Voting-rights advocates generally don’t look to Justice Antonin Scalia for comfort. During oral arguments earlier this year in Shelby County v. Holder, the case in which the Supreme Court struck down a central part of the Voting Rights Act of 1965, Justice Scalia called the act a “perpetuation of racial entitlement.”
But a growing circle of legal scholars is focusing on a lower-profile ruling — issued one week before the Shelby County decision and written by Justice Scalia — that may point the way to a new approach to protecting voting rights.
The 7-to-2 decision, in Arizona v. Inter Tribal Council of Arizona, struck down an Arizona law requiring anyone who wanted to vote to provide proof of citizenship. It said the state could not impose a rule that was more restrictive than the federal “motor voter” law, which requires only a sworn statement of citizenship by the voter.
Congress passed the motor-voter law under its power to set the “times, places and manner” of federal elections as authorized by Article I, Section 4 of the Constitution, known as the elections clause. The clause is much less well known than, say, the equal protection clause of the 14th Amendment, and yet Congress’s power under it, Justice Scalia wrote, “is paramount, and may be exercised at any time, and to any extent which [Congress] deems expedient.”
“That sort of woke everybody up again,” said Samuel Issacharoff, a professor at New York University School of Law who has studied the elections clause’s possibilities.
The problem, Mr. Issacharoff said, is that voting laws based on intentional racial discrimination, which the Voting Rights Act has been so successful at blocking, are both rarer and harder to identify today. “A lot of the contemporary problems are not well handled through the 50-year-old mechanism of the Voting Rights Act,” he said.
The elections clause, by contrast, does not speak to racial discrimination at all, but addresses the administration of voting rules. Still, in light of the Supreme Court’s ruling in Shelby County, it could have an important role to play. Strong federal laws enacted under the clause could help ensure voting fairness to all voters, especially when a state law appears neutral but has serious partisan or racially discriminatory effects. For instance, a state’s voter ID law might put up hurdles for poor or young voters, who may be disproportionately minority and Democratic, or for elderly voters, who lean Republican.
The elections clause allows Congress to set rules only for federal elections, but those laws almost always guide state election practices, too. For instance, Congressional legislation could pre-empt voter ID laws like Arizona’s or changes to early-voting laws like those attempted in Florida last year.
The bottom line, said Daniel Tokaji, an election law professor at the Moritz College of Law at Ohio State, is that Congress has much more power to legislate under the clause than it has exercised. It could, for example, liberalize voter registration nationwide, which has been shown to lead to higher turnout.
“I think Congress would be foolish not to look at the elections clause,” Mr. Tokaji said. “If they could do it over again, they might have paid more attention to it back in 2006,” when the Voting Rights Act was reauthorized using data that the Supreme Court in the Shelby County case found to be outdated. (Mr. Tokaji argued in an amicus brief that the justices should rely on the elections clause to uphold the Voting Rights Act, but the court did not address the issue in its ruling.)
Given the apparent direction of the court, even the remaining parts of the Voting Rights Act could be vulnerable to constitutional challenges. That makes it all the more timely for Congress to turn to its expansive authority under the elections clause to protect the right to vote.
By: Jesse Wegman, The New York Times, August 31, 2013
When the Supreme Court dismantled a key provision of the Voting Rights Act last June, there were two small silver linings in this decision. The first was the possibility that Congress could revive the regime killed by the Court, where states with particularly poor records of racialized voter suppression must “preclear” their voting practices with the Justice Department or a federal court before those practices can take effect. The second potential silver lining is Section 3 of the Voting Rights Act, which allows a state to be brought back under the preclearance requirement if a court finds that it engaged in “violations of the fourteenth or fifteenth amendment justifying equitable relief.”
Now, however, Texas wants to destroy these two silver linings as well. And there is a fair chance that the conservative Supreme Court will allow them to do so.
