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< | Reimagining the Utility of Section 2 in the Wake of Shelby County |
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> | Swimming Against the Tide |
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< | -- By NicoGurian - 17 May 2015 |
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> | -- By NicoGurian - 17 June 2015 |
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< | Effictiveness of Section 5 pre-Shelby County |
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> | Advocates for social justice face a Supreme Court openly hostile to civil rights, worker rights, and environmental protections, and just as openly subservient to corporate interests. A court that produces Citizens United and Shelby County is a court prepared to pursue its regressive agenda no matter what. |
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< | Before the Supreme Court’s ruling in Shelby County v. Holder, the preclearance regime established by §5 of the Voting Rights Act required covered jurisdictions to submit proposed changes in voting laws or procedures to the Department of Justice (“DOJ”) for approval. A change would be approved unless the DOJ found the proposed change had “the purpose [or]…the effect of denying or abridging the right to vote on account of race or color.” 42 U.S.C §1973c(a). Alternatively, a covered jurisdiction could seek approval from a three-judge District Court in the District of Columbia. Id. Section 5’s preclearance regime was incredibly effective. For instance, in the 15 years before Shelby County, the DOJ rejected 86 attempted changes to voting laws in covered jurisdictions. In a recent six-year period, 262 voting changes were withdrawn or altered after the Department of Justice (DOJ) asked the jurisdictions for more information to assess whether they were discriminatory. This effectiveness helps explain why Justice Ginsburg characterized the Voting Rights Act as “one of the most consequential, efficacious, and amply justified exercises of federal legislative power in our Nation’s history.” Shelby County, Ala. v. Holder, 133 S.Ct. 2612, 2634 (2013) (Ginsburg, J. dissenting). |
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> | This is not, however, the first time advocates have faced such long odds. When Albion Tourgée and his colleagues agreed to represent Homer Plessy, they neither deluded themselves about the ideology of the judges on the court nor were naïve about the way power -- regardless of what the right “neutral” legal answer may be –- is wielded. Yet Tourgée went forward, determined not to accede passively to the assertion of white supremacy and equally determined to create a record for the future. Though he lost the case, Tourgée was able to convince Justice Harlan, whose dissent laid the foundation for the court’s decision in Brown v. Board of Education decades later. |
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< | Ramifications of Shelby County |
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< | In its decision in Shelby County, however, the court essentially gutted the operability of Section 5 by holding that the formula used to determine which jurisdictions Section 5 covers was unconstitutional. Justice Ginsburg compared the majority’s decision to do away with preclearance because it has worked so well to “throwing away your umbrella in a rainstorm because you are not getting wet.” Id at 2650. Her description rang true, as formerly covered states moved to enact voting laws that would not have been approved under preclearance immediately after the court’s decision. For instance, Texas officials announced on the day after the ruling that they would implement a voter ID law that had been blocked by Section 5. |
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> | I. What is to be done? |
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< | Current Section 2 Approach |
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> | Knowing that there are both neutral reasons openly given and also cloaked power-based reasons for a court’s decision simply does not answer the question, applicable both in 1897 and today, “So what do you do when facing a court that is generally or always hostile?” Sometimes, of course, tools outside the courtroom are called for, such as grassroots political campaigning or legislative advocacy. |
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< | The gutting of Section 5 means that the only avenue left for litigation under the Voting Rights Act is Section 2. Traditionally, Section 2 has been used for vote dilution cases, challenging illegal gerrymandering and redistricting. See e.g. Thornburg v. Gingles, 478 U.S. 30 (1986). Given the inoperability of Section 5, however, advocates need to try and reimagine Section 2 to combat vote denial problems, such as voter ID laws. While the Supreme Court has not heard a Section 2 vote denial case, many federal circuit courts have. See, e.g., NAACP v. Husted, 768 F.3d 524 (7th Cir. 2014), League of Women Voters of Ohio v. Brunner, 548 F.3d 463 (6th. Cir. 2008), Gonzalez v. Arizona, 624 F.3d 1162 (2010). These circuit decisions have all adopted a two-prong test that plaintiffs must meet to prove a Section 2 vote denial claim. First, plaintiffs must show that the law has a disparate impact on a protected class. Second, plaintiffs must demonstrate that the “burden of the challenged regulation must in part be caused by or linked to ‘social and historical conditions’ that have or currently produce discrimination against members of the protected class.” Husted, 768 F.3d 524 at 554. |
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> | But there are other circumstances that demand that the strategy include aggressive, litigation-based responses. Section 5 of the Voting Rights Act had been an extraordinarily effective tool (it was that very effectiveness that made it a target of the Roberts Court). There is no doubt that the court’s decision in Shelby County was devastating to the voting rights of millions of Americans -- particularly black Americans in the former Confederacy. The decision was particularly disingenuous in arguing that the scourge of voter oppression had been cured years ago. |
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< | The formula developed by the circuits is not ideal. First, requiring plaintiffs to prove that the burden of the challenged regulation must be causally linked to social and historical conditions places too high of an evidentiary burden on private plaintiffs. In Husted, for instance, the NAACP hired multiple expert witnesses to put together in-depth statistical studies analyzing the relationship between past discriminatory policies of the state of Ohio and the proposed changes to Early-In-Person voting. For private plaintiffs not selected as test clients by large organizations, meeting that burden of proof will be prohibitively difficult. Second, the Supreme Court demonstrated its reluctance in its decision in Shelby in the use of historical data, which the test developed by the circuit requires. |
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> | The response for lawyers is not to throw up our hands and give up. Rather, we must work to come up with creative ways to build a record of violations so strong that either a Justice Kennedy is persuaded to enforce the law (as he is from time from time) or else that many more people will come to understand that the court’s actions cannot be understood as neutral legal analysis. |
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< | Rethinking Section 2 by adopting Section 5 standards |
