Shelby County v. Holder Argued: February 27, 2013 Decided: June 25, 2013

Transcription

1 Shelby County v. Holder Argued: February 27, 2013 Decided: June 25, 2013 BACKGROUND Following the Civil War, the 13 th Amendment (1865) made slavery illegal in the United States. Nevertheless, governments of the Southern States sought to return African Americans to a state of slavery in all but name. In response, two additional amendments to the Constitution were ratified. The 14 th Amendment (1868) defined and guaranteed the rights of citizens of the United States and said that states, not just the national government, must provide due process of law and equal protection of the laws to all people. The 15 th Amendment (1870) said that no state can stop a person from voting because of that person s race or color. Newly freed African Americans created their own churches, started their own schools and businesses, and purchased land. They also voted and held public office. By 1870, African Americans were represented in state legislatures across the South, and 22 African American representatives had been sent to Congress. After federal troops withdrew from the South, however, Southern state and local governments developed legal strategies to block Black voters. They introduced literacy tests and the poll (head) tax on anyone who wanted to vote. They passed grandfather clauses that permitted any white who was allowed to vote before the Civil War or their descendants to vote without paying the poll tax or passing the literacy tests. They used white only primaries to ensure that no African American candidates were available for election. As a result, African American participation in elections plummeted, and Black officeholders disappeared. These practices were used into the 1960s. The Voting Rights Act (VRA) of 1965 was designed to enforce the 15 th Amendment and to address issues that plagued minority voters. It outlawed literacy tests, the poll tax, and other barriers to voting. The Voting Rights Act was sparked by voter registration efforts in Selma, Alabama and was a capstone of the Civil Rights Movement. Originally only a temporary measure, the VRA was reauthorized by Congress in 1970, 1975, 1982, and When Congress passed the VRA, it determined that discrimination in voting was worse in certain areas of the country. Section 4(b) of the VRA contains a formula that determines which states, or subdivisions of states, are covered by special provisions of the Act. Jurisdictions are covered if they used a "test or device" for voting and if less than half of voting age residents voted in the 1964, 1968, or 1972 presidential elections. Coverage is determined by the U.S. Attorney General and the director of the U.S. Census, and is not reviewable by the judiciary. These criteria were later updated in an effort to protect the rights of minority language groups as well.

2 Section 5 of the VRA applies to only covered areas, as identified by Section 4(b). Section 5 outlines a procedure called preclearance. Once covered by Section 5, any change involving voting must be submitted to the Attorney General or the U.S. District Court for the District of Columbia. The area must prove that the proposed voting change does not deny or abridge the right to vote on account of race, color, or membership in a language minority group. If the District Court denies the requested judgment or if the Attorney General objects to the change, then it remains invalid. FACTS In 2010, Shelby County, Alabama brought a facial challenge against Sections 4(b) and 5 of the Voting Rights Act. Shelby County claimed that the preclearance requirement imposed too heavy of a burden on individual states. Shelby County also claimed that the coverage formula was unfair and outdated. The U.S. District Court for the District of Columbia granted summary judgment against Shelby County. That is, the court determined there was no need for a trial because the facts were not disputed and the Attorney General was entitled to judgment as a matter of law. Shelby County appealed to the U.S. Court of Appeals for the D.C. Circuit. A three-judge panel affirmed the district court s decision in a 2-1 judgment. The D.C. Circuit upheld Sections 4(b) and 5. The D.C. Circuit concluded that Section 5 was still necessary. The D.C. Circuit also held that Section 4 continued to single out the jurisdictions in which discrimination is concentrated. Judge Williams dissented because he thought the coverage formula was irrational and unconstitutional. Shelby County appealed, and the Supreme Court of the United States granted certiorari that is, it agreed to review the case. The question before the Court was whether Section 4 s coverage formula and Section 5 s preclearance requirement of the Voting Rights Act was constitutional. ISSUE Did Congress s decision in 2006 to reauthorize Section 5 of the Voting Rights Act under the preexisting coverage formula of Section 4(b) of the Voting Rights Act exceed its authority under the 14 th and 15 th Amendments and thus violate the Tenth Amendment and Article IV of the United States Constitution?