Late last month, the Justice Department joined a Section 3 lawsuit claiming that federal supervision of Texas’ election practices should be reinstated in light of very recent examples of intentional race discrimination by Texas. Among other things, a federal court found that Texas “consciously replaced many of [a] district’s active Hispanic voters with low-turnout Hispanic voters in an effort to strengthen the voting power of [the district's] Anglo citizens.” These, the Justice Department explained, were “violations of the fourteenth or fifteenth amendment” justifying federal supervision.
Texas’ response to the Justice Department does not simply reject the idea that it should be subject to preclearance, it calls upon the courts to declare virtually any preclearance regime unconstitutional. According to Texas, the Supreme Court’s decision hobbling the Voting Rights Act “threw out Congress’s reauthorization of a preclearance regime because the legislative record failed to show ‘anything approaching the ‘pervasive,’ ‘flagrant,’ ‘widespread,’ and ‘rampant’ discrimination that faced Congress in 1965, and that clearly distinguished the covered jurisdictions from the rest of the Nation at that time.’” In other words, Texas wants a federal court order saying that any effort to reinstate the Voting Rights Act in Texas is unconstitutional unless Texas transforms into Mississippi at the height of the Jim Crow era.
And they may very well succeed in getting this order. While Texas’ theory cannot be squared with the text of the Fifteenth Amendment — which provides that “[t]he 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,” and gives Congress “power to enforce this article by appropriate legislation” — it is not that hard to square with the Supreme Court’s recent decision. Chief Justice John Roberts’ opinion does indeed contain language suggesting that only something “approaching the ‘pervasive,’ ‘flagrant,’ ‘widespread,’ and ‘rampant’ discrimination that faced Congress in 1965″ can permit a preclearance regime now. The fact that this language flies in the face of the Constitution is not likely to bother the five conservative justices who already signed onto it once.
As a final act of chutzpah, Texas also claims that it cannot be subject to preclearance because “Hispanic citizens in Texas registered to vote at higher rates” than Hispanics in other states not subject to federal supervision under the Voting Rights Act. That very well be true, but it’s also besides the point. The thrust of the Justice Department’s lawsuit is that Texas intentionally drew its district lines so that white votes would count more and Hispanic votes would count less. In other words, the whole purpose of these lines was to make sure that it didn’t matter if Hispanic voters registered at high rates because their voting power would still be diluted by gerrymandering. It’s like a basketball referee claiming that it doesn’t matter that he’s not counting all the points scored by one team because that team is taking more shots.
By: Ian Millhiser, Think Progress, August 9, 2013
Pro-tip: When you win a big court case giving you the go-ahead to suppress voter turnout for your political opponents, don’t gloat about it.
That is surely one of the lessons in the remarkable news that the U.S. Department of Justice is challenging new voting-rights laws in Texas and elsewhere even after the Supreme Court ruling that eviscerated the part of the Voting Rights Act that the feds had relied on for decades to challenge voting restrictions. What made the ruling especially galling was the celebration that followed from Republicans in states, including Texas, who immediately vowed to proceed with voting restrictions that had been challenged under the now-undermined part of the VRA.
The alacrity with which Texas, North Carolina and other states have rushed to take advantage of the ruling seriously weakened the sober conservative argument, from Chief Justice John Roberts and others, that Southern states no longer needed to be singled out for special scrutiny because they had long since left their discriminatory ways behind. And it all but invited Attorney General Eric Holder to take this new step, to announce that his department would still do everything in its power to ensure fairness at the polls.
This will of course be decried as executive overreach and an assault on checks and balances, but the case for declaring it such would be much easier to make if Texas and other states hadn’t been so gleeful in their rush to capitalize on the ruling. Texas takes the cake for the speed of its response, but North Carolina surely takes the prize for sheer brazenness: The legislation making its way through Raleigh is so extreme that it earned even a tut-tut from arch-conservative Wall Street Journal columnist Stephen Moore. The legislation will not only add a strict Voter ID requirement by the polls, but reduce early voting days from 17 to 10 (early voting has been used disproportionately by African-Americans in the state), prohibit counties from extending polling hours in extraordinary circumstances, like unusually long lines, and eliminate provisional ballots for voters who show up at the wrong precinct, among other changes. A separate bill seeks to give a tax penalty to parents whose dependent children register to vote somewhere in the state other than where the parents reside, a nifty way to discourage voting by college students.