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> | One way for voting rights lawyers to be creative is in broadening their claims, even as they recognize the court remains hostile, including the hostility it showed in Shelby to the use of historical data. |
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< | Instead, Section 2 plaintiffs should argue for the Court to use a two-pronged test that first looks to see if the challenged law has a disparate impact on a protected class, and then use the retrogressive-effect standard from Section 5. Under this analysis, the relevant inquiry simply becomes whether the challenged law makes it more difficult for African-Americans to participate in the political process as compared with their ability to do so without the law. It is true that there are differences between Section 2 and Section 5. Section 5 places the burden of proving the validity of a law on the jurisdiction; Section 2 requires the plaintiff to prove a law invalid. Section 5 prevents laws from going into effect; Section 2 primarily grants relief from laws already in effect. Section 5 claims are advanced by the DOJ; private parties advance Section 2 claims. However, these are mostly procedural differences and are outweighed by substantive similarities. |
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< | First, the plain text of Section 2 and Section 5 are almost identical, both prohibiting the “denial” or “abridging” of the right to vote. Second, it is possible that the Court might be receptive to this line of reasoning. Justice Kennedy, the Court’s swing vote, said at oral argument in Shelby “it is not clear to me that there is much difference in a Section suit now and preclearance.” Third, this new standard would reduce the evidentiary burden on plaintiffs, and avoid reliance on historical data that the Court is disinclined to find persuasive. Finally, this new standard would be efficient because courts have experience applying the Section 5 framework, and Section 2 cases “are among the most difficult cases tried in federal court.” |
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> | II. Using Arlington Heights |
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< | The neutering of Section 5 by the court in Shelby has opened the door to discriminatory voting restrictions once easily prevented. Section 2 is now going to have to do much more work than perhaps it was intended to do. A creative approach to its application, however, will help to at least plug part of the whole created by the Court in Shelby. |
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> | There is, however, precedent for the use of historical data, as well as other aspects of official decision-making, as evidentiary sources to prove intentional discrimination. Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 267 (1977). Since intentional discrimination is in fact much closer to what many of these former Confederate states are actually practicing through their voter identification laws, the multi-factor Arlington Heights intent test might serve as a good foundation for bringing 15th Amendment claims side-by-side with Section 2 cases. |
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> | Arlington Heights laid out several factors that could reveal an invidious purpose behind official actions. One such factor is if an official decision represents a “substantive departure” from normal procedural sequence, “particularly if the factors usually considered important” favor a decision contrary to the one reached. Id. The intrusive nature of voter identification laws represents a “substantive departure” from the normal perspective of conservative legislators to always oppose governmental intervention. For instance, the day after the Court decided Shelby County, Texas officials announced they would implement a voter ID law that had previously been blocked by Section 5 of the Voting Rights Act. Texas Governor Greg Abbot supports this measure, despite the fact that on almost every other issue he opposes government regulation. For example, his main talking points on his campaign website include “End Obamacare;” and “Rein in EPA.” |
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> | Another Arlington Heights factor is “historical background of the decision…particularly if it reveals a series of official actions taken for invidious purposes.” Id. Not only should voting rights lawyers looks backwards to practices from the time before Section 5, they should also look at the pattern of many states making multiple efforts to restrict the franchise post-Shelby County. |
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< | This is a suggestion too clever by half. The reasons why Section 5 doctrine won't be imported into Section 2 cases are of two kinds: good neutral reasons, of which you yourself have supplied the right ones; and the real reason, which is to make things harder for Democrats, who—in the parts of the United States that most completely lost the Civil War—are increasingly just black people. Given the real reasons and also the quite satisfactory legal reasons you have yourself given, you should have decided this was one of those good ideas that doesn't work. |
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> | Interestingly, the presence of a disparate impact is another Arlington Heights intent factor, consistent with the principle that one intends the natural consequences of one’s actions. Impact alone is not enough but it can be powerful evidence. For instance, a month after Shelby County, North Carolina passed one of the country’s most sweeping voting restriction laws. A new report estimates that that these new restrictions reduced turnout by at least 30,000 voters in the 2014 election. Black voters were disproportionately affected: blacks comprised only 22 percent of registered voters but comprised 38 percent of the ballots that were rejected. This level of impact, along with the other factors, “should” be enough to prove intentional discrimination. |
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< | The composition of the Supreme Court is an important practical issue in the conduct of partisan politics in the United States, I hear. Maybe more so than usual at the moment. Those who believe that "constitutional law" is a subject of its own, among whom you know I am not, are going to have a confusing time in the next few years. |
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> | III. Audiences Outside the Courtroom |
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> | That argument may well fail of course. Yet the court is not the only audience for legal arguments. Arguments lost in court can still generate political activism. And, while many of us in the class readily accept the premises that judges can act for lawless reasons and that constitutional law is not a “separate subject,” many people do not. We should not write them off, and lecturing them directly about how power truly works is unlikely to make new allies. Perhaps more effective would be putting evidence in front of them that they expect would persuade a neutral court. If the evidence is rejected, it will then be easier to take that person to the next step of seeing a court’s political agenda.
Fighting back through creative legal arguments is not the only approach. But there is real merit in trying to do so. Having now begun to work as a social justice lawyer, I do not want to leave the arguments of the rights-deniers uncontested. |
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