3 CONSTITUTIONAL FOUNDATIONS Article IV The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States. Tenth Amendment The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people. Fourteenth Amendment Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. Section 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article. Fifteenth Amendment Section 1. The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any state on account of race, color, or previous condition of servitude. Section 2. The Congress shall have power to enforce this article by appropriate legislation. PRECEDENTS South Carolina v. Katzenbach (1966) South Carolina invoked the U.S. Supreme Court s original jurisdiction (in this case, because a State is a party) in its attempt to declare parts of the VRA unconstitutional. The Court found the challenged sections to be a valid exercise of Congress s power to enforce the 15 th Amendment. The Court recognized that case-by-case litigation against voting discrimination was not enough. Even when these cases were successful, they were often followed by a shift in discriminatory devices, defiance or evasion of court orders. This case established the standard which the Court holds Congress to. The Court determined that Congress may use any rational means to [effect] the constitutional prohibition of racial voting discrimination. This leaves Congress free to use whatever means are appropriate to carry out the objects of the Constitution. The Court found that Congress was well within its powers to enact these measures.

4 City of Rome v. United States (1980) The City of Rome is in Georgia, a state covered by Section 5 of the VRA. When the City of Rome made changes in its electoral system, the U.S. Attorney General objected. The City sought relief from the VRA. A three-judge court refused to allow the City to bailout of Section 5 s preclearance and granted summary judgment. The City appealed to the U.S. Supreme Court. The Court held the Act s ban on electoral changes that are discriminatory in effect is a proper way to enforce the 15 th Amendment, even if the Amendment only prohibits intentional discrimination. The Court also denied that Section 5 violated the principles of federalism. The Court explained that the 14 th and 15 th Amendments were specifically designed as an expansion of federal authority and an intrusion on state sovereignty. Northwest Austin Municipal Utility District No. One v. Holder (2009) Northwest Austin Municipal Utility District Number One (NAMUDNO) in Texas sought a declaratory judgment that would exempt it from Section 5 s preclearance requirement. NAMUDNO also argued that Section 5 was unconstitutional. The U.S. District Court denied both claims, holding that NAMUDNO was not eligible for bailout because it does not register its own voters. The District Court also held the 2006 reauthorization of the VRA to be valid. NAMUDNO appealed to the U.S. Supreme Court. The Court held that political subdivisions such as NAMUDNO were eligible to seek bailout, and declined to rule on the constitutionality of Section 5. However, the Court mentioned that the VRA s preclearance requirements and its coverage formula raise serious constitutional questions.

5 Arguments for Shelby County (Petitioners) The 15 th Amendment limits but does not usurp the States power to regulate elections. Preclearance s encroachment on state sovereignty is significant and undeniable, according to U.S. v. Sheffield (1978). The preclearance burden is not justified without extreme situations. Things in the South have changed. Congress did not demonstrate that preclearance is still appropriate. Speculation that the Section 5 preclearance requirement is a strong deterrent is not enough to justify its harsh burden. Section 2 is an appropriate and sufficient remedy for today s issues. In Reno v. Bossier II (2000), the Court stated, we have never held that vote dilution violates the Fifteenth Amendment. Since vote dilution is the main focus of the reauthorization, Congress has overstepped its 15 th Amendment authority. The only type of conduct that Congress can remedy is governmental discrimination, Terry v. Adams (1953). Congress said that racially polarized voting was the strongest evidence of the need to extend Section 5. However, that is not discrimination by the government. The coverage formula differentiates between states, which violates the tradition of equal sovereignty among States. Even if preclearance was still appropriate for some places, the coverage formula is not an appropriate way to identify them. Congress justified Section 5 on second-generation barriers, which involve the weight of the vote once it has been cast. However, coverage depends on registration and turnout data, which relate to actual voting prevention. There is a serious mismatch between the formula s triggers for coverage and the purported constitutional basis for reauthorization of preclearance. The second generation barriers are not concentrated in the jurisdictions singled out for coverage, according to NAMUDNO v. Holder (2009).

