Long-Lost Constitutional Clause Could Save the Right to Vote

If you are a reader of this blog, you know I think the Preclearance process of the Voting Rights Act should be part of the Census.

But an important tool remains unused, all but forgotten in a dark and dusty corner of the shed.  Dating back to Reconstruction, it has the great merit of being already enshrined in the Constitution.  According to Section 2 of the Fourteenth Amendment, any state that denies or abridges the right to vote for any reason must have its congressional representation reduced in proportion to the number of citizens it disenfranchises.  Arguably the most radical clause in the Constitution, it was designed to remake the government and the country.  It has never been enforced.

Article I of the Constitution directed that congressional representation be apportioned to the states “according to their respective numbers, which shall be determined by adding to the whole Number of free Persons…three fifths of all other Persons.”  This was the founders’ politic way of referring to slavery, a word that first appears in the Constitution only to announce its disappearance.  The House passed the Thirteenth Amendment in January 1865, and it was ratified just as Congress reconvened that December.  The founders’ compromise gave the South up to thirty “slave seats” in Congress.  With the abolition of slavery, however, “all other Persons” would now count in full for the purposes of congressional representation, even if not a single freed slave had the right to vote.  Allied with Northern Democrats sympathetic to the Confederate cause, the South would have enough seats to control both houses of Congress.  “All they needed to do was delay and stall” until the 1870 census, Garrett Epps writes in Democracy Reborn: The Fourteenth Amendment and the Fight for Equal Rights in Post–Civil War America, when “once again the Slave Power would be the dominant force in national affairs.”  The successful campaign to abolish slavery would have the effect of significantly increasing the slave states’ power in Congress, perhaps to the point of allowing them to restore their “peculiar institution,” in effect if not in name.

Radicals preferred to grant suffrage outright to the freed men, women, alas, were another matter, but it was clear that such a proposal would not pass even the Northern-dominated Congress, much less be ratified by more than a few states.  In the winter of 1866, only five states, Maine, Massachusetts, New Hampshire, Rhode Island and Vermont, allowed all black males to vote, while New York extended the franchise only to those with $250 worth of property, then a significant sum.  Recent referendums on the question of black male suffrage had been defeated in Connecticut, Minnesota and Wisconsin, as well as in the territory of Colorado, which Congress voted to admit to the Union the following year.  Given the impossibility of explicitly extending the franchise to blacks, the Republicans sought to accomplish the same end by indirect means, or at least to prevent more power from accruing to the South.

The first effort to do so, proposed to the Joint Committee for Reconstruction in December 1865, would have amended Article I to apportion representation on the basis of all eligible voters, not “persons,” in each state.  It would have stripped the South of representation for disenfranchised blacks, but it also would have brought unpleasant consequences for the North.  While roughly 90 percent of blacks lived in the South at the time, an even higher percentage of the country’s non-naturalized immigrants lived in the North.  Perhaps more damaging, so many young men in the Northeast had obeyed Horace Greeley’s exhortation of July 1865 to “go west” that women, who were not eligible to vote anywhere in the country, now made up a disproportionate percentage of the New England population.  Unless those states granted women the right to vote, the amendment would have reduced the region’s representation, thus exacerbating the problem for Republicans.  It was promptly defeated by the committee.

So the proposal was amended to specify that if a state denied the ballot to a single person “on account of race or color,” then “all persons of such race or color shall be excluded from the basis of representation.”  For Northern states without universal male suffrage, their tiny populations of free blacks would render the penalty manageable.  But refusing the ballot to freed slaves would sharply reduce the Southern states’ representation.

Fellow Republicans immediately saw problems with the new formulation: Would it not be easy, they observed, for the South to exclude blacks from suffrage on the basis of something other than race, such as property ownership?  Even so, the House approved the new language, but the amendment died in the Senate, where Charles Sumner of Massachusetts called it “a compromise of human rights,” because he thought it implicitly acknowledged the right of states to deny the ballot to black men.

The Nation magazine joined Sumner in supporting an amendment directly “forbidding any man’s exclusion from political rights on the ground of race or color” and argued, rather optimistically, that whatever the immediate obstacles, it would “certainly be carried before very long.”  An editorial in February 1866 warned against “establishing a bad precedent for the sake of avoiding a temporary inconvenience.”

