An Inconvenient Truth

Southern Regional Council Study Reveals Persistent Barriers to Voting which Justice Thomas Discounted

Chief Justice John Roberts was right about at least one thing. Writing for eight justices in Northwest Austin Utility District v. Holder, Justice Roberts acknowledged that, in the century following the civil war, the federal government’s protection of voting rights “can only be regarded as a failure.” Renewed efforts to enforce these rights in the 1950s and early 1960s were ineffective, he observed, because they depended on “slow and expensive” individual lawsuits filed by the Department of Justice. The litigation could not keep pace with the erection of creative new barriers to voting. Some jurisdictions adopted the practice of staying one step ahead of the federal courts by passing new discriminatory voting laws as soon as the old ones were struck down.

Congress finally responded in 1965 by passing the Voting Rights Act (the “Act”). Rather than continuing to depend on case-by-case litigation, Section 5 of the Act for a limited period directly pre-empted the most powerful tools of disenfranchisement in states with a history of exclusionary election practices. As extended by the Congress in 2006, Section 5 suspends all changes in state election procedures in those states until they are submitted to and approved by the Justice Department or by a federal court sitting in Washington.

The Northwest Austin case involved a local utility district which sought to be excused from the coverage of Section 5. A majority of the Supreme Court determined that, because the district (and any “political subdivision”) could apply for relief under the “bailout” provision of Section 5, it was not necessary for the Court to consider whether or not the continued use of Section 5 is justified by current needs.

In his dissenting opinion, Justice Clarence Thomas disagreed with the majority. He argued that the utility district should not be required to utilize the “bailout” process that the majority said was available. Rather, he suggested that Section 5 could no longer be justified and is that the Court should therefore declare it to be unconstitutional. In the course of his opinion, Justice Thomas acknowledged the history of coordinated intimidation and violence which prevented people from voting during the Jim Crow era. He acknowledged that this campaign of violence was eventually supplemented and in part replaced by more subtle methods of discrimination, such as discriminatory literacy tests and voter qualification laws. He acknowledged that case-by-case voting rights litigation in the years prior to the adoption of the Act was inadequate to ensure that all citizens were able to vote.

According to Justice Thomas, however, the kind of discrimination which previously justified Section 5 no longer exists. As proof, he noted that the systematic campaigns of intimidation and violence are gone, as are the discriminatory voter qualification laws. Although Congress had taken note of “second generation barriers” constructed to exclude minority voters, Justice Thomas concluded that evidence of such barriers was not sufficient to justify the continued use of Section 5.

Contrary to Justice Thomas’ assertion, barriers to voting continue to be erected in jurisdictions covered by Section 5. Evidence of these barriers is described in the Congressional record and in a recent study by the Southern Regional Council. This evidence demonstrates ongoing attempts to dilute and diminish minority voting strength, including restrictions on registration and voting, discriminatory annexations and de-annexations, high school diploma requirements for holding office, discriminatory consolidations, and relocation of polling places. The SRC Study cites the example of Long County, Georgia, where election officials in 2004 reportedly required Spanish-surnamed residents to prove their citizenship while imposing no similar requirement on other similarly-situated residents. The SRC Study also cites the example of Randolph County Georgia, where election officials in 2006 reportedly moved Henry Cook, the African American Chair of the County Board of Education, from District Five, which is majority black, to District Four, which is majority white, despite the fact that neither the district lines nor Cook’s residence had changed.

In the absence of Section 5, the discriminatory practices such as those reported in Randolph and Long Counties could only be addressed through slow and expensive litigation, which potentially would be concluded long after the elections in question have taken place. Section 5 provides a means of correcting abuses before they are placed into effect, and it is thus a more effective way to eradicate those barriers which have been shown to persist.

