Congress Starts Discussion On New Preclearance Rules

My take on the Hill reporting on the prospect that Congress might create new rules for Section 4 of the Voting Rights Act.  The old Section 4 was suspended by the U.S. Supreme Court in June, 2013.  According to the article, there is support among some Democrats and Republicans for a bill to enact new rules for Section 4, the Preclearance rules.

Section 4 was the part of the Act that determined which parts of the nation are subject to Section 5, the Preclearance requirement.  The original act, passed in 1965, said certain parts of the country that had a bad record on voting rights must get permission from the Justice Department before changing any election laws.  Section 5 is still intact, but it has no practical usefulness if there is no rules on which parts of the country should be included in Section 5.

Both chambers are working behind the scenes to draft legislation to re-install the Voting Rights Act protections.  But in a sign of the delicate nature of the topic, Senate Democrats are taking care not to rush ahead of the House, for fear of sinking the bill's chances in the GOP-controlled lower chamber.

Senate Judiciary Chairman Patrick Leahy (D-Vt.) is working with House Democrats and a small contingent of House Republicans, notably former Judiciary Chairman Jim Sensenbrenner(Wis.), who championed the 2006 Voting Rights Act re-authorization, in an effort to defuse the partisan politics surrounding the thorny issue and forge a bill that has the best chance of becoming law.

Leahy said he'd hoped a July hearing on the Voting Rights Act, which featured testimony from Sensenbrenner and Rep. John Lewis (D-Ga.) the civil rights hero, would have propelled the debate and made the case for bipartisan support of a fix.

But the August recess, the arrival of the Syria crisis and the fight over the government shutdown have all intervened to slow the process, and the negotiators have yet to produce even a draft bill.

Sensenbrenner has been vocally supporting a legislative response to the Supreme Court's Voting Rights Act decision, which found that the decades-old formula dictating which states must get federal approval to change election laws is outdated and therefore unconstitutional.

But he could have a powerful ally in House Majority Leader Eric Cantor (R-Va.), who has signaled support for a response to the high court's ruling.  Before the August recess, Cantor had met one-on-one with Lewis to discuss the subject, and Lewis said afterwards that the Virginia Republican is "by all means" supportive of a legislative fix.  Cantor continues to meet with members of both parties in the hopes of finding a positive path forward regarding the Voting Rights Act.

Rep. Bobby Scott (D-Va.), a member of the Congressional Black Caucus and one of the leaders in the effort to rewrite the Voting Rights Act, suggested last week that a draft bill will be finalized near mid-November.  Pushing the debate to next year, Scott warned, risks entangling the debate in the tough politics of the mid-terms.

My solution is to make the Preclearance issue part of the Census and take it out of Congressional hands.  The test rules should also always include any new schemes that would put barriers to eligible voters from exercising their voice.

Every ten years all states are "Bailed-In", and they have 90 days to submit their prior 10 years voting records.  Those states that prove they have complied would then be able to "Bail-Out".  This should be done before redistricting begins.

In the meantime, we could institute this Jan. 2014 before the mid-term election process begins.

What do you think of this idea?










NYC Wins When Everyone Can Vote!

Michael H. Drucker
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Congress: Don’t forget the Elections Clause

My take on the Supreme Court’s Section 4 decision of the constitutionality of the Voting Rights Act (VRA) Preclearance formula was just a suspension of the section until a new formula is created by congress.

My formula would be, every census year, put all states on preclearance and give the states three months to file their bail-out paperwork showing their prior ten years of voting statistics and voter laws enacted. They could use January 2014 as an initial fix.

There is, however, another provision of the Constitution that authorizes many, though not all, applications of the VRA’s preclearance requirements.

Under the Elections Clause of the Constitution, Congress has broad authority to regulate congressional elections. Given that Shelby County has brought a facial challenge to Sections 4(b) and 5 of the VRA, the existence of an alternative basis for upholding some applications of the statute shouldn’t be overlooked. The Elections Clause is sufficient to prevent facial invalidation of the statute, regardless of how the Fourteenth and Fifteenth Amendment issues are resolved.