What impact would the changes have? My colleague Nate Cohn, who has generally warned against over-reaction on voter suppression measures, ran the numbers and found that the Voter ID provision alone could swing enough votes to win the state for Republicans in a close statewide election—and that’s not accounting for the early voting cutbacks and other changes. The New York Times has declared North Carolina “first in voter suppression,” a judgment quoted approvingly by election-law expert Rick Hasen, also not one prone to overstatement.
Holder is now, essentially, using the giddy brazenness of the voting-restriction push in these states to justify federal challenges even in the wake of the Supreme Court ruling. Under the “pre-clearance” provision in Sections 4 and 5 of the Voting Rights Act that was eviscerated by the ruling, a whole swath of states and municipalities, mostly in the South, had to submit voting law changes to the feds for approval as a matter of course. Holder is now threatening to use a different part of the Voting Rights Act, Section 3, which allows the federal government to demand pre-clearance rights by “bail-in.” As the Times puts it, if “the department can show that given jurisdictions have committed constitutional violations, federal courts may impose federal oversight on those places in a piecemeal fashion.” In other words, if the states’ recent track record on voting rights is sufficiently egregious, they may still need federal approval.
That is not to say, though, that the Supreme Court ruling was not enormously consequential. It will be much harder for the federal government to press its case by the Section 3 route. And whether the DOJ decides to make the effort to move against states will depend even more on which party holds the White House. As South Carolina Governor Nikki Haley boasted when I saw her on the stump in Greenville with Mitt Romney in early 2012, whereas the Obama administration had challenged her state’s stringent new Voter ID law, “President Romney [will say] that’s our right.”
By: Alec MacGillis, Senior Editor, The New Republic, July 26, 2013
I mentioned this briefly at Lunch Buffet, but because the story will be with us for a while, let me quote from Lyle Denniston’s explanation at SCOTUSblog of Eric Holder’s strategy for re-establishing a preclearance requirement for states engaged in repetitive and egregious voting rights violations in the wake of the Supreme Court’s Shelby County v. Holder decision:
The preclearance provision is contained in Section 5 of the Voting Rights Act. It has been widely considered to be the government’s most effective legal weapon against race bias in elections, because it requires states and local governments with a past history of racial discimination in voting to get official permission in Washington before they may put into effect any change, however small, in voting laws or procedures.
The 1965 law provided two ways to impose a Section 5 obligation on a state or local government. One was a virtually automatic formula, contained in Section 4 of the law. If a state or local government had a sustained history of racial bias in its voting patterns in the past, that triggered a coverage formula that led directly to a Section 5 preclearance obligation. Preclearance can be sought either from the Justice Department or from a three-judge District Court in Washington.
The second way to get a state or local government put under a preclearance duty is the 1965 law’s Section 3 — the one that the Attorney General said the government will now be invoking. If a state or local government is found to have recently engaged in intentional race bias in voting, a court has the power to impose the preclearance duty on that jurisdiction for a set period of time. It is not an automatic method, in contrast to the coverage formula in Section 4.
While the Supreme Court in the Shelby County ruling did not disturb Section 5 and the preclearance requirement, it did strike down the Section 4 coverage formula. That has been the quickest and most effective way to lead to Section 5 preclearance. The Court’s majority ruled that the coverage formula was seriously out of date, and could no longer be used to trigger Section 5 for any state or local government anywhere in the country.
The Shelby County decision did not disturb Section 3 as a separate way to bring about a preclearance duty. That is why advocacy groups — and now the Obama administration — are turning to Section 3 as the next-best way to enforce the 1965 law through preclearance.
The immediate effort will be focused on Texas, thanks to past court findings of intentional discrimination. But challenges to new voting rules and districting decisions elsewhere–most notably those in North Carolina, which are setting a kind of Gold Standard for voter dilution and repression–could well be next, particularly if the Texas litigation is successful.