Statement Regarding Northwest Austin Utility District v. Holder

Immediate Release: June 23, 2009
Contact:

Leland Ware at 302-831-3930

Or

lware@udel.edu

Statement Regarding Northwest Austin Utility District v. Holder

In Northwest Austin Municipal Utility District Number One v. Holder, the Supreme Court yesterday ruled 8-1 to affirm the validity of Section 5 of the Voting Rights Act. The case involved a Constitutional and statutory challenge to Section 5, which requires “covered jurisdictions,” state and local governments, mostly in the South, to seek federal permission before making any changes to voting procedures.

Legislative hearings leading to the enactment of the Voting Rights Act showed that the federal government’s use of court cases to eliminate discriminatory election practices was ineffective; as soon as one discriminatory practice was proven to be unconstitutional, a new one would be substituted requiring another round of lengthy and time consuming litigation.

The law was enacted in 1965 after Congress found that case-by-case litigation was inadequate to combat wide-spread discrimination in voting in the South. After nearly a century of systematic resistance to the Fifteenth Amendment, Congress decided to shift the burden of proof from the victims the evil to the perpetrators, who are obligated to demonstrate their compliance with the law. Six southern states are covered, as are a number of counties in several other states. Congress reauthorized the law in 2006.

Invoking the doctrine of “constitutional avoidance,” which states that cases should be resolved on non-constitutional grounds, if possible, the Court's majority ruled against the Utility District on narrow, statutory grounds.

The Court held that the Texas Utility District was eligible to take advantage of the “bailout” provisions of Section 5 by showing that it has not violated voting rights for the past 10 years. The lower court had ruled that the some political subdivisions such as the Utility District were not eligible to take advantage of the bailout provisions. The Supreme Court held that all political subdivisions are eligible.

Chief Justice Roberts’s skeptical questioning during the argument, and other indications suggested to many observers that the Court might strike down Section 5. That turned out not to be the case, but Roberts’ majority opinion expressed reservations, stating that America is a “very different nation” than it was in 1965.

Justice Clarence Thomas, the Court’s only African-American member, dissented from the ruling, stating that he would have taken on the constitutional issue and struck down Section 5. He believes that extensive pattern of discrimination that justified the original law no longer exists.

The actual evidence does not support Justice Thomas' assertion. Congressional hearings held during the 2006 reauthorization showed that wide spread abuses persist. The voter protections accorded under Section 5 are still needed.

###

About the Author: Leland Ware, a member of the Board of the Southern Regional Council, is Louis B. Redding Chair and Professor for the Study of Law and Public Policy at the University of Delaware. He is the author of numerous publications, and he served as co-editor of the recently-published volume, Choosing Equality: Essays and Narratives on the Desegregation Experience.

Justices teeter on edge in voting rights ruling

While not striking preclearance section of act, high court leaves door open for district to get out from under the law

By Tony Mauro, National Law Journal

The U.S. Supreme Court on Monday stepped back from a major showdown over the constitutionality of the Voting Rights Act, ruling instead that because jurisdictions covered by the law can seek to be exempted from its provisions, it was unnecessary for the Court to decide whether the statute should be scrapped altogether.

The 8-1 ruling in Northwest Austin Municipal Utility District Number One v. Holder both surprised and pleased civil rights advocates, who were nearly certain after April oral arguments that the court was poised to strike down the law outright, eliminating what they view as a crucial weapon in the struggle for political equality. They feared that the law's success—symbolized by the election of an African-American president last November—would be the law's undoing, even though they argue it is still needed in some parts of the country.

“Without its protections, our nation would unnecessarily face the grave risk of significant backsliding and retrenchment,” said John Payton, president of the NAACP Legal Defense and Educational Fund, which participated in arguments in the case. “In light of the oral arguments, I am surprised there weren't seven different opinions going back and forth, there weren't five justices to say it was unconstitutional.”

Attorney General Eric Holder Jr. said Monday that the ruling “marks a victory for voting rights in America.” He added in a statement, “As a nation, we have made great strides in advancing and protecting civil rights in the past 44 years since the Voting Rights Act was first passed. But there is still more work to be done to fulfill the promise of full voting rights, free from discrimination, for all Americans.”

