Two weeks ago several US congressmen put forward a bill to implement a modified version of Section 4 of the Voting Rights Act. The bill is an explicit response to last year’s supreme court ruling in Shelby County v. Holder striking down Section 4 of the Voting Rights Act as unconstitutional. Given the controversy and legal questions that will certainly follow this new bill, it is important to look back at the reasons that the original section 4 was struck down in Shelby.
In 1965 congress passed the Voting Rights Act (VRA). The VRA was designed to curb the rampant voter discrimination that was prevalent in certain parts of the country at the time. It was passed under the authority of the 15th Amendment, which guarantees each person the right to vote, regardless of race, and grants congress the power to ensure that guarantee through “appropriate legislation” –i.e. legislation that is “congruent and proportional” to the problem at hand.
At the time, voter intimidation through physical threats was still common, numerous states had adopted pre-textual “literacy tests” and other schemes to exclude blacks from the polls, and racial gerrymandering was all too often used to suppress black representation in government. As a result, black voter turnout, registration, and representation fell well below that of the white population. Given this background, the VRA was a congruent and proportional response to the problems of the time.
Much of the VRA was, and remains, uncontroversial. For example Section 2 of the VRA provides a mechanism to bring suit against a state if that state adopts policies designed to suppress voting based on race. The Court’s ruling in Shelby did not affect these provisions. Instead, the Court’s ruling was limited to the long controversial Section 4.
Section 4 singles out certain jurisdictions (e.g. states and counties) for special burdens under the VRA. In particular, Section 5 of the VRA eliminates all autonomy in election procedure decisions for jurisdictions that are singled out by Section 4. Section 4’s formula for determining what jurisdictions are covered is based, in part, on evidence of discrimination which occurred in 1964. In other words, a state with a history of discrimination in 1964 would still be singled out for burdens in 2014 even if its current practices for the past fifty years were non-discriminatory. Meanwhile, a neighboring state which had no history of discrimination in 1964, would not be covered by Section 4 even if its subsequent history of discrimination over the last 50 years was worse than that of covered states.
It is this irrational discrimination between jurisdictions that the Court found unconstitutional in Shelby. Under the Constitution, the federal government has an obligation to treat states equally. Thus, on its face Section 4 raises serious constitutional concerns. In spite of this tension, Section 4 was initially deemed constitutional as a “congruent and proportional” response to the problems of discrimination in 1964.
Today it is unquestionably true that current incidents of voter discrimination do not mirror the patterns of discrimination of 1964 in either scope or geographic location. By 2009, African-Americans occupied 628 seats in state legislatures nationwide. In some states originally covered by Section 4, like Mississippi, Alabama, and Georgia, nearly one-fourth of all state legislative seats were occupied by African-Americans. That number is comparable to the percentage of African-Americans in those states.
Yet, when Congress re-approved the VRA in 2006 it simply rubber stamped the same formula for Section 4 coverage that was based on data from 1964. In Shelby, the Court found that such arbitrary legislation is not protected by the 15th Amendment’s exception for “appropriate legislation” and was therefore unconstitutional.
Notably, the Court expressly left the door open for Congress to craft a new Section 4 coverage formula based on current data. The bill recently introduced in Congress is a direct response to this invitation. Yet early pushback against the bill is indicative of why any new formula may be constitutionally problematic. As one commentator already pointed out, congressmen from the various states have a strong interest in insuring that their state is not covered by any new Section 4 formula. For any bill to pass it will need support from at least some of these state’s representatives. If the formula includes too many states, it will not pass, if it includes too few it may not accomplish its purpose. And therein lies the problem. Any bill that passes will inevitably have more to do with interstate politics and which states have influence than it does with curbing discrimination. And that is the very reason that the Constitution forbids the federal government from playing favorites with the states in the first place.
If you are interested in litigating a similar matter, contact the Sacramento and Los Angeles appeals lawyers at Kassouni Law. The appellate team will be happy to discuss, research the merits of your case, and litigate on your behalf. Contact the appeal lawyers by calling (877) 770-7379.