6 Arguments for Holder (Respondents) The reauthorization of the Voting Rights Act and the extension of Sections 4(b) and 5 enforce the 14 th and 15 th Amendments. As stated in Katzenbach v. Morgan (1966), the appropriate legislation clause is a positive grant of legislative power authorizing Congress to exercise its discretion in determining what is needed to enforce the 14 th Amendment. Congress decided to extend Section 4(b) s coverage formula and Section 5 s preclearance requirement by an overwhelming majority in the House of Representatives and by unanimous vote in the Senate. Congress, the people s branch, fully supports the extension of these measures to combat continuing disparities. Congress determined that Section 5 s preclearance requirement is justified by current needs. The legislative record proves that voting discrimination is an ongoing problem in the covered areas. Congress held 21 hearings, heard from over 90 witnesses, and compiled a record of over 15,000 pages of evidence. Therefore, the Court should exercise judicial deference and allow Congress to fulfill its duty. Section 2 is an inadequate remedy for discriminatory voting practices. From , there were hundreds of objections from the Department of Justice (DOJ) to discriminatory voting changes. There were more information requests from the DOJ that resulted in the withdrawal or modification of over 800 potentially discriminatory voting changes. There is also evidence that Section 5 has a powerful deterrent effect. The validity of the Voting Rights Act is not undermined by advances in voting equality since Striking down an Act because it is effective is like throwing away your umbrella in a rainstorm because you are not getting wet. The bailout and bail-in provisions of the Voting Rights Act remedy the over- and undercoverage of the formula. Almost 200 jurisdictions have successfully bailed out of the preclearance requirement, and DOJ has consented to every bailout application filed by an eligible jurisdiction since the current procedure became effective in Precedent indicates that Section 5 should withstand constitutional challenges. After Reno v. Bossier II (2000), Congress changed the definition to include any discriminatory

7 purpose. The Court has consistently upheld the preclearance requirement as a valid exercise of Congressional authority. The question before the Court is not whether Congress has chosen the best way to enforce the 15 th Amendment, but whether Congress has chosen a reasonable and appropriate way to achieve a legitimate end. DECISIONS (5-4) In a 5-4 decision, the Supreme Court reversed the Circuit Court s decision and held that Section 4(b) s coverage formula was unconstitutional. Chief Justice Roberts wrote the majority opinion and was joined by Justices Scalia, Kennedy, Thomas, and Alito. Although the majority found Section 4(b) s formula to be unconstitutional, the Court declined to rule on the constitutionality of Section 5. The majority indicated that Congress was free to draft a new coverage formula to decide which areas would be covered by Section 5. However, until a new formula is drafted, Section 5 is rendered dormant. Justice Thomas also filed a concurring opinion. Justice Ginsburg filed a dissenting opinion and was joined by Justices Breyer, Sotomayor, and Kagan. MAJORITY Chief Justice Roberts wrote for the Court. The Court held that the coverage formula violates the principle of equal sovereignty among the States by subjecting states to different conditions in regards to voting procedures. The Court argued that the VRA was enacted in a different context and that things have changed dramatically. The Court held that the desperate conditions warranting the VRA justified breaching State powers. However, the Court concluded that without these extreme conditions, Section 4(b) s formula is unconstitutional. The Court also determined that the formula did not meet the criteria of NAMUDNO, which stated that current burdens must be justified by current needs. The Court concluded that Coverage today is based on decades-old data and eradicated practices. The Court noted that Congress did not update the coverage formula, and said that was unacceptable. The Court rejected the government s argument that claimed the formula was valid because it effectively targeted the states whose conditions mandated coverage without calling them out by name. The Court held that argument was not convincing, and said that it does not reflect current conditions. The majority insists that history did not end in 1965.