Some background on the Elections Clause may be helpful in understanding its relevance to the constitutional issue in Shelby County. The text of Article I, Section 4, Clause 1 of the Constitution provides:

The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of choosing Senators. This clause generally commits to the States the authority to determine the "times, places and manner of holding elections," which includes the preliminary stages of the election process (such as a primary election), while reserving to Congress the authority to preempt State regulations with uniform national rules.

Congress has exercised this authority to determine a uniform date for federal elections: the Tuesday following the first Monday in November.

Because Congress has not enacted any on-point regulations, States still retain the authority to regulate the dates on which other aspects of the election process are held (registration, primary elections, etc.) and where elections will be held. As for regulating the "manner" of elections, the Supreme Court has interpreted this to mean "matters like notices, registration, supervision of voting, protection of voters, prevention of fraud and corrupt practices, counting of votes, duties of inspectors and canvassers, and making and publication of election returns. The Supreme Court has held that States may not exercise their power to determine the "manner" of holding elections.

One of the most significant ways that States regulate the "manner" of elections is their power to draw election districts. Although in theory Congress could draw the district map for each State, it has not exercised this level of oversight. Congress has, however, required the States to conform to certain practices when drawing districts. States are currently required to use a single-member district scheme, whereby the State is divided into as many election districts for Representatives in the House of Representatives as the size of its representation in that body, that is to say, Representatives cannot be elected at-large from the whole State unless the State has only one Representative in the House, nor can districts elect more than 1 Representative.

Congress once imposed additional requirements that districts be composed of contiguous territory, be "compact," and have equal populations within each State. Congress has allowed those requirements to lapse, but the Supreme Court has re-imposed the population requirement on the States under the Equal Protection Clause and is suspicious of districts that do not meet the other "traditional" districting criteria of compactness and contiguity.

The Supreme Court has consistently interpreted the Elections Clause to give Congress comprehensive authority in this area.

In Smiley v. Holm (1932), the Court wrote of the Elections Clause:

-- to enact the numerous requirements as to procedure and safeguards which experience shows are necessary in order to enforce the fundamental right involved and these requirements would be nugatory if they did not have appropriate sanctions in the definition of offenses and punishments.

The Elections Clause thus gives Congress the power to make both sweeping and limited regulations governing federal elections. For example, the Court has held that the Elections Clause authorizes federal laws prohibiting voter intimidation (1884) and preempting state primary rules (1997). As Justice Scalia noted in his plurality opinion in Vieth v. Jubelirer (2004), the Elections Clause also empowers Congress to make rules regarding congressional districting. Federal appellate courts have upheld the National Voter Registration Act of 1993 (NVRA) as a permissible exercise of Congress’s authority under the Elections Clause.

Congress was cognizant of its authority under the Elections Clause when it first enacted the VRA in 1965 and when it reauthorized the statute in 2006. Justice Black’s lead opinion in Oregon v. Mitchell (1970), upholding certain provisions of the 1970 amendments to the VRA, relied on the Elections Clause.

Shelby County’s challenge focuses on the coverage formula in Section 4(b), which requires certain state and local jurisdictions to obtain preclearance under Section 5 based on registration and turnout data going back as far as 1964. The county argues that this formula accords “unequal treatment” to covered jurisdictions.

The problem with this argument is that the Supreme Court has never suggested that Congress’s Elections Clause power is subject to any such uniformity requirement. To the contrary, courts have upheld federal statutes which bind some state and local jurisdictions but not others, based on criteria set forth in the statute. One provision of federal law authorized the appointment of election supervisors by federal circuit courts in “any city or town having upwards of twenty thousand inhabitants.” And the NVRA was upheld by federal appellate courts, even though it exempts some states (specifically, those which had Election Day registration in 1994) from its requirements. In other words, the Elections Clause allows some jurisdictions to be treated differently from others based on statutorily defined criteria.

It’s interesting that the United States hasn’t relied on the Elections Clause in its defense of Sections 4(b) and 5. I don’t know why.

It’s true that a ruling based only on the Elections Clause would leave open the possibility of VRA preclearance being challenged piecemeal in the future. For example, a covered jurisdiction might challenge the statute’s application to state or local redistricting plans. At that point, the Fourteenth and Fifteenth Amendment questions would have to be addressed.