The Joint Committee for Reconstruction looked at the proposal again after its defeat in the Senate.  Considering the objection that focusing solely on race would allow Southern states to disenfranchise blacks through indirect means, the committee altered the language to say that “when the right to vote…is denied to any of the male inhabitants of such State…or in any way abridged,” then “the basis of representation therein shall be reduced in the proportion” which the number of disenfranchised bear to “the whole number of male citizens twenty-one years of age.”  An exemption for “participation in rebellion or other crime” is the dubious basis for state laws that strip an estimated 6 million felons of the right to vote in every election.

Reductions would be allotted proportionally.  For example, if Mississippi, where African-Americans constituted half the population, denied black men the right to vote, the state would forfeit half of its congressional representation.  The rewritten bill satisfied concerns that the Southern states would use indirect means to deny black people the right to vote, and, almost as an afterthought, the committee combined the reapportionment amendment with other proposals it had been working on, including provisions defining citizenship and ensuring due process and equal protection under the law.  Though these have long been the most consequential provisions in what became the Fourteenth Amendment, but the second section, regarding reduced representation, was “the most important in the article.”

But the new formulation still did not answer the concerns that Section 2 amounted to an implied endorsement of a state’s right to disenfranchise voters.  Even after the amendment passed Congress, the House approved it in May 1866, and the Senate in early June, some abolitionists thought it was a step in the wrong direction.  Frederick Douglass was among them: “To tell me that I am an equal American citizen, and, in the same breath, tell me that my right to vote may be constitutionally taken from me by some other equal citizen or citizens, is to tell me that my citizenship is but an empty name.”

High on the long list of tragedies that followed Reconstruction is the federal government’s failure to enforce Section 2 even once.  This country’s history would have been immeasurably happier had Section 2 been implemented or even remembered.

Once it became apparent that the all-white state governments set up by President Johnson did not plan to grant African-Americans even minimal civil-rights protections, Congress took over the revolution it had sought to effect in Southern politics and society.  With the Reconstruction Acts of 1867, Republicans imposed military rule on the Southern states and required them to draw up new constitutions, ratify the Fourteenth Amendment, and grant black men the right to vote, still denied them in much of the North.  In 1869, Congress finally passed the Fifteenth Amendment: “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.”

While many held that Section 2 of the Fourteenth Amendment was superseded or even repealed by the Fifteenth Amendment, the latter’s explicit reference to race actually makes it in some ways more limited: it disallows only a specific kind of infringement, while Section 2 provides a remedy whenever the right to vote is “in any way abridged.”  In the most literal sense, the Fifteenth Amendment has been obeyed since its passage.  But after a series of blatantly racist Supreme Court decisions and the presidential-election compromise of 1877 ended Reconstruction, a development welcomed, to its shame, Section 2 was openly flouted.  The imposition of poll taxes, literacy tests and other ostensibly race-neutral mechanisms stripped most African-Americans of the right to vote for the better part of a century.

Little was ever heard about section 2 again.  Over the years, a few representatives introduced bills calling for its enforcement, but all came to naught.  In 1904, the Republican Party endorsed it in its platform.  In 1921, when the NAACP launched a campaign to implement Section 2, W.E.B. Du Bois wrote an article in the organization’s magazine, The Crisis, titled “Reduced Representation in Congress.”  By allowing states that disenfranchised voters to maintain the same level of congressional representation, he wrote, “this nation is putting a premium upon oligarchy and a penalty upon democracy.”  Du Bois added: “We have at present only one legal remedy and that lies in the 14th Amendment.”

The first line of the Voting Rights Act of 1965 describes it as “an act to enforce the fifteenth amendment.”  Section 2 of the Fourteenth is never mentioned, probably because it had finally been rendered obsolete.  The promises of Reconstruction, at least those concerning suffrage, were finally redeemed.