8 The Court concluded by reversing the judgment of the Court of Appeals and claiming that Congress s failure to act left the justices with no choice but to declare Section 4(b) unconstitutional. CONCURRENCE Justice Thomas wrote a concurring opinion, in order to explain that he would find Section 5 of the Voting Rights Act unconstitutional as well. He agreed with the opinion of the Court but stated that he would have taken it a step further. DISSENT In dissent, Justice Ginsburg raised several issues. Ginsburg pointed out that the 14 th and 15 th Amendments delegated broad powers to Congress for enforcement. The dissent argued that the Court should defer to Congress s judgment in this case. The dissent pointed out the extensive evidence that Congress gathered when reauthorizing the VRA. Ginsburg also denied that voting discrimination has ended and listed several examples of discrimination that persist in covered jurisdictions. The dissent also rejected the Court s application of the principle of equal sovereignty among the states. Ginsburg pointed out that this applies only to the terms upon which States are admitted to the Union, and not to the remedies for local evils which have subsequently appeared. Using the principle of equal sovereignty to justify overturning congressional action is untenable according to Katzenbach. Finally, Justice Ginsburg questioned the notion that the success of the VRA translates to its expiration. She compared throwing out preclearance when it has worked to throwing away your umbrella in a rainstorm because you are not getting wet. She voiced her concern that discriminatory practices will return if Congress does not draft a new formula. The Court appears to believe that the VRA s success in eliminating the specific devices extant in 1965 means that preclearance is no longer needed.... The same assumption that the problem could be solved when particular methods of voting discrimination are identified and eliminated was indulged and proved wrong repeatedly prior to the VRA s enactment.... [H]istory repeats itself.

9 Glossary Affirm: The decision of a superior court to uphold, ratify, or otherwise agree with the decision reached by a lower court. Certiorari: Meaning in Latin to be made certain, a writ of certiorari is issued when a higher court orders a lower court to deliver its record in a case so the higher court may review it. Concurrence/Concurring Opinion: An opinion written separately from the majority. A concurrence agrees with the result of the decision but reached that decision for different reasons. Dissent/ Dissenting Opinion: An opinion written separately from that majority and does not agree with the decision for the case. Facial Challenge: A challenge to a statute made by a plaintiff who is alleging that the legislation is always unconstitutional, and therefore void. If a facial challenge is successful, the court will strike down the law entirely. This is contrasted with an as-applied challenge, which just claims that the specific application of the law in question is unconstitutional. The U.S. Supreme Court has determined that, for a facial challenge to succeed, there must be no set of circumstances under which the measure is constitutional. Judicial Deference: The reluctance of the judiciary being unwilling to get overly involved in legal areas that are rightfully in Congress s domain. Original Jurisdiction: A court s power to hear and decide a case before another court may review the case. Whatever court has original jurisdiction should be the court to first hear a case. Petitioner: A person who pleads with a government institution for a legal remedy or a redress of grievances. Preclearance Requirement: The administrative procedure required by Section 5 of the Voting Rights Act. States and jurisdictions covered under the Act must submit all changes affecting voting for preapproval by the Attorney General or the United States District Court for the District of Columbia. The county must prove that the proposed voting change does not deny or abridge the right to vote on account of race, color, or membership in a language minority group.

10 Remand: To send back. An appellate court may send a case back to the trial court for further action. Respondents: The party who must answer a petition for a court order or writ; the defendant. Reversal: The decision of a superior court to overturn, or reverse, the decision reached by the lower court. The lower court s decision is then annulled. Summary Judgment: A way to decide a case without a trial. For summary judgment to be granted, there must be no genuine disputes about the facts of the case, and the person petitioning for summary judgment must be entitled to judgment as a matter of law. Vacate the Judgment: To make a prior legal judgment void. Usually this is an appellate court overturning or reversing the judgment of a lower court. Vote Dilution: The nullification of minority group votes by a majority voting as a block.