It’s possible that the Court would ultimately conclude that some applications of the statute exceed Congress’s authority as to some state or local jurisdictions. But again, the Court shouldn’t declare VRA preclearance facially unconstitutional; if it concludes that the Elections Clause authorizes some applications of the statute. For supporters of preclearance, that would be a much better outcome than having Sections 4(b) and 5 struck down on their face.

I am waiting for the Justice Department to continue its filing, like it did in Texas, to North Carolina and new states as they pass restrictive voter laws, of the bail-in provision in Section 3(c):

1. The DOJ can seek continued federal court monitoring of an offending jurisdiction,
2. A freeze on the jurisdiction's election laws,
3. A requirement that the jurisdiction get permission, or preclearance, from the court or the DOJ before it makes any changes to its election laws.

How would you use the Election Clause?










NYC Wins When Everyone Can Vote!

Michael H. Drucker
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Congress Needs to Revise the Voting Rights Act

Voting is our right as Americans, but the Supreme Court's ruling that effectively struck down the Voting Rights Act jeopardizes that right for millions of us.

In its ruling, the Supreme Court asserted that the Act’s practice of identifying states with a history of voter discrimination has "no logical relationship to the present day,” even after extremist state legislatures spent the last three years trying to mandate state IDs, gerrymander districts and cancel early voting.

We can and must reverse these setbacks by calling on Congress to revise the Voting Rights Act on a bipartisan basis.

The Voting Rights Act has ensured that the rights won by the Civil Rights movement were both protected and allowed to flourish, but this latest court ruling is a giant step backward for our country and for the democratic process.

We need quick, decisive, bipartisan action by Congress to make sure these sacred voting freedoms continue to exist. Wiping out these provisions isn't something that's happening somewhere else, it's in our own communities and affecting our neighbors, friends, family, and coworkers. Let’s ensure that everyone will be able to exercise the right to vote regardless of age, income, race, or status.

Please take a moment to sign your name to this petition. Let's remember again, as we did on the Fourth of July, the beauty of one of our most fundamental and treasured rights.

Revise the Voting Rights Act: Sign the petition.










NYC Wins When Everyone Can Vote!

Michael H. Drucker
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NC Prepares Voter ID Laws After Section 4 Repeal

North Carolina is moving forward with a host of bills to roll back voting rights.

Republican lawmakers are accelerating a new agenda to eliminate early voting, Sunday voting hours, and same-day registration provisions. GOP leaders also vowed to move quickly to pass a controversial voter ID law that would make it much harder for minorities, seniors, students, and low-income voters to cast their ballots.

North Carolina’s new voting rights law has three main prongs:

1. Require ID at the polls. North Carolina’s voter ID bill could pose problems for 1 in 10 voters, according to an analysis by the State Board of Elections. About 613,000 North Carolinians lack the required government-issued ID. Nearly a third of these voters are black, while over half are registered Democrats.

2. Penalize college students for voting. Republicans are pushing a bill to raise taxes on families with college students who choose to vote at school rather than at home, effectively discouraging college students from voting.

3. End early voting and same-day registration.

The Republican-dominated legislature and new Republican governor will likely do all they can to speed along these restrictions. However, polls show that North Carolinians overwhelmingly oppose these new voter suppression measures. “Moral Monday” protests are cropping up all over the state to challenge these bills and a slew of other draconian policies targeting the poor, women, minorities, and seniors.

The question now is who will file the Section 2 objections with the Justice Department?










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Michael H. Drucker
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TX Election Map Suit Survives

Texas Governor Rick Perry’s bid to end the state’s two-year redistricting fight was rebuffed by a panel of federal judges who refused to dismiss a lawsuit by voting-rights activists and said they would consider adding the state’s latest election maps to the current challenge. The case is Perez v. Perry, 5:11-cv-0360, U.S. District Court, Western District of Texas (San Antonio).

The three-judge panel in San Antonio gave minority-rights activists until July 12 to formalize a request to add maps signed into law last week by Perry to the continuing case. The state opposes the addition.

On June 25, the Supreme Court struck down the portion of the Voting Rights Act that determines which states with a history of discrimination must get federal approval for redistricting and other election-related changes.

