The Unmentioned Precedent Established in the Voting Rights Act Decision of 2013: The Shelby County, Alabama v. Holder case

By a vote of 5 to 4 the Supreme Court has made its decision.  Depending on one’s political ideology, location in the country, and other factors including but not limited to race, you will hear shouts of joy and jubilation by some amongst the subtle sighs accompanying the bass drum effect of teardrops falling by others.  It’s clear why initial feelings would run this gamut.  Back in April, I wrote about the issue here.

That piece included a unique proposal in its conclusion:

“Why not change the 9 states named in Section 5 to include all 50 states?  It’s not as bizarre as it might sound.  Some argue that too many ineligibles are allowed to illegally cast votes.  Some argue that too many people are being disenfranchised whether through gerrymandering or being required to fulfill other requirements such as a photo ID.  If Section 5 were extended, individuals would not have to file single lawsuits to address either voter fraud or loss of their franchise right.  Those rights would immediately fall under Justice Department authority and could be addressed prior to injury regardless of if it concerned fraud or discrimination.

If fraud exists, then it most certainly is not confined to a particular precinct or even state.  If discrimination or disenfranchisement exist, it could happen anywhere and not just in 9 states and specific counties and townships because it happened there before.  Times are different, and the people are different.  Why not use an existing law, close loopholes so that it can be enforced, and use it curb instances of both fraud and disenfranchisement?”

Think about that in context of the ruling

What did the Supreme Court actually decide in SHELBY COUNTY, ALABAMA v. HOLDER, ATTORNEY GENERAL, ET AL.?

The Court did not strike down The Voting Rights Act of 1965.  In particular Section 2 remains the law of the land.   “Section 2 of the Act, which bans any ‘standard, practice, or procedure’ that ‘results in a denial or abridgement of the right of any citizen . . . to vote on account of race or color,’ 42 U. S. C. §1973(a), applies nationwide, is permanent, and is not at issue in this case.”

The Court Held that “Section 4 of the Voting Rights Act is unconstitutional; its formula can no longer be used as a basis for subjecting jurisdictions to preclearance.”  The Court did not find preclearance, meaning that specific states, counties, and townships needed authorization from the Federal government before enacting any changes to its voting or election procedures, as unconstitutional.  The Court found that the formula used by Congress in its 2006 renewal of the Act by votes of 98 to 0 in the Senate and 390 to 33 in the House and signed into law by President George W. Bush was unconstitutional.  This renewal extended the preclearance obligations until the year 2031.

As written in the decision syllabus:

“Coverage today is based on decades-old data and eradicated practices. The formula captures States by reference to literacy tests and low voter registration and turnout in the 1960s and early 1970s. But such tests have been banned for over 40 years. And voter registration and turnout numbers in covered States have risen dramatically. In 1965, the States could be divided into those with a recent history of voting tests and low voter registration and turnout and those without those characteristics. Congress based its coverage formula on that distinction. Today the Nation is no longer divided along those lines, yet the Voting Rights Act continues to treat it as if it were.”

Arguments opposed:

Justice Ginsburg in her dissenting opinion offers substantial insight into the need for preclearance.  I encourage everyone to read her opinion for details, but this quote may serve as a succinct summation.

“Throwing out preclearance when it has worked and is continuing to work to stop discriminatory changes is like throwing away your umbrella in a rainstorm because you are not getting wet.”

I also encourage everyone to read the concurring opinion of Justice Thomas who argued that Section 5 should have been declared unconstitutional as well.  His conclusion is a summation of his reasoning.

“While the Court claims to ‘issue no holding on §5 itself,’ ante, at 24, its own opinion compellingly demonstrates that Congress has failed to justify “‘current burdens’” with a record demonstrating “‘current needs.’” See ante, at 9 (quoting Northwest Austin, supra, at 203). By leaving the inevitable conclusion unstated, the Court needlessly prolongs the demise of that provision. For the reasons stated in the Court’s opinion, I would find §5 unconstitutional.”

To clarify, the Court’s decision is that all states will be treated equally in terms of voting and election procedures in accordance to provisions in the Constitution of the United States.  Actions which promote or allow discrimination or disenfranchisement are still illegal, but the burden of proof concerning illegality now falls upon the government or complainant regardless of location.  As such, cases will have to be argued independently even if the same methods are used by a separate jurisdiction.  Preclearance for making changes to an area’s voting or election procedures is not required.

None of the above changes from this ruling applies, however, if Congress creates a preclearance formula which reflects current conditions instead of relying upon what the Court deems outdated statistics and information.