11 Sources Court Cases City of Boerne v. Flores, 521 U.S. 507 (1997). City of Rome v. United States, 446 U.S. 156 (1980). Georgia v. United States, 411 U.S. 526 (1973). Lopez et al v. Monterey County, California, 525 U.S. 266 (1999). Northwest Austin Municipal Utility District Number One v. Holder, 557 U.S. 193 (2009). Oregon v. Mitchell, 400 U.S. 112 (1970). Reno, Attorney General v. Bossier Parish School Board, 528 U.S. 320 (2000). Shelby County, Alabama v. Holder, 570 U.S. (2013). South Carolina v. Katzenbach, 383 U.S. 301 (1966). Terry v. Adams, 345 U.S. 461 (1953). United States v. Board of Commissioners of Sheffield, Alabama, et al, 435 U.S. 110 (1978). Other Sources Amar-Dolan, Jeremy, and Zachary Zemlin. Shelby County v. Holder. From Cornell University Law School Legal Information Institute. Accessed 1 July

12 Brief for the Federal Respondent, Shelby County, Alabama v. Holder, 570 U.S. (2013). Brief of Gabriel Chin, Atiba Ellis, Christopher S. Elmendorf, Janai S. Nelson, Bertrall Ross, Daniel Tokaji, and Franita Tolson as Amicus Curiae in Support of Respondents, Shelby County, Alabama v. Holder, 570 U.S. (2013). Brief of Justice and Freedom Fund as Amicus Curiae in Support of Petitioner, Shelby County, Alabama v. Holder, 570 U.S. (2013). Brief for Petitioner, Shelby County, Alabama v. Holder, 570 U.S. (2013). Brief for Respondent-Intervenors Bobby Pierson, Willie Goldsmith, Sr., Mary Paxton-Lee, Kenneth Dukes, and Alabama State Conference of the National Association for the Advancement of Colored People, Shelby County, Alabama v. Holder, 570 U.S. (2013). Chin, Gabriel J. Do Civil Rights Laws Become Invalid If They Work? From the American Constitution Society Blog. 26 February Drum, Kevin. Compare and Contrast: Laws That Protect White Voting vs. Laws That Protect Black Voting. In MotherJones, 25 June Ellis, Atiba R. Mission Accomplished? Post-Racialism and Shelby County. From the American Constitution Society Blog. 25 February Fishkin, Joseph. The Dignity of the South. 123 Yale Law Journal Online 175 (2013).

13 Katz, Ellen D. A Cure Worse than the Disease? 123 Yale Law Journal Online 117 (2013). Levitt, Justin. Section 5 as Simulacrum, 123 Yale Law Journal Online 151 (2013). Northwest Austin Municipal v. Holder. From Oyez: U.S. Supreme Court Media, Chicago-Kent College of Law. Pilon, Roger. Facial v. As-Applied Challenges: Does It Matter? in Cato Supreme Court Review, 8 ( ). Pitts, Michael. Shelby County v. Holder: Reasons to Believe. From SCOTUSblog. 11 February Posner, Richard A. The Supreme Court s Conservatives Imagined Their Way to Striking Down Part of the Voting Rights Act. ourt_2013/the_supreme_court_and_the_voting_rights_act_striking_down_the_law_is_all. html Schwinn, Steven D. Federalism and the Voting Rights Act. From the American Constitution Society Blog. 26 February Schwinn, Steven D. Justice Ginsburg s Dissent in Shelby County. From The Constitutional Law Prof Blog. Section 5 of the Voting Rights Act, from The United States Department of Justice. Transcript of the Oral Argument in the Supreme Court of the United States, Shelby County, Alabama v. Holder, 570 U.S. (2013). Transcript of the Voting Rights Act of 1965, courtesy of the Avalon Project at Yale Law School. U.S. National Archives & Records Administration.

14 Was John Roberts Right in Shelby County? From Tampa Bay Times Politifact.com.