In the wake of the Shelby County decision, the Voting Rights Act’s reliance on the Fifteenth Amendment seems increasingly insecure.  Voting-rights advocates largely rely on the second section, with its requirement of proof of racial discrimination, to combat the new barriers to the ballot box.  It was on this basis that a federal district court in Texas struck down that state’s voter-ID law last October, ruling that the requirement served as an unconstitutional, racially discriminatory poll tax, which were prohibited under the Twenty-Fourth Amendment, ratified in 1964.  But wherever a court refuses to acknowledge such realities, the VRA is largely declawed.

Last September, the Government Accountability Office released a report showing that in Kansas and Tennessee, both of which passed voter-ID laws, voter turnout in the 2012 elections declined 2 to 3 percentage points more than in comparable states that did not introduce such restrictions.  The report demonstrated that turnout was disproportionately lower among African-Americans, newly registered voters, and those between the ages of 18 and 23.

Now imagine if Section 2 were finally enforced.  Kansas sends only four representatives to the House, so disenfranchisement of 25 percent of its voting-age citizens would be required for it to lose one.  Tennessee has nine, bringing the percentage down to 11.  North Carolina has thirteen representatives; 7.7 percent of voters would need to be disenfranchised.  Ohio, with sixteen members, would need 6.25 percent; Florida, with twenty-seven members, 3.7 percent, still too high.  But Texas has thirty-six representatives.  Only 2.8 percent of Texans would need to be disenfranchised for the Lone Star State to lose a member of its congressional delegation.

In her decision striking down the Texas voter-ID law, District Court Judge Nelva Gonzales Ramos found that 600,000 voters did not have photo IDs, and that the state had issued a mere 279 new ones before hearings in the case began.  Whatever its intention, Texas likely abridged the right to vote for at least 4.5 percent of its electorate.

“Big deal,” the skeptics may scoff, “one measly representative.”  Enforcing Section 2 would neither end the latest infringements on voting rights nor immediately reverse the balance of power in the House.  But it would contextualize voter-ID laws and related policies within a broader project of voter suppression that’s as old as the restored Union.  The provision was designed, as one of its supporters argued, for a future in which Congress refuses to enforce voter's rights, so that disenfranchising states, in the interim, would “not have the benefit of their wrongdoing.”  A gift from the Radical Republicans of 1866 to the radical democrats of today, Section 2 should figure prominently in the 2016 platform of any candidate or party committed to protecting the right to vote.

For the future, it serves to recall that we are heirs to a tradition resilient beyond imagination.  There are portions of the old structure that need not be cleared away.  They are waiting to be rediscovered and worked into a “repaired edifice” built upon “the firm foundation of eternal justice.”











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A Better Way to Implement the Voting Rights Act's Preclearance

John Conyers (D-Mich.) and House Democrats plan to spend this year drawing attention to ongoing concerns with voting rights after the Supreme Court invalidated parts of the Voting Rights Act (VRA) Section 4, Preclearance, in 2013.  The court struck down sections of the law dealing with the special scrutiny imposed on states with a history of discrimination, compelling Congress to come up with a new formula based on current data to determine which states should be subject to the law.

House Judiciary Committee Chairman Bob Goodlatte (R-Va.) said last week that he sees no need to revamp the law, yet another sign of disagreement between Republicans and Democrats.

“We have not seen a process forward that is necessary to protect people because we think the Voting Rights Act is providing substantial protection in this area right now,” Goodlatte said at a breakfast hosted by the Christian Science Monitor.

Conyers is undeterred.

“The Supreme Court kind of threw us a curveball on that, but look, that’s happened before,” he said. The court’s decision makes voting rights “a new, big issue,” he said.

The best way to solve this is to take it out of the hands of Congress and make it part of the Census.

Implementation steps:

1. At the beginning of the Census, put all states on Preclearance.

2. The states submit their last ten years of voting records to the Justice Department's Voting Rights division.

3. Within 90 days, those states that pass are removed from Preclearance.

4. State's Redistricting plans are submitted for review by those states still on Preclearance.

To make this work, the new formula must be flexible to adjust for new ways states' restrict voter's right to vote.

After 5 years, a Preclearance state should be able to terminate coverage under the Act's special provisions.  Section 4 provides that a jurisdiction may terminate or "bailout" from coverage under the Act's special provisions.  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:

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

- 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 and 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.

