The Independent View: Another Opinion on Shelby County v. Holder

Yesterday, the Supreme Court held oral arguments on the constitutionality of two key sections of the Voting Rights Act of 1965, in the case of Shelby County v. Holder (docket 12-96). Shelby County urged the Court to strike down those provisions and was argued by Bert W. Rein of the Washington, D.C., law firm of Wiley Rein LLP. Dividing time in defense of the law was the U.S. Solicitor General, Donald B. Verrilli, Jr. and Debo P. Adegbile, an attorney with the NAACP Legal Defense Fund in New York City, representing individual voters and other private defenders of the law.

I just listened to the oral arguments, CLICK HERE to listen on C-SPAN.

During the session, the question of making all of the states part of Section 5 (preclearance) was asked a few times. So here is my answer.

Every ten years we have the Census, and then perform redistricting. We should also use this process to do a preclearance test for all the states. We basically do an opt-in and then evaluate the last ten years and bailout those states that pass.

States and districts could still ask for a bailout during the 10 year window using the following criteria:

Section 4 provides that a jurisdiction may terminate or "bailout" from coverage under the Act's special provisions. The amendment, which took effect on August 5, 1984, establishes an "objective" measure to determine whether the jurisdiction is entitled to "bailout".

A jurisdiction seeking to "bailout" must seek a declaratory judgment from a three-judge panel in the United States District Court for the District of Columbia. The successful "bailout" applicant must demonstrate that during the past ten years:

•No test or device has been used within the jurisdiction for the purpose or with the effect of voting discrimination

•All changes affecting voting have been reviewed under Section 5 prior to their implementation

•No change affecting voting has been the subject of an objection by the Attorney General or the denial of a Section 5 declaratory judgment from the District of Columbia district court

•There have been no adverse judgments in lawsuits alleging voting discrimination

•There have been no consent decrees or agreements that resulted in the abandonment of a discriminatory voting practice

•There are no pending lawsuits that allege voting discrimination

•Federal examiners have not been assigned

•There have been no violations of the Constitution or federal, state or local laws with respect to voting discrimination unless the jurisdiction establishes that any such violations were trivial, were promptly corrected, and were not repeated

• The jurisdiction must have eliminated those voting procedures and methods of elections that inhibit or dilute equal access to the electoral process. It also must demonstrate that it has made constructive efforts to eliminate intimidation and harassment of persons seeking to register and vote and expand opportunities for voter participation, such as opportunities for registration and voting, and to appoint minority officials throughout the jurisdiction and at all levels of the stages of the electoral process. The jurisdiction must also present evidence of minority electoral participation.

• These requirements apply to all governmental units within the geographical boundaries of the jurisdiction. Thus, if a county is seeking to "bailout", it must establish each criteria for every city, town, school district, or other entity within its boundaries.

The Attorney General is also authorized to consent to an entry of judgment granting the "bailout" if the Attorney General concludes after investigation that the jurisdiction has complied with all of these requirements.

Prior to actually filing a petition with the District of Columbia court, any jurisdiction interested in seeking "bailout" may submit a request to the Attorney General with supporting documentation and evidence. Upon receipt, the Voting Section of the Civil Rights Division will undertake an investigation to determine whether the Attorney General would be willing to enter into a consent decree or would oppose the "bailout" petition. If the Attorney General determines that consent to an entry of judgment is proper, the Voting Section will work with the jurisdiction to agree on the terms of the consent decree to be filed with the "bailout" petition when the litigation is actually filed.

During the arguments some of the Justices' used the fact that some northeast states had worse minority registration then the south. But that misses the entire problem. I might be registered but it is the ability to vote that also must be protected.