Also on June 22, the court ruled against environmental groups in a Clean Water Act case, Coeur Alaska Inc. v. Southeast Alaska Conservation Council, and in favor of special education advocates in Forest Grove School District v. T.A. With seven cases left to rule on before the term ends, the court will return to the bench Thursday and may adjourn for the summer after announcing decisions next Monday.

Chief Justice John Roberts Jr. wrote the opinion in the Voting Rights Act case for a surprisingly harmonious majority, alternating between praise for the law's success in increasing minority voting and skepticism about whether the part of the law in dispute is still needed. Under that preclearance provision, Section 5, covered jurisdictions mainly in the South, must seek Justice Department approval before implementing any change in election law or procedure that might dilute minority voting strength. The law was challenged in something of a test case by a Texas utility district with no record of voting discrimination.

“Things have changed in the South. Voter turnout and registration rates now approach parity,” wrote Roberts, adding that “Past success alone ... is not adequate justification to retain the preclearance requirements. ... [T]he act imposes current burdens that must be justified by current needs.” Elsewhere in the opinion, Roberts wrote that the preclearance requirement raises “serious constitutional questions” and impinges on the equal sovereignty of states.

In spite of those questions, the court stopped short of ruling on Section 5's constitutionality, invoking the doctrine of “constitutional avoidance,” under which the court will resolve a dispute on other grounds, if available. In this instance, the alternate avenue is for the Texas utility district to seek a “bailout” from the preclearance requirement by convincing a three-judge panel that it has not violated voting rights for the past 10 years. The lower court had ruled that, under the wording of the law, some political subdivisions like the utility district were not eligible for bailouts. But the Roberts ruling said all political subdivisions are eligible—opening the door for the Texas district and others like it to get out from under the law.

Justice Clarence Thomas, the court's only African-American member, dissented from the ruling, stating that he would have taken on the constitutional issue and struck down Section 5. “The extensive pattern of discrimination that led the court to previously uphold Section 5 ... no longer exists,” Thomas wrote. Admitting that the law is no longer constitutionally justified, he wrote, “is not a sign of defeat. It is an acknowledgment of victory.”

Payton said the court's focus on the bailout provision does not necessarily mean “there will be a stampede” of jurisdictions seeking to be freed from the preclearance provisions. He was also unfazed by the fact that seven justices—liberals and conservatives—joined Roberts' majority ruling that expressed serious doubt about the law's constitutionality. However grudging the majority's tone, Payton said, the fact that the court avoided striking down Section 5 when it easily could have done so is significant.

But others saw danger in the court's critical words, which could form the basis of a future challenge to the law. “The Supreme Court backed one step away from a very steep cliff today,” said Doug Kendall, president of the Constitutional Accountability Center, which filed a brief in the case supporting Section 5. “However, the court remained close to the edge.”

Former Federal Election Commission chairman Michael Toner, who now heads election law litigation at Bryan Cave, said he too was struck by that fact that “eight justices were willing to sign on to an opinion” containing such criticism of the statute. “I would not have predicted that Justice [David] Souter or [Stephen] Breyer would agree to that.” He predicted the constitutional issue “will come around again,” possibly even in the same case if the Texas utility district's bailout request is denied.

Gregory Coleman of Yetter, Warden & Coleman's Austin, Texas, office, who represented the utility district in the case, could not be reached for comment.

Sharon Browne of the Pacific Legal Foundation, which supported the challenge to the law, expressed disappointment in a statement Monday. “The structure of overbearing federal intrusion in other local elections remains in place. So the court stopped short of its duty to defend the constitutional principle that federal power is and should be strictly limited.”

Statement of President Obama on the Occasion of Juneteenth

FOR IMMEDIATE RELEASE
June 19, 2009

STATEMENT FROM PRESIDENT OBAMA ON THE OCCASION OF JUNETEENTH

On this day in 1865, more than two years after President Lincoln signed the Emancipation Proclamation, those who found themselves still enslaved in Galveston, Texas had their hopes realized and their prayers answered. Contrary to what others had told them, the rumors they had heard were indeed true. The Civil War had ended, and they were now free.