Before being allowed to "bailout", 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.

In addition, 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 jurisdiction seeking "bailout" must publicize the intended commencement and any proposed settlement of the action; any aggrieved party may intervene in the litigation.

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 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.

The Voting Section also accepts complaints about possible violations of the federal voting rights laws.

The Voting Section enforces the civil provisions of the federal laws that protect the right to vote, including the Voting Rights Act, the Uniformed and Overseas Citizens Absentee Voting Act, the National Voter Registration Act, the Help America Vote Act and the Civil Rights Acts.

The Voting Section accepts complaints about possible violations of the federal voting rights laws:

- By email at voting.section@usdoj.gov
- By telephone at (800) 253-3931 (toll free)
- By fax at (202) 307-3961
- By complaint form, CLICK HERE
- By letter to the addresses below:

Voting Section
Civil Rights Division
U.S. Department of Justice
Room 7254 - NWB
950 Pennsylvania Ave., N.W.
Washington, DC 20530











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Wisconsin’s Voter ID Law Fight

A federal judge struck down the state's Voter ID law.  In a lawsuit brought by Advancement Project and pro bono law firm Arnold & Porter, they showed that, in burdening the right to vote for Wisconsin’s African-American and Latino citizens, the measure violated Section 2 of the Voting Rights Act (VRA).  In his decision, the judge also rejected the state’s argument that a voter ID law was needed, stating that allegations of voter fraud have absolutely no merit.

The Wisconsin victory marked the first time a voter ID law has been defeated under Section 2, which prohibits voting practices that discriminate on the basis of race.  That’s especially important since one year ago this week, in its Shelby County v. Holder decision, the U.S. Supreme Court gutted the provision (Section 5) of the VRA which required federal pre-approval of voting changes in jurisdictions with a history of discriminatory practices.

On the one-year anniversary of the Supreme Court’s Shelby decision, we are reminded of how much we lost.  Fighting voter suppression laws under Section 2, as done in Wisconsin (a state that had not been previously covered by Section 5) requires taking states to court and proving that their voting laws are discriminatory.  It places the burden on voting rights attorneys and communities of color, and it places tremendous pressure on litigation, which involves vast amounts of resources and time.

Instead of accepting the judge’s decision, the state of Wisconsin is fighting tooth and nail to keep these discriminatory laws on the books.  Last month, state officials appealed the judge’s order, filing with the 7th Circuit Court of Appeals to overturn the ruling.  Now Advancement Project and their law firm face a drawn-out legal battle over the issue, with another set of court arguments expected in the coming months.

It’s unfortunate that Wisconsin officials are using limited state resources in a desperate attempt to defend an unnecessary and racially discriminatory voting measure.

This legal battle is intended to keep partisan politicians in power by restricting the votes of people of color.  The casualties of this war on voting rights will be older African Americans born in the rural South when it was not common to record Black births; people unable to afford time off from work to make it to Wisconsin’s limited DMV offices, which are only open on weekdays and mostly during daytime hours; and the hundreds of thousands of Wisconsin voters, disproportionately voters of color, who lack the required form of voter ID.

What happens next in the state has implications for the entire country.  As the leading democracy in the world, it is our responsibility to ensure states do not enact laws that obstruct the inalienable right to vote.  This is why we should all be watching Wisconsin.










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Michael H. Drucker
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One Year After The Voting Rights Act Was Gutted

A year ago today, in a 5-to-4 ruling on Shelby County v. Holder, the Supreme Court invalidated a key provision of the Voting Rights Act.  Jurisdictions with histories of racial discrimination subject to preclearance, or special review by the Justice Department or a federal court before enforcing any new voting laws, were now free to legislate as the wished.

Though the conservative Justices may disagree, voting discrimination is not largely a thing of the past.  Since 2010, nearly two-thirds of the states previously covered under Section 5 of the VRA, nine of fifteen, have passed new voting restrictions.

And between 2000 and June 2013, there were 148 Section 5 objections or other VRA violations recorded in 29 states, mostly concentrated in the South.