The justices specifically threw out the Washington court’s finding that Texas’s original 2011 election maps were discriminatory, a finding that was based on a now voided portion of the Voting Rights Act.

Texas lawmakers adopted the new voting maps one day before the Supreme Court’s June 25 ruling removed the requirement for the state to obtain U.S. Justice Department approval for changes to its elections.

“On a new map, a new lawsuit needs to be filed,” Texas Assistant Attorney General David Mattax told the judges. “The 2011 maps don’t exist anymore. They’ve been repealed by the legislation.”

The state argued that stopgap congressional and state legislative districts drawn by the panel before the 2012 election should become permanent after the U.S. Supreme Court threw out part of the Voting Rights Act.

The minority-rights groups that won an order temporarily blocking the election maps drawn by lawmakers in 2011 wanted the judges to further change district boundaries. They contend the maps Perry signed into law were intended only for last year’s elections and still discriminate against black and Latino voters, who historically vote more often for Democrats.

“That intentional discrimination has not been erased,” Jose Garza, one of the lawyers leading the redistricting challenge, said in an interview.

The judges today denied Texas’s motion to dismiss the case. The panel gave lawyers three weeks to submit briefs on how section 3(c) of the Voting Rights Act might allow the court to order the state to obtain federal approval of all election changes. Section 3C gives judges such discretion in states that have recently engaged in discriminatory practices.

U.S. Circuit Judge Jerry Smith asked Garza if triggering section 3(c) was the activists’ goal in asking the court to find the legislature’s 2011 maps were created with intentional discrimination, since those maps have been replaced by the 2013 maps.

“It changes everything,” Garza responded, if the court declared grounds for a section 3(c) redistricting challenge. “Then the 2013 plan would have to be pre-cleared” before it could be used in an election, he said.

Texas gained four congressional seats last year after the state added 4.3 million new residents, according to the 2010 U.S. Census. More than 65 percent of the new Texans are Hispanic, potentially increasing Democrats’ political power in a state that’s been a Republican stronghold for 20 years.

Other lawyers asked the panel today to add the 2013 maps to the current case. “It’s not going to end with this,” said Luis Roberto Vera, lead lawyer for the League of United Latin American Citizens and one of the attorneys who made the request on the 2013 maps.

He said if the court had agreed with the state that this lawsuit was made irrelevant by the Supreme Court ruling, then “we’re going to be filing new actions and we’ll be back here again.”

Texas officials argue that the Republican-controlled legislature can legally create election districts that disadvantage political opponents.

Opponents say the judges only had time to adjust the most egregiously discriminatory boundaries to create interim maps so that Texas could participate in the 2012 presidential election. The U.S. Supreme Court had ordered the San Antonio judges to base their adjustments on the legislature’s maps, which were later found to have been created “with discriminatory intent” by a different panel of federal judges in Washington.










NYC Wins When Everyone Can Vote!

Michael H. Drucker
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My Option for the Supreme Court Voting Rights Case

Today, the Supreme Court keep the Voting Rights Act but required a new coverage formula. In a 5-4 ruling that split the court along ideological lines, the court freed some or all of 15 states from the requirement that all changes to voting laws, procedures and even polling place locations get advance approval from the Justice Department or a panel of federal judges.

The formula for coverage under Section 4 of the Voting Rights Act

As enacted in 1965, the first element in the formula was whether, on November 1, 1964, the state or a political subdivision of the state maintained a "test or device" restricting the opportunity to register and vote. The Act's definition of a "test or device" included such requirements as the applicant being able to pass a literacy test, establish that he or she had good moral character, or have another registered voter vouch for his or her qualifications.

The second element of the formula would be satisfied if the Director of the Census determined that less than 50 percent of persons of voting age were registered to vote on November 1, 1964, or that less than 50 percent of persons of voting age voted in the presidential election of November 1964. This resulted in the following states becoming, in their entirety, "covered jurisdictions": Alabama, Alaska, Georgia, Louisiana, Mississippi, South Carolina, and Virginia. In addition, certain political subdivisions (usually counties) in four other states (Arizona, Hawaii, Idaho, and North Carolina) were covered. In fully covered states, the state itself and all political subdivisions of the state are subject to the special provisions. In "partially covered" states, the special provisions applied only to the identified counties. Voting changes adopted by or to be implemented in covered political subdivisions, including changes applicable to the state as a whole, are subject to review under Section 5.