General Gordon Granger issued the call with “General Order No. 3” saying “The people of Texas are informed that, in accordance with a proclamation from the Executive of the United States, all slaves are free. “ June 19, or Juneteenth, is now observed in 31 states. Nearly a century and a half later, the descendants of slaves and slave owners can commemorate the day together and celebrate the rights and freedoms we all share in this great nation that we all love.

This moment also serves as a time for reflection and appreciation, and an opportunity for many people to trace their family’s lineage. African Americans helped to build our nation brick by brick and have contributed to her growth in every way, even when rights and liberties were denied to them. In light of the historic unanimous vote in the United States Senate this week supporting the call for an apology for slavery and segregation, the occasion carries even more significance.

##

Justice Department Rejects Georgia's System for Screening Voters

Feds spike voter citizenship checks in Georgia
By SHANNON McCAFFREY, Associated Press writer

ATLANTA (AP) — The Justice Department has rejected Georgia's system of using Social Security numbers and driver's license data to check whether prospective voters are citizens, a process that was a subject of a federal lawsuit in the weeks leading up to November's election.

In a letter released on Monday, the Justice Department said the state's voter verification program is frequently inaccurate and has a "discriminatory effect" on minority voters. The decision means Georgia must halt the citizenship checks, although the state can still ask the Justice Department to reconsider, according to the letter and to the Georgia secretary of state's office.

"This flawed system frequently subjects a disproportionate number of African-American, Asian and/or Hispanic voters to additional, and more importantly, erroneous burdens on the right to register to vote," Loretta King, acting assistant attorney general of the Justice Department's civil rights division, said. King's letter was sent to Georgia Attorney General Thurbert Baker on Friday.

The decision comes as Georgia awaits word on whether a law passed in the spring that requires newly registering voters to show proof of citizenship will pass muster with DOJ. Under the law that takes effect in January, people must show their proof up front compared to doing checks through databases.

A three-judge federal panel in October ordered the state to seek Justice Department preclearance for the checks under the Voting Rights Act of 1965, the same reason the federal agency must sign off on the new law that made Georgia only the second state after Arizona to require such proof. Georgia is one of several states that need federal approval before changing election rules because of a history of discriminatory Jim Crow-era voting practices.

Secretary of State Karen Handel blasted DOJ's decision, saying it opens the floodgates for non-citizens to vote in the state.

"Clearly, politics took priority over common sense and good public policy," said Handel, a Republican candidate for governor in 2010.

Justice Department officials said the citizenship match through driver's license and Social Security data has flagged 7,007 individuals as non-citizens but that many have been shown to be in error.

"Thousands of citizens who are in fact eligible to vote under Georgia law have been flagged," the Justice Department letter said.

The Justice Department decision marks the first time the new Democratic Obama administration has weighed in on Georgia's election laws. It is also the first time the Justice Department has rejected a change in election procedures by Georgia since the 1990s, according to a spokesman for the Georgia attorney general.

"We are pleased with this decision," said Elise Shore, Southeastern Regional Counsel of the Mexican American Legal Defense and Educational Fund. "It vindicates our filing of the lawsuit.

"But Handel said that more than 2,100 people who attempted to register in Georgia still have not resolved questions regarding their citizenship. Her office's inspector general is investigating more than 30 cases of non-citizens casting ballots in Georgia elections, including the case of a Henry County non-citizen who said she registered to vote and cast ballots in 2004 and 2006.

Handel said the checks were designed to follow federal guidelines to ensure the integrity of the vote and that those eligible are casting ballots.

But the ACLU and the Mexican American defense fund sued, saying the efforts amounted to a "systematic purging" of rolls just weeks before the election.

Separately, the U.S., Supreme Court is considering a challenge to the portion of the Voting Rights Act requiring Georgia and select other states to seek approval before tinkering with election law.