Today, the US Supreme Court heard arguments in two cases that confront the role that race should play in determining legislative districts. Bethune-Hill v. Virginia State Board of Elections, concerned with Virginia state legislative districts, and McCrory v. Harris, focused on North Carolina congressional districts, ask the Court to clarify the law on racial gerrymandering. While these cases and others involving redistricting are multi-faceted and complicated from a legal perspective, they all essentially ask how an individual’s vote should be counted. The National Council of Jewish Women (NCJW) believes no vote should be diluted, because a representative democracy should truly mirror its people. Read more
The stakes could hardly be higher. Not just one, or two, but even four Supreme Court seats could be filled by the next president in his or her first term. These future appointments will be transformative, on a scale rarely seen before. For many of us, they will determine what our Constitution means for the rest of our lives.
That’s why it’s urgent that when the presidential candidates meet for their first debate on Sept. 26, they be asked to clearly define their views on appointing Supreme Court justices. With one vacancy on on the Court, long overdue to be filled, and three more justices who will be in their 80’s in the next president’s first term, the Supreme Court is inescapably one of the most important issues in the 2016 election. Read more
On June 25, 2013, in its notorious decision Shelby County v. Holder, the Supreme Court dismantled the Voting Rights Act, one of the most important and effective civil rights laws in our nation’s history.
The pending Voting Rights Amendment Act (VRAA) would help restore some of the voting protections that were lost in Shelby County, but, despite its bipartisan support, Republican leadership has balked at moving it forward. So on June 25 of this year, precisely two years after Shelby County was decided, hundreds of activists from dozens of organizations joined together near the Roanoke, Va., office of House Judiciary Committee Chairman Bob Goodlatte, R-Va., to demand full restoration of the Voting Rights Act. Among those at the “Rally for Voting Rights and Our Democracy” was Alliance for Justice summer associate Blake Paradis, who recounts her experience below.
At 7:00 a.m., I arrived at Union Station to find four busloads of activists ready to revive the Voting Rights Act. Organized by The Leadership Conference on Civil and Human Rights, groups representing the span of environmental, labor, civil rights, and others shared stories, practiced chants, and connected over the course of a four-hour bus ride. Although we represented groups with different constituencies and different priorities, everyone was committed to restoring the essential voter protections that the Supreme Court cast aside in Shelby County.
Upon arriving in Roanoke, we were warmly greeted with cheers and applause from locals thanking us for our support. Speakers at the rally described the significance of democracy for all of our initiatives and pushed us to engage our communities. Looking at the vast diversity among us, it was hard not to feel inspired. Media stations from around the country covered the rally, from social media and local news to the Ed Show on MSNBC, media outlets displayed our call to restore the Voting Rights Act.
Congressman Goodlatte has said that an update to the Voting Rights Act is unnecessary unless new evidence of voter discrimination surfaces, but the activists in Roanoke, congressional leaders, and voters navigating an ever-expanding list of restrictive ballot access laws all know how badly a fix is needed. The day after our rally, Senator Patrick Leahy, D-Vt. introduced a new piece of reform legislation, the Voting Rights Advancement Act of 2015, with House leaders from the Black Caucus, Hispanic Caucus, and Asian Pacific American Caucus.
After the Supreme Court gutted sections 4 and 5 of the Voting Rights Act in Shelby County v. Holder, Congress began working on the Voting Rights Amendment Act. But it quickly became clear that Republican leadership in Congress would not support an amendment. So instead, Senator Leahy introduced the Voting Rights Advancement Act of 2015 to provide a more comprehensive set of voter protections than proposed in the VRAA. The new legislation also responds directly to the concerns identified by the Supreme Court in Shelby County. “The previous bill we did in a way to try and get bipartisan support—which we did,” Senator Leahy told The Nation. “We had the Republican majority leader of the House [Eric Cantor] promise us that if we kept it like that it would come up for a vote. It never did. . . . So this time I decided to listen to the voters who had their right to vote blocked.” The new bill requires the Department of Justice to pre-approve changes to voting laws in states that have had 15 voting violations in the past 25 years, provides greater transparency in elections, and gives federal courts the ability to force states to obtain preclearance if voting changes are found to be discriminatory.
The activists I met in Roanoke have vowed to stay vigilant