Meanwhile, Congress which voted to renew the Voting Rights Act in 1970, 1975, 1982, and 2006, each time with increasingly larger margins, has yet to fix it this time around.

The Senate has introduced the Voting Rights Amendment Act.  In the House, it has languished.  House Judiciary Committee Chairman Bob Goodlatte apparently thinks that a fix to the Supreme Court’s Shelby decision is not needed.

BOTTOM LINE: Last year, the Supreme Court ruled that we no longer need the Voting Rights Act.  Today offers a good opportunity to remind them, and the legislators dragging their feet in Congress, that we do.  States continue to pass laws designed to erect barriers to voting and suppress voter turnout, often targeted disproportionately at minority communities.  There may no longer be literacy tests or poll taxes, but the modern voting restrictions are just as insidious and we need strong federal protections to prevent states from enacting them.

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, so they get 90 days to file their bailout 10 year record.  After the Justice Department review, the preclearance map will change.  This will then affect those states put on preclearance when they file their redistricting maps.

The key to this concept is the creation to an independent review board to modify the Section 5 rules to keep up with future voter suppression laws.

The current laws are:

1. The first element in the formula was that the state or political subdivision of the state maintained on November 1, 1964, a "test or device," restricting the opportunity to register and vote.

2. 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.

3. Proof that any proposed voting change does not deny or abridge the right to vote on account of race, color, or membership in a language minority group.

4. In 1970, Congress adopted an additional coverage formula, identical to the original formula except that it referenced November 1968 as the date to determine if there was a test or device, levels of voter registration, and electoral participation.

5. In 1975, the special provisions of the Voting Rights Act were broadened to address voting discrimination against members of "language minority groups."  An additional coverage formula was enacted, 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 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.

So we need to expand the formula to include new voter I.D. laws, reductions in early voting, and any other laws that state's can come up with in the future.










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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?










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Michael H. Drucker
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Justice Dept. Starts VRA Bail-In for TX

Attorney General, Eric Holder, delivered remarks at the National Urban League Annual Conference.

"Today I am announcing that the Justice Department will ask a federal court in Texas to subject the State of Texas to a preclearance regime similar to the one required by Section 5 of the Voting Rights Act. This request to “bail in” the state – and require it to obtain “pre-approval” from either the Department or a federal court before implementing future voting changes – is available under the Voting Rights Act when intentional voting discrimination is found. Based on the evidence of intentional racial discrimination that was presented last year in the redistricting case, Texas v. Holder – as well as the history of pervasive voting-related discrimination against racial minorities that the Supreme Court itself has recognized – we believe that the State of Texas should be required to go through a preclearance process whenever it changes its voting laws and practices.

This is the Department’s first action to protect voting rights following the Shelby County decision, but it will not be our last. Even as Congress considers updates to the Voting Rights Act in light of the Court’s ruling, we plan, in the meantime, to fully utilize the law’s remaining sections to ensure that the voting rights of all American citizens are protected. My colleagues and I are determined to use every tool at our disposal to stand against discrimination wherever it is found. But let me be very clear: these remaining tools are no substitute for legislation that must fill the void left by the Supreme Court’s decision. This issue transcends partisanship, and we must work together. We cannot allow the slow unraveling of the progress that so many, throughout history, have sacrificed so much to achieve. And, in our broader efforts, we will continue to look far beyond America’s ballot boxes – to our schools, military bases, and border areas; our immigrant communities, our criminal justice system, and even our workplaces – in order to advance the fight for equality and against injustice."

On June 26, Texas Congressman Marc Veasey, who is African-American, and eight other plaintiffs filed a new lawsuit against the Texas photo-ID law for voters at the polls, Veasey v Perry, 2:13-cv-193, southern district. Some of the plaintiffs are voters who lack the approved forms of ID. Others have state ID but the name on the voter’s ID and the name of the voter on the voter registration rolls don’t exactly match and the voter has not been able to resolve the problem.

If approved under Section 3, Texas would fall under preclearance for 10 years. They would have to prove, at a later date, using the Bail-Out option, documentation for the court that they corrected their voting rights problems.