In 1970, Congress recognized the continuing need for the special provisions of the Act, which were due to expire that year, and renewed them for another five years. It added a second prong to the coverage formula, identical to the original formula except that it referenced November 1968 as the relevant date for the maintenance of a test or device and the levels of voter registration and electoral participation. This addition to the formula resulted in the partial coverage of ten states, including Alaska, Arizona, California, Connecticut, Idaho, Maine, Massachusetts, New Hampshire, New York, and Wyoming. Half of these states (Connecticut, Idaho, Maine, Massachusetts, and Wyoming) filed successful "bailout" lawsuits.

In 1975, the Act's special provisions were extended for another seven years, and were broadened to address voting discrimination against members of "language minority groups," which were defined as persons who are American Indian, Asian American, Alaskan Natives or of Spanish heritage." As before, Congress expanded the coverage formula, based on the presence of tests or devices and levels of voter registration and participation as of November 1972. In addition, the 1965 definition of "test or device" was expanded to include the practice of providing any election information, including ballots, only in English in states or political subdivisions where members of a single language minority constituted more than five percent of the citizens of voting age. This third prong of the coverage formula had the effect of covering Alaska, Arizona, and Texas in their entirety, and parts of California, Florida, Michigan, New York, North Carolina, and South Dakota.

In 1982, the coverage formula was extended again, this time for 25 years, but no changes were made to it. In 2006, the coverage formula was again extended for 25 years. Section 4, along with those other sections that are dependent upon it, such as Section 5 and 8, will expire in 2031.

The best way to handle this is during the census. Every ten years during the census all states are put on preclearance. Under the law, a jurisdiction can get out from under Sections 4/5 if it can show a ten-year record of non-discrimination.

They then file their bailout 10 year record. After the Justice Department review, the preclearance map will change. This will then affect each state when they file their redistricting maps.

With all the current laws making it harder for some to vote, I would like to see voters use the part of Section 4 that allows them to partition for the Justice Department to examine a bailout county or state and see if they have failed a bailout, and if proven, put them back on preclearance.

From Ballot Access News:

"Since it is not likely that Congress will re-write section four, the practical impact of today’s decision will be to increase the number of lawsuits. Section two of the act has not been limited in any way. It gives the U.S. Justice Department authority to sue any state or other jurisdiction that has an election law or practice that results in racial discrimination in voting. The number of such lawsuits will probably increase, because the new laws and practices that lead to such lawsuits will increase without the pre-clearance law in effect."










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Michael H. Drucker
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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.










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Michael H. Drucker
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My Option for the Supreme Court Voting Rights Case

Today, the Supreme Court will hold a scheduled oral argument 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 will be argued by Bert W. Rein of the Washington, D.C., law firm of Wiley Rein LLP. Dividing time in defense of the law will be 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.

My option would be to modify the opt-out (“bailout”) opportunity already in the law.

Just as the Court passed up the opportunity in 2009 to strike down the 1965 Act’s provisions, it could do so again this time, and perhaps with a variation of the back-up approach it took then: expanding the opportunity for jurisdictions to declare themselves beyond the law because they no longer discriminate against minority voters. But this is somewhat questionable, because it gets the Court into the business of rewriting a law of Congress, or at least seeming to do that.

Under the law, a jurisdiction can get out from under Sections 4 and 5 if it can show a ten-year record of non-discrimination. It is difficult to know how that very specific formulation could be changed by the Court without it getting into actual legislative drafting. Perhaps the Court might strike down the ten-year “clean hands” record, and tell Congress to find something that makes it easier to bail out. I would change it to 5 years.

The jurisdiction that is directly involved in this case, Alabama’s Shelby County, cannot qualify for the existing bailout, because it simply does not satisfy the ten-year minimum of “clean hands.”

The federal government and the other defenders of the 1965 Act are pushing the bailout option strenuously, in hopes that it would be the way to salvage Sections 4 and 5, and thus the heart of the Act.

