Search Results for: shelby

Justin Levitt has posted this draft on SSRN (Yale Law Journal Online).  Here is the abstract:

In addition to its remarkable substantive impact, Section 5 of the Voting Rights Act is a provision of enormous expressive and historical importance. But the extent to which the statute is also a symbol has some unrecognized downsides. In the current Shelby County litigation, reviewing a challenge to section 5, much of the argument seems to revolve around a simulacrum of section 5, rather than the statute itself. This simulacrum is much like an editorial cartoonist’s rendering of a political figure, in which particular features take on exaggerated salience. Many elements of the simulacrum have at least the ring of truth, which helps to explain the staying power of the image. But though the cartoon version of the preclearance regime resembles the original, the exaggerated features—including preconceived notions of the obsolescence of the regime’s primary operating system, the extent to which it fosters racial essentialism, and its place within our federalist structure—distort rather than clarify our understanding of the legality of the portions of the Voting Rights Act at issue. This short Essay investigates some of the more striking elements of the section 5 simulacrum, contrasting the cartoon vision of section 5 with the more fully contextualized operation of the actual statute.

Joey Fishkin has posted this draft on SSRN (Yale L.J. Online).  Here is the abstract:

The plaintiffs in Shelby County v. Holder argue that section 5 of the Voting Rights Act should be struck down because it offends the “equal dignity” of the covered states — an argument the Court appeared to credit in its last brush with section 5 in NAMUDNO. This Essay, written in advance of the decision in Shelby County, critically examines this equal dignity of the states argument and situates it in a larger context. Americans have been fighting for 150 years, since the Civil War and Reconstruction, about the structural implications of the events of 1861–70 for the sovereignty, dignity, and equality of the states — and of the Southern states in particular. The equal dignity of the states argument thus stakes a claim on the meaning of the Civil War and Reconstruction in American historical memory, a claim whose implications are problematic and profound,

Here.

Richard Wolf reports for USA Today on Shelby County and Fisher.

The following press release arrived via email:

Gary May has written this WaPo oped.  It begins: “In the debate over the future of the Voting Rights Act , it sometimes becomes apparent that certain members of the Supreme Court are either oblivious to our nation’s recent history or willfully ignore it. Justice Antonin Scalia made this abundantly clear in his comments during the Feb. 27 oral argument in Shelby County v. Holder , statements that he repeated in a speech on April 15.”

Jess Bravin:

Supreme Court Justice Antonin Scalia told university students that key provisions of the Voting Rights Act had evolved from an emergency response to racial discrimination in 1965 to an “embedded” form of “racial preferment” that would likely continue indefinitely unless the court acts to end them.

Justice Scalia, speaking Monday night at the University of California Washington Center, elaborated on remarks he made in February during Supreme Court arguments over the act’s Section 5, which requires states and localities that historically discriminated against minority voters to obtain federal approval to change election procedures.

Section 5 functions as a racial entitlement because the federal government doesn’t take a similar interest in protecting the voting rights of white people from racial discrimination, Justice Scalia said.

The remarks are not much different from what Justice Scalia said at oral argument in the Shelby County case, but I find it pretty remarkable that he’d make these comments off the bench while Shelby County remains pending.

UPDATE: It gets worse, as Justice Scalia appears to tip his hand on how he’s voting in an upcoming case.

Ellen Katz has written this important new article for Columbia Law Review’s Sidebar, the first in a series of essays on election law issues in the 2012 election.  From the introduction:

Undeniably, things have changed. Opportunities for minority political participation in places like South Carolina have evolved since Congress first enacted the VRA. Supporters of the VRA readily acknowledge as much but argue that this evolution is less developed, more fragile, and more dependent on section 5’s continued operation than South Carolina and others siding with the petitioners in Shelby County maintain.⁵ The pending case accordingly presents the Court with competing narratives, one of a problem solved and, hence, a statute that has run its course, and another depicting a vulnerable work in progress that requires the sustained attention the VRA provides.