Has a subtle precedent been established? 

Consider the following from the decision syllabus:

“Coverage today is based on decades-old data and eradicated practices. The formula captures States by reference to literacy tests and low voter registration and turnout in the 1960s and early 1970s. But such tests have been banned for over 40 years. And voter registration and turnout numbers in covered States have risen dramatically. In 1965, the States could be divided into those with a recent history of voting tests and low voter registration and turnout and those without those characteristics. Congress based its coverage formula on that distinction. Today the Nation is no longer divided along those lines, yet the Voting Rights Act continues to treat it as if it were. Pp. 17–18.

(2) The Government attempts to defend the formula on grounds that it is ‘reverse-engineered’—Congress identified the jurisdictions to be covered and then came up with criteria to describe them. Katzenbach did not sanction such an approach, reasoning instead that the coverage formula was rational because the ‘formula . . . was relevant to the problem.’ 383 U. S., at 329, 330. The Government has a fallback argument—because the formula was relevant in 1965, its continued use is permissible so long as any discrimination remains in the States identified in 1965. But this does not look to ‘current political conditions,’ Northwest Austin, supra, at 203, instead relying on a comparison between the States in 1965. But history did not end in 1965. In assessing the ‘current need [ ]’ for a preclearance system treating States differently from one another today, history since 1965 cannot be ignored. The Fifteenth Amendment is not designed to punish for the past; its purpose is to ensure a better future. To serve that purpose, Congress—if it is to divide the States—must identify those jurisdictions to be singled out on a basis that makes sense in light of current conditions. Pp. 18–21.

(3) Respondents also rely heavily on data from the record compiled by Congress before reauthorizing the Act. Regardless of how one looks at that record, no one can fairly say that it shows anything approaching the ‘pervasive,’ ‘flagrant,’ ‘widespread,’ and ‘rampant’ discrimination that clearly distinguished the covered jurisdictions from the rest of the Nation in 1965. Katzenbach, supra, at 308, 315,  331. But a more fundamental problem remains: Congress did not use that record to fashion a coverage formula grounded in current conditions. It instead re-enacted a formula based on 40-year-old facts having no logical relation to the present day. Pp. 21–22.”

The key is in the phrasing.

A. “Decades-old data and eradicated practices,”

B. “But history did not end in 1965. In assessing the ‘current need [ ]’ for a preclearance system treating States differently from one another today, history since 1965 cannot be ignored.

C. “But a more fundamental problem remains: Congress did not use that record to fashion a coverage formula grounded in current conditions. It instead re-enacted a formula based on 40-year-old facts having no logical relation to the present day.”

Justice Ginsburg writes of whether it is appropriate for the Court to provide its own conclusions in place of those of Congress in her dissent.  I’m not referring to that aspect.

The precedent to which I refer is “having no logical relation to the present day” as formulae or systems are based upon “decades-old data and eradicated practices.”

Chief Justice Roberts writes specifically,

“The Fifteenth Amendment is not designed to punish for the past; its purpose is to ensure a better future.”

As we know, the Fifteenth Amendment was the last of a group often referred to as the Civil War Amendments because of their content addressing issues surrounding that period and the aftermath of Reconstruction and more precisely the events often described as Radical Reconstruction.  For a basic understanding of the events of the period, I recommend two classic works:  Southern Politics in State and Nation, by V.O. Key, and Origins of the New South, 1877-1913, by C. Vann Woodward.

I believe that many would agree that Amendments to the Constitution were not ratified with intent to punish the past.  While limited like anything else in this world to knowledge and understanding at the time, those supporting the various Amendments did so in hopes of ensuring a better future.  I am not asserting or even insinuating that this specific decision by the Supreme Court addressed a Constitutional Amendment, the specific inclusion of the 15th beyond background information to the purpose of the Voting Rights Act of 1965 suggests a potential reassessment of any Constitutional Amendment.

While not declaring an Amendment as unconstitutional or enforcing the necessity of the passage of a subsequent Amendment to invalidate one ratified previously, the “logical relation to present day” aspect opens a new door.  “Decades-old data and eradicated practices” are not acceptable criteria upon which Congress can rely in the passage of any legislation.

What might that mean?

Consider the recent arguments over “gun control.”  The propelling argument used against expanded background checks was to cite the Second Amendment,

“A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.”