Other states where Section 2 could come into play:

1. Mississippi: The state legislature approved a voter ID scheme in 2012, but it has not received DOJ clearance. Despite the restrictions, Mississippi’s secretary of state said they would proceed with implementing the voter ID law and that “We’re not the same old Mississippi that our fathers’ fathers were.“

2. Alabama: In 2011, the state passed a law requiring photo ID to vote, but never cleared it with the DOJ. Both the attorney general and the secretary of state said they believed their plans could now be implemented in time for the 2014 elections.

3. Arkansas: In April, the Arkansas legislature overrode Democratic Gov. Mike Beebe’s veto to pass their voter ID legislation. With preclearance out of the way, the state law can now be implemented without DOJ review.

4. South Carolina: The Palmetto State passed a similar voter ID law in 2012, but DOJ at least succeeded in delaying its implementation. South Carolina’s attorney general issued a statement following the decision, lauding the Court for allowing the preclearance states to “implement reasonable election reforms, such as voter ID laws similar to South Carolina’s.”

5. Virginia: Unlike several of the other states, Virginia’s voter ID plan was not scheduled to be implemented until July 2014 anyway. But unless Congress replaces the preclearance formula before then, Virginia will also likely be able to move forward with its plan.

6. Alaska, which just had its own voter ID law struck down, has not moved to restrict the right to vote in less than two days since the ruling.

7. Arizona, which just had its own voter ID law struck down, has not moved to restrict the right to vote in less than two days since the ruling.

8. Georgia, whose own voted ID law was likely ruled unconstitutional, has not moved to restrict the right to vote in less than two days since the ruling.










NYC Wins When Everyone Can Vote!

Michael H. Drucker
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Congressional Hearings on the Voting Rights Act

The Senate will begin an attempt to update the Voting Rights Act by hearing testimony on July 17, 2013 from a civil rights icon and a key steward of the Act in the past.

Sen. Pat Leahy’s Judiciary Committee will hear testimony from Rep. John Lewis (D-Ga.), who led a 1965 Peace March in Selma, Ala., and Rep. James Sensenbrenner (R-Wis.), who chaired the House Judiciary Committee in 2006 when Congress last reauthorized the Voting Rights Act by overwhelming votes in both chambers. That effort seven years ago was precipitated by about 20 hearings, according to Leahy’s office.

The House hearing, scheduled for July 18, 2013, will be held by the House Judiciary Subcommittee on the Constitution and Civil Justice, a committee chaired by Rep. Trent Franks, an Arizona Republican. He was one of 33 Republicans to vote against the 2006 re-authorization of the VRA, which passed with 390 House members supporting it.

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.

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.

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.

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.

So Section 4 is in suspension until a new formula is established.










NYC Wins When Everyone Can Vote!

Michael H. Drucker
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Justice Department at the George Washington University Law School Symposium

Assistant Attorney General Perez spoke at the George Washington University Law School Symposium on Friday, November 16, 2012. He discussed the Civil Rights Division’s work to protect the fundamental civil right that is the lifeblood of our democracy: the right to vote.

Some of the changes addressed what we can do both to protect the right to vote, and to improve the voting process:

1. Ensure that every eligible person entering a social service office can register to vote.

2. It should be the government’s responsibility to automatically register citizens to vote, by compiling, from databases that already exist, a list of all eligible residents in each jurisdiction. Of course, these lists would be used solely to administer elections and would protect essential privacy rights.

3. Election officials should work together to establish a program of permanent, portable registration – so that voters who move can vote at their new polling place on Election Day. Until that happens, we should implement fail-safe procedures to correct voter-roll errors and omissions, by allowing every voter to cast a regular, non-provisional ballot on Election Day. Several states have already taken this step.

4. Same-day registration is a reform we should be considering seriously – it would both facilitate election administration and promote electoral participation. For the 2012 election, eight states plus the District of Columbia had same-day registration in place. (Two more states have recently enacted it and will implement it next year – California, and Connecticut.) And we know that it increases participation: in both the 2008 and 2010 general elections, each of the eight states with same-day registration had higher turnout of the voting-eligible population than the national average. In fact, for the 2008 presidential election, five of the six states with the highest turnout in the country were states with same-day registration. Preliminary turnout estimates for the 2012 election show that this pattern will likely continue.