There is, nevertheless, an additional narrative the Justices should consider when they evaluate how far places subject to the VRA’s regional provisions have evolved. This narrative posits that section 5 is far from obsolete and operates not only as a restraint on the ill-intentioned, but also as an affirmative tool of governance. On this account, one of the VRA’s most critical, albeit least appreciated, functions is the way in which it helps public officials navigate complex contemporary questions concerning equality of opportunity in the political process.⁶
A good example of the VRA’s role in this regard is found in the recent dispute over voter identification (ID) in South Carolina. The “evolutionary process”⁷ through which voter ID came to be approved in South Carolina shows section 5 operating not only as a constraint, but also as a constructive mechanism for dispute resolution. In this capacity, section 5 helped produce a voter ID measure which, as one reviewing judge explained, “accomplishes South Carolina’s important objectives, while protecting every individual’s right to vote and . . . addressing the significant concerns” about the measure’s impact on minority voters.⁸

Let me begin with the caveat that it is always hazardous to predict what the Supreme Court is going to do from reports at oral argument (See, e.g., the health care case). That said, I want to explore what seems most likely to happen at this point with the Supreme Court’s term, and what it would mean.  My best guess today is that Justice Kennedy will be in slim majorities reaching the following results: the Court will not recognize a right to same sex marriage in the California Proposition 8 case, although the means of doing so will likely leave a lower court ruling enjoining California from enforcing Proposition 8 standing; that the Court will strike down section 3 of the Defense of Marriage Act as an unconstitutional affront to traditional state power to define and regulate marriage; that the Court will hold that the coverage formula of section 4 of the Voting Rights Act is an unconstitutional affront to state sovereignty, leaving open the possibility that the Congress could rework a new coverage formula more closely tied to current evidence of intentional racial discrimination in the sates (something Congress will never do); and the Court will not issue a far-reaching decision in the University of Texas affirmative action case, leaving open some issues to be addressed in future cases in future terms, such as the Michigan case the Court just agreed to hear.

If this is the end result of the term, parts will make conservatives mad (such as striking down DOMA, and making the federal government pay same sex benefits to those whose same-sex marriages are recognized by their state) and parts will make liberals mad (such as effectively striking down a crown jewel of the civil rights movement, and failing to go all the way and recognize a constitutional right to same-sex marriage).

Justice Kennedy will probably feel pretty good about a term like this, and in the past he hasn’t minded being alone, in the middle, frustrating his colleagues on the left and the right.  I think of his opinion in the partisan gerrymandering case of Veith v. Jubelirer, where his four conservative colleagues took the position that courts could not hear partisan gerrymandering claims (because they presented political questions with unmanageable judicial standards) and his four liberal colleagues offered a host of standards for reining in partisan gerrymandering, parading them in beauty pageant fashion for Justice Kennedy.  Justice Kennedy took the position that the cases could be heard, but so far no one had come up with any standard to police the constitutionality of such gerrymandering. It was a somewhat inscrutable opinion—keeping the issue open to percolate some more and saying plaintiffs can come to court with these claims which they would continue to lose, until Justice Kennedy found a standard he liked (he still hasn’t).

So Justice Kennedy is fine with 4-1-4 splits on the Court (although some things he might do on standing could bring along additional votes—the Chief, for example, might go along with a decision to find that Prop. 8 initiative proponents have no standing rather than write or join a fiery dissent extolling the virtues of traditional marriage).  The vision will be one of state’s rights, and defended in a kind of lofty language that treats the states as though they were people with feelings.  Justice Kennedy’s nation is one in which Congress and the executive must defer to the power of states in a variety of spheres, intruding only when necessary and the means proportional (Justice Kennedy might say something similar to this in the Arizona voting case, about Congress’s ability to specify that states must accept what the federal government thinks is enough to prove an individual’s citizenship entitling her to vote).

The question will be whether, if we get the summer of Federalism, the other Justices will want to weigh in on the merits of issues that are likely to return to the Court at a later date. A Kennedy opinion holding section 3 of DOMA a violation of states’ rights might be joined by four other Justices in full or in result, with a concurring opinion reaching the merits of the right to gay marriage. Justice Ginsburg and others may want to come out against “skim milk” marriages. The same may happen in the Prop. 8 case.  Even if the Court dismisses on standing grounds, or especially if the four liberal Justices and Kennedy join to dismiss the case as improvidently granted, it could well fall to Justice Scalia, Alito, or Thomas to write that fiery dissent extolling traditional marriage and rejecting a living Constitution and the evolution of norms of constitutional conduct.

