrimination was not yet extir­pated. The question this case presents is who decides whether, as currently operative, §5 remains justifiable,1 this Court, or a Congress charged with the obligation to enforce the post-Civil War Amendments “by appropriate legislation.” With overwhelming support in both Houses, Congress concluded that, for two prime reasons, §5 should continue in force, unabated. First, continuance would facilitate completion of the impressive gains thus far made; and second, continuance would guard against back­sliding. Those assessments were well within Congress’ province to make and should elicit this Court’s unstinting approbation.”

As I continue to read Ginsburg’s dissent it’s maddeningly clear that the Supreme Court majority is not acting consistent with the logic the court has created for itself known as “precedent”.

In this layperson’s opinion the court also isn’t addressing the America we’ve come to know in “reality”.

Here’s some more history on the VRA:
“When Congress first drafted that law, it targeted states or communities with the most flagrant histories of bias against minority voters. It chose as its starting point the states that had used a discriminatory voting law or method that was in effect in November 1964. More recently, the formula was changed to key it to the situation as of 1972. When the formula applies, states can only regain control over their election laws by proving that they have not discriminated for at least ten years. As long as the law applies to them, any change in voting provisions is automatically blocked as soon as it is adopted, and can only be put into effect with the permission either of the Justice Department or of a special federal court in Washington. If an entire state is covered, not only the state government but also all of its local governments, too, must obey the law. In other states where it partially applies, only specific local units are covered.”
from
Voting rights case: Made simple at ScotusBlog

lbj mlk rosa parks
President Johnson, Martin Luther King, Jr. and Rosa Parks at the signing of the Voting Rights Act on August 6, 1965.

More resources:

reddit’s /r/law

Shelby County vs. Holder oral argument at Oyez.
If you click on the “Argument” link at this site, you will be able to both listen to the argument and read the transcript simultaneously. Pretty neat.

Oral argument directly from Supreme Court: multiple audio formats, full transcript.

The Katz Study
Cited in Ginsburg dissent: “If differences in the risk of voting discrimi­nation between covered and noncovered jurisdictions had
disappeared, one would expect that the rate of successful
§2 lawsuits would be roughly the same in both areas.6
The study’s findings, however, indicated that racial discrimi­
nation in voting remains “concentrated in the jurisdictions
singled out for preclearance.” ”

Voter Support:
VoteRiders is developing information, legal, and volunteer networks across the U.S. where vote suppression is an issue.

List of States, Counties, and Townships Covered (formerly) by Section 5 from US DOJ

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