5. Voter fraud is not acceptable. But we also need to reform deceptive election practices and dishonest efforts to prevent certain voters from casting their ballots. Over the years, we’ve seen all sorts of attempts to gain partisan advantage by keeping people away from the polls – from literacy tests and poll taxes, to misinformation campaigns telling people that Election Day has been moved, or that only one adult per household can cast a ballot. Senators Schumer and Cardin recently introduced legislation that would deter and punish such harmful practices. This bill has sparked and helped to advance a critically important dialogue across – and beyond – Capitol Hill.

6. Provisional ballots - In some states and elections, large segments of the electorate are required to cast a provisional ballot instead of a regular ballot on election day, for any of a number of reasons. The Justice Department will be considering whether we need to propose concrete solutions, such as national standards for counting provisional ballots for federal elections, to ensure that voters are not disenfranchised by moves close to an election, by appearing in the wrong polling place or precinct, or by poll worker errors.

7. It’s time to rethink our largely partisan system of state and local election administration. We risk leaving our election processes open to partisan mischief – or to the perception of such mischief. We should have a serious conversation about solutions to this risk, including developing an entirely professionalized and non-partisan system for administering our elections.

The Supreme Court agreed last week to hear a challenge to Section 5 of the Voting Rights Act this term, in the lawsuit filed by Shelby County, Alabama. The Justice Department is looking forward to demonstrating to the Court both that the statute is still constitutional and still has critically-important work to do. Section 5 is a linchpin of the Voting Rights Act, and is directed at specific areas where discrimination historically was deeply rooted. Under that important provision, certain “covered jurisdictions” are prevented from altering their voting practices until it can be determined that any proposed changes would have neither a discriminatory purpose nor effect. This process, known as “preclearance,” has been a powerful tool in combating discrimination for decades. And it has consistently enjoyed broad bipartisan support – including in its most recent re-authorization, when President Bush and an overwhelming and bipartisan Congressional majority came together in 2006 to renew the Act’s key provisions and extend it until 2031.

The reality is that – in jurisdictions across the country – both overt and subtle forms of discrimination remain all too common – and have not yet been relegated to the pages of history. In just the past few months we’ve seen numerous vivid examples of the continuing salience of the VRA.

Section 5 continues to play an important prophylactic role, encouraging non-discriminatory voting practices at the outset. In many of the Section 5 covered states, for example, the statewide redistricting process following the release of the decennial census data in this cycle began with a decision to identify the existing ability-to-elect districts, and to protect the ability of minority voters to elect their candidates of choice in those districts. And at the more local level, one county in Texas recently withdrew a preclearance submission involving polling place changes after DOJ requested more information on the reasons for the change. The County planned to move the polling place from a school to a private club. The school had been agreed upon in earlier litigation as a compromise polling place location within the county, while the club had been a historically segregated organization. In our request for more information, we explained that our investigation had identified concerns that the use of the proposed polling place could discourage minority voters from turning out to vote. The County withdrew the submission after that request. As Congress recognized in 2006, and as the D.C. Circuit recently agreed, these kinds of examples are further evidence that Section 5 promotes compliance by covered jurisdictions.

At the same time, the statute has very effectively been used to allow covered jurisdictions to “bail out” when they demonstrate a history of compliance. Our bailout work has increased dramatically since the Supreme Court’s decision in Northwest Austin. Since the current bailout provision became effective in 1984, bailout has been granted in 36 cases. Fully half of those bailouts have been granted since the Supreme Court’s decision in Northwest Austin. Several more cases are pending now, including a bailout lawsuit filed by the State of New Hampshire. The effectiveness of the bailout mechanism further demonstrates that Section 5 is proportionate to the harms it is aimed at eliminating. In short, Section 5 continues to be necessary, and our bailout work illustrates that it is not over-inclusive.

The Department of Justice will continue, whether through enforcement and litigation, or through legislation and policy measures to expand the democratic process to all eligible participants.










NYC Wins When Everyone Can Vote!

Michael H. Drucker
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