In the Voting Rights Act case, Justice Kennedy would be joined by the conservatives in striking down the Act, and I am confident of a fiery dissent from the four liberal members.  The big question will be how far a VRA strike would go: would it open up the door to cases challenging section 2 of the Act, or section 203 (the language provisions), or portions of the Civil Rights Act?  Liberal justices may want to lay down a marker. Some of these questions might depend upon what the Court does in the affirmative action case, but the grant of cert  in the Michigan case suggests these issues are still going to kick around the Court for a while before the end of affirmative action.  If the Court rejects the University of Texas plan on race grounds, it would be the one major case where a constitutional right (here, the white applicant’s right to equal protection) which would trump the state’s right to decide on admission’s policy.

In the end, we’ll all be living in Justice Kennedy’s world. As we already are.

I have written this piece for Reuters Opinion.  It begins:

Will Justice Anthony Kennedy’s support for a constitutional right to gay marriage doom the constitutionality of affirmative action and a key provision of the Voting Rights Act?  To answer this question, legal scholars need to know less about constitutional law and more about human psychology.

Consider  last year, when Supreme Court Chief Justice John Roberts, for example, surprisingly sided with the court’s four liberal members in upholding President Barack Obama’s healthcare law against constitutional challenge. It was a stunning choice for the conservative jurist. The reaction of Nate Persily, a leading U.S. election law scholar, was: “There goes the Voting Rights Act.”

At first, the connection between the two cases may seem tenuous. They don’t involve the same issues. The healthcare case was based on Congress’s power to regulate commerce and to tax. In Shelby County v. Holder, heard last month and expected to be decided in June, the court is considering whether Congress’s power to enforce equal rights, especially in voting, includes the power to continue federal oversight of elections in certain states that have a history of racial discrimination.

But Persily’s observation seems correct, and it illustrates how Supreme Court watchers often use amateur psychoanalysis of the justices. For example, a chief justice, feeling constrained by public opinion or concerned about the court’s legacy, may give in on one case in order to gain more political capital to spend on another controversial case.

That’s the suggestion in this New Yorker piece.

Wow:

The grilled shrimp appetizer had just arrived at the 128th annual press-pols Gridiron dinner Saturday night when NAACP President Benjamin Jealous fell into conversation with a fellow white-tied dinner guest about the Supreme Court’s recent argument over the Voting Rights Act.

The distinguished-looking gentleman told Jealous he thought the NAACP Legal Defense Fund lawyer, Debo P. Adegbile, had done a fine job arguing that the law needed to be continued.

Sure, but what happened to the solicitor general? Jealous wondered aloud, he was just awful.

Well, I am the solicitor general, Donald Verrilli Jr. replied.

Linc Caplan uses the incident to defend Verilli, and to argue that Justice Kennedy might like his “as applied” argument in the Shelby County case

David Cole on Shelby County.

At this link.  Tomorrow, you should be able to use the same link to find event video.

Extensive posting from Armand Derfner.

David Gans blogs.

The Mirage of Racism: “Under the VRA as it currently stands, we have too much federal intervention too soon, for too long, and for too little cause. The Supreme Court should strike the VRA down and let Congress return to the drawing board for something better.”

Details here on what looks like a great event.

“I think by the time the debate is concluded, there will be a very bipartisan consensus that if there is an amendment needed to Section 5 to keep it viable, the votes will be overwhelming.”

—Representative Jim Sensenbrenner, on what will happen if the Court strikes down the coverage formula for Section 5 of the Voting Rights Act in the Shelby County case.

Texas Redistricting analyzes.