BTW, I’d like to note that Lyle Denniston is 81 years old. The clarity and comprehensiveness of Denniston’s writing gives this old goat hope for a journalistic second wind that lasts a while.
By: Ed Kilgore, Contributing Writer, Washington Monthly Political Animal, July 25, 2013
Small juries, like all small samples, carry big costs. Doesn’t a jury in a serious criminal case have 12 members? Not in Florida.
Florida is one of only two states where a jury as small as six can decide a serious felony case. It is the only state where a murder case goes to a six-member jury. And second-degree murder in Florida is serious indeed, carrying a sentence of 25 years to life. The circumstances of the shooting that killed an unarmed teenager, moreover, are sharply disputed, implicating the use of guns, the limits of self-defense and race relations. As we often do, we have given the jury in this case a challenging task.
Why should we care if the jury has six or 12 members? The Sixth Amendment guarantees the right to trial by jury, but it does not specify jury size. When the Sixth Amendment was written, was the number simply assumed? James Madison thought it was: He thought the number was 12.
For almost 200 years, the U.S. Supreme Court consistently accepted this view, defining “jury” to mean the 12-member jury. For instance, in 1930, the court said that “it is not open to question” whether juries may consist of fewer than 12.
In 1970, however, the court reversed its position in Williams v. Florida and found no constitutional objection to Florida’s six-member jury. The court labeled the general use of 12 throughout history as an “historical accident.” The court’s characterization of the historical record has been widely disputed, but even more egregiously, the court joined its new historical assessment with a strikingly inaccurate behavioral claim.
It proclaimed that the behavior of six- and 12-member juries were “functionally” equivalent, and therefore the six-member jury was unobjectionable. In fact, the overwhelming weight of empirical evidence shows that juries of six do not perform as well as juries of 12.
How do six- and 12-member juries differ? Two differences are particularly relevant in the trial of George Zimmerman. First, numerous studies of all kinds show that cutting jury size in half decreases the likelihood that the jury will reflect a representative sample of the community. The lone non-white juror on the George Zimmerman jury is just one instance of that effect. The all-female jury is another.
The gender make-up of the jury cannot be explained merely by the majority female jury pool or attorney use of challenges. A total of 10 jurors was selected, the jury of six and four alternates. Two of the alternates were male. A larger jury that included the additional four would not have been homogeneous on gender.
Ethnicity and gender are not the only dimensions of difference shortchanged by a smaller jury.
Any background or set of beliefs or life experiences that may affect reactions to the evidence is substantially less likely to be represented on a six-member jury than on a 12-member jury. Simply due to chance, unrepresentativeness is more likely when only six jurors are needed to constitute the jury. That loss is particularly troubling when the jurors are evaluating crucial and disputed evidence, like the identity of the voice in the background on the 911 tape in the Zimmerman case.
Second, jury research finds that larger juries spend more time deliberating and their discussions of testimony are more thorough than smaller juries. More vigorous debate reflects the expanded pool of abilities and perspectives provided by the larger jury. Similarly, the ability of dissenters to resist majority pressure is promoted by the increased likelihood that a dissenter whose position is not simply idiosyncratic will have one or more other jurors who share that view. The dissenters might not carry the day, but their views will be more seriously considered.
There is no evidence that jury size is associated with more pro-prosecution or more pro-defense verdicts. Thus, the key here is not that the six-member jury systematically advantages one side or the other. Rather, the point is that a serious charge demands serious procedural consideration.
Even Florida, like every other state with the death penalty, uses a 12-member jury for capital offenses. Second-degree murder does not carry the death penalty in Florida, but it does call for thorough deliberation from a variety of perspectives. The six-member jury is unnecessarily handicapped.
What should be done? Ample empirical evidence on the jury demonstrates the need to reverse course. Perhaps in the wake of the Zimmerman case, Florida will reconsider its unique position on jury size. Even better: In recent years, the Supreme Court has turned down several opportunities to revisit the question of jury size. Perhaps it should accept the next one.
By: Seidman Diamond, The Miami Herald, July 15, 2013