Do the generic arguments of “criminals won’t follow laws” acceptable criteria and of logical relation to present day?  If a legislative body passes any restriction upon who may purchase and what may be purchased, it is logical to think that enforcement of those restrictions is germane to the present day application.  The Second Amendment does not read “…the right of the people to keep and bear {any specific type of arms}, shall not be infringed.”  If Congress or a legislative body passes specific restrictions, but an individual meeting the current legal criteria to possess or purchase a weapon maintains the right to “bear” some form of arms, has the Amendment been abridged in the year 2013?  Likewise, does any type of background check used universally represent an infringement?  Are arguments against such restrictions based upon “decades-old data” and more importantly “eradicated practices?”

Requirements to vote...Requirements to buy a gun

Illustration credit: Mike Thompson Detroit Free Press

Consider the above Second Amendment questions with some of the legislation which has been passed by various states concerning voting, and in particular, the implementation of Voter ID laws.  What if the same criteria for voting were the same criteria applied to purchasing a weapon?   What if the required ID were some form of national ID?  Even without the recent spying stories in the news, have the feelings about a national database changed?  The recent decision concerning the Arizona law and even my home state of Louisiana have not addressed the continued uncertainty of what may or may not be considered a proper ID or what may or may not be needed to obtain an “acceptable” ID.

Again let me assert my beliefs that any voting requirements should be designed to prevent the casting of fraudulent ballots while affording the opportunity for anyone legally qualified to cast their ballot without any infringements or oppression.  My belief is that disenfranchisement or profiling in ways that restrict personal freedoms, but also the freedoms of others within the influence are wrong.  Again let me assert my position on that I view any weapon as a tool.  Used properly, the tool is a benefit.  When used carelessly or improperly, the results are unpleasant and the more powerful any tool is the more damage can be inflicted with neglectful usage.

In the grand scheme of things, will this ruling in Shelby change things?

Personally, I think the prudent reaction is for Congress to create a formula based upon current data and factors and apply that formula equally across all states and jurisdictions.  The issues of both fraud and disenfranchisement could be addressed within the same criteria.  In the meantime, I suspect that some jurisdictions will try to test this “new” freedom and place obstacles in place.  There will be individual lawsuits, and the most blatant obstacles will be struck down.  In those situations everyone loses.  The people who had their rights denied lose at first, but then those same people and everyone living in those jurisdictions, not just those individuals who created or enforced the laws, will be responsible for all the financial costs of both sides in the court of law.  I’m scared to even imagine what type of tax increase might be necessary to pay off those ill advised and self-created debts.

My personal hope is that Congress will act to create a formula based on current factors to protect the freedoms of all and not allow for the discrimination of certain individuals.  Sadly, discrimination and prejudice continue to exist as do jealousy and hatred.  The forms and methods of all differ with locations and with the ages, but the cloud remains just as dark.  Perhaps this ruling might shine some more light through that cloud.  Before anyone harks on making this about racial, gender, preference, or religious discrimination think about the subtle precedent aspect brought up earlier.  Depending on the issue, you might go from the profiler to the profiled.  The person discriminated against might not be the other person, but you.  It’s often difficult to imagine what it might be like walking in the steps of the other person.  The concept of what was must be justified to remain as what is may make what some have a difficult time imagining become a reality.  The difference is the reality will not be based on assumptions and rhetoric, but a reality in which both you and I live.

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One thought on “The Unmentioned Precedent Established in the Voting Rights Act Decision of 2013: The Shelby County, Alabama v. Holder case

  1. A few have questioned why I chose the 2nd Amendment as an example of how the possible precedent established could potentially be used. One is the obvious amount of attention currently on the issue. The other was an effort to highlight one of the most difficult parts of the study of history. That is being able to look at something through the eyes of the present, but to also place it within the context of the times in which events occurred. There is that difficult to obtain balance between “current needs” and “decades old practices.”

    This prior case focused on the Second Amendment. Even though many in the modern arguments choose to cite the Heller decision, I think that MCDONALD ET AL. v. CITY OF CHICAGO, ILLINOIS, ET AL, provides more applicable insight on many issues. In particular is the concurring opinion of Justice Thomas. Justice Thomas provides a brief march through history, and the importance of determining the mindset of given periods in his opinion.

    Linked is the 2010 decision. Justice Thomas’s opinion begins on page 67 of this pdf file. While this case may not be directly applicable in the eyes of some as a base for my contention of the possibility of the establishment of a new precedent, it does illustrate the subtle conflicts between protections afforded within the Bill of Rights and the incorporations of those protections from states via the Fourteenth Amendment. I highly recommend reading the remarks of Justice Thomas.

    http://www.supremecourt.gov/opinions/09pdf/08-1521.pdf

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