The Nation:

On Sunday, March 3, Representative John Lewis locked arms with Luci Baines Johnson and Vice President Joe Biden and marched across the Edmund Pettus Bridge here. Forty-eight years earlier, on “Bloody Sunday,” Lewis was badly beaten by Alabama state troopers at the foot of the bridge while attempting to march from Selma to Montgomery in support of voting rights. Eight days later, Luci’s father introduced the Voting Rights Act before a joint session of Congress. “When Lyndon Johnson signed the Voting Rights Act on August 6, 1965,” Lewis said, “he helped free and liberate all of us.”

Amy Howe: “That leaves, as it so often does, the vote of Justice Kennedy.  And although at least one of his questions has been interpreted as signaling support for the law, for the most part his comments and questions left the overwhelming impression that he too would be inclined to rule in favor of Shelby County.”

Carvin, Hebert, Thernstrom and Lindenbaum discuss Shelby County at GW Law, moderated by Spencer Overton.  Unfortunately closed to the press.

Her Opinionator column concludes:

The Roberts court stands on the brink of making an error of historic proportions. A needless and reckless aggrandizement of power in one case to satisfy the current majority’s agenda will erode the court’s authority over time.

But there was no sign from the majority last week of an appetite for stepping back this time, as the court did in its last confrontation with Section 5 four years ago. Justice Scalia – he who flaunts his refusal to join any portion of any opinion that cites legislative history – returned repeatedly to his view that manifest Congressional support for the Voting Rights Act was somehow illegitimate, not to be taken at face value. The problem was, he said, that members of Congress “are going to lose votes if they do not re-enact the Voting Rights Act.”

Justice Scalia, that’s called democracy.

Or it was.

Ilya Shapiro weighs in on the Chief Justice’s remarks in the Shelby County case, concluding: “To be clear, I’m not suggesting that Massachusetts is a hotbed of racism and should be subject to Section 5.  Instead, I’m saying that Mississippi – the whole broader South – has changed, obviating the need, and therefore constitutional justification, for Section 5.”

Jon Stewart for his part weighed in on Northern racism: “Yeah, we’ve been to Boston.”

Here.

The following is a guest post from Chris Elmendorf and Doug Spencer:

Are the Covered States “More Racist” than Other States?  

Christopher S. Elmendorf

Douglas M. Spencer

 During oral argument last week in Shelby County v. Holder, the constitutional challenge to Section 5 of the Voting Rights Act, Chief Justice Roberts asked, “[I]s it the government’s submission that the citizens in the South are more racist than citizens in the North?”  Solicitor General Verrilli responded, “It is not, and I do not know the answer to that . . . .”

This post offers a preliminary answer to the Chief Justice’s question, using recent data.  Our initial results suggest that the coverage formula of Section 5 does a remarkably good job of differentiating states according to the racial attitudes of their nonblack citizens.

There are essentially three schools of thought about how best to measure racial prejudice using survey questions.  Some researchers favor explicit measures of prejudice (“old-fashioned racism” or stereotyping), based on agreement with statements like “blacks are less intelligent than whites” and “blacks are lazy.”  Others favor symbolic measures of prejudice or “racial resentment,” based on questions about affirmative action and whether blacks have gotten “more than they deserve.”  Still others favor measures of implicit or subconscious bias.  For the results reported here we use explicit stereotyping, as it remains disputed whether racial resentment measures capture prejudice as opposed to conservatism, and it is uncertain whether implicit bias predicts political behavior.

We created a binary measure of stereotyping that roughly captures whether a person is more prejudiced toward blacks than is typical of nonblack Americans.  Our data source is the 2008 National Annenberg Election Survey (NAES), which asked non-black respondents to rate their own racial group and blacks in terms of intelligence, trustworthiness, and work effort, on a scale of 0-100.  On average respondents ranked their own group about 15 points above blacks on each trait.  We coded respondents as holding “prejudiced” views with respect to blacks on a particular trait if the difference between their rating of their own racial group and their rating of blacks exceeded the national mean difference for the trait.  To create an overall measure of prejudice for each respondent, we summed the number of traits on which the respondent was more prejudiced than the national mean.  Finally, we converted this sum into a binary variable, coding as “prejudiced overall” those respondents who exceeded the national mean with respect to at least two of the three traits.[1]

To be clear, a respondent whom we have coded as “not prejudiced overall” may well be quite prejudiced.  But the Chief Justice’s question—whether “citizens in the South are more racist than citizens in the North”—is a question about relative prejudice, and this is what we are trying to capture.