With all the current laws making it harder for some to vote, I would like to see voters use the part of Section 4 that allows them to partition for the Justice Department to examine a bailout county or state and see if they have failed a bailout, and if proven, put them back on preclearance.

UPDATE
Following through on the deep constitutional concerns stated in its prior Northwest Austin decision, a majority of the Court seems committed to invalidating Section 5 of the Voting Rights Act and requiring Congress to revisit the formula for requiring preclearance of voting changes. The vote seems quite likely to be five-to-four. The more liberal members pressed both the narrow argument that an Alabama county was not a proper plaintiff because it inevitably would be covered and the broader argument that there was a sufficient record to justify the current formula. But the more conservative majority was plainly not persuaded by either point. It is unlikely that the Court will write an opinion forbidding a preclearance regime. But it may be difficult politically for Congress to enact a new measure.










NYC Wins When Everyone Can Vote!

Michael H. Drucker
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Supreme Court and Voting Rights

In Shelby County v. Holder, which the Supreme Court will hear this month, the issue is whether Section 5 of the Voting Rights Act remains necessary to prevent racially biased voting laws in nine states and part of seven others with egregious histories of discrimination against minority voters.

Under Section 5 of the Voting Rights Act, certain covered jurisdictions, determined according to Section 4 of the act, are required to seek preclearance for any changes in voting qualifications, standards, practices or procedures from the U.S. District Court for the District of Columbia, or from the U.S. Attorney General, prior to their implementation.

Section 4 of the act provides that a covered jurisdiction may seek to “bail out,” or remove itself from such coverage, and therefore be exempted from the preclearance requirements, by seeking a declaratory judgment before a three-judge panel in U.S. District Court for the District of Columbia. A bailout judgment can be issued only if the court determines that the jurisdiction meets certain eligibility requirements for bailout contained in the statute, including a 10-year record of nondiscrimination in voting-related actions. The act also provides that the attorney general can consent to entry of a judgment of bailout only if, based upon investigation, the attorney general is satisfied that the jurisdiction meets the eligibility requirements.

In Shelby, the district court noted that DOJ had objected in 2008 to an annexation of the city of Calera, a “governmental unit” within Shelby County, and that Shelby County held several special elections under one county ordinance that had not been submitted to DOJ for preclearance. DOJ asked the court for six months of discovery to investigate Shelby County’s eligibility for bailout. The court denied the request and permitted no discovery into the eligibility question.

Justice wants to be able to get up before the Supreme Court in the Shelby County case and show that an entire state was able to bail out of Section 5. They want to argue that there is a viable way out for covered jurisdictions, including states, and that therefore the Supreme Court should not decide the constitutional issue.

Last year, The Justice Department announced that it has reached an agreement with the Browns Valley Irrigation District, a special district in California, that will allow for the district to bail out from its status as a “covered jurisdiction” under the special provisions of the Voting Rights Act, and thereby exempt the district from the preclearance requirements of Section 5 of the Voting Rights Act. The district covers part of Yuba County, which is a jurisdiction subject to Section 5. The agreement is in the form of a consent decree filed in the U.S. District Court for the District of Columbia.

With all the attempts of Voter ID laws and gerrymandering, and with the bailout option of Section 4, we need the entire United States to be under Section 5.

There is another part of Section 4 that allows the voters to partition for the Justice Department to examine a bailout county or state and see if they have failed a bailout, and if proven, put them back on preclearance.










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Michael H. Drucker
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14th Amendment and the Debt Ceiling Law

The Fourteenth Amendment (Amendment XIV) to the United States Constitution was adopted on July 9, 1868.

Section 4. The validity of the public debt of the United States, authorized by law, shall not be questioned.

Under US Debt Ceiling law, an administration can spend only if it has sufficient funds to pay for it. These funds can come either from tax receipts or from borrowing by the United States Department of the Treasury. Congress has set a debt ceiling, beyond which the Treasury cannot borrow.

There seems to be a conflict in the above law and amendment that could see the Debt Ceiling law unconstitutional.

I could see the Debt Ceiling law modified to say we will pay our prior debts with revenue and borrowing, as needed, but any borrowing over that debt would require congressional approval.

How would you handle this issue?










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Michael H. Drucker
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