We provide two estimates of the proportion of adult, nonblack residents in each state who are “prejudiced overall.”  The first is based on simple disaggregation of the large NAES dataset (N=19,325).  This method should work pretty well for the largest states but may yield unreliable estimates for smaller states, which contribute relatively few respondents to the NAES sample.  For the second estimate we use multilevel regression with post-stratification (MRP), a recently developed statistical technique that has been shown to yield remarkably accurate estimates of state-level public opinion.  We model prejudice as a function of individual-level covariates (sex, race, age, and education) and a set of state-level predictors (black population, percent of blacks in poverty, segregation, and income inequality).

Using either technique we find a strong positive correlation between Section 5 “covered status” and anti-black prejudice, but with MRP the correlation is truly stunning:

The MRP model suggests that the six fully covered states in the South are, by our measure, six of the seven most prejudiced in the nation.  The two fully covered states that rank lower on the list, Arizona and Alaska, are presumably covered for reasons other than discrimination against blacks (anti-Latino discrimination in Arizona, and anti-Native discrimination in Alaska).

We wish to emphasize that these are preliminary results only.  Though our findings are not entirely unexpected, other ways of aggregating the NAES prejudice questions, or of modeling responses, may yield different rankings of the states (to say nothing of other ways of measuring prejudice).  We will present additional results at the Midwest Political Science Association conference in April.

Suffice it to say for now that the coverage formula seems defensible under the standard implicit in the Chief Justice’s questioning.  Or, to borrow a metaphor from Judge Williams of the D.C. Circuit, Congress appears to have “hit the bull’s eye throwing a dart backwards over its shoulder.”

Elmendorf is Professor of Law at UC Davis.  Spencer is a doctoral student in Jurisprudence and Social Policy at UC Berkeley.  Elmendorf contributed to an amicus brief on behalf of the respondents in Shelby County v. Holder.

Transcript.

Really? with Seth and Kevin.  “The South is still the Michael Jordan of racism.”  VRA is a backup defender.

“I don’t think you get to say what’s outdated when you’re a small council of old people in robes who can’t be fired.”

via Amanda Becker and Kevin Collins.

Hebert and Derfner follow up on a Shelby County question.

You can listen (and read the tea leaves) here.

Myrna Perez blogs.

On the Daily Show. Watch:

Bill Press on Shelby County.

Now by Ellen Katz and Abby Thernstrom.

Important blog post:

We were both in the courtroom yesterday for the oral argument in the Shelby County, Alabama, voting rights case, and were particularly struck by one aspect of the arguments:  the strange persistence of the myth that Section 2 of the Voting Rights Act is an adequate substitute for Section 5.  The working theory seems to be that if Section 5 is declared unconstitutional or the coverage formula in Section 4 is struck down, there’s always Section 2 of the Act.  We call that a theory because there is no basis in reality for believing it.

Solicitor General Don Verrilli told the Justices that Section 2 cases are not an adequate substitute for Section 5, emphasizing that the voter has to bear the burden of proof and other heavy burdens, including cost.  Attorney Debo Adegbile followed that up with the point that Sections 2 and 5 work in tandem, with Section 5 often needed to insure that gains won in Section 2 cases are protected.

From our own perspective as two lawyers with more than a hundred Section 2 cases in our combined nearly 90 years of practice (forty years plus each), we have some points we think are important to consider as the Justices decide this case.  We would also note the importance of Supreme Court cases like United States v. Raines.

One of the best reporters covering how Shelby County is playing in covered jurisdictions is Gannett’s Mary Orndorff Troyan.  Gannett stories often don’t come up in my news searches for some reason, so here’s some catchup on three recent stories:

Voting Rights Act debated at U.S. Supreme Court: Shelby County asks if the law is still needed

Record number of exemptions complicates voting rights case

S.C. among states seeking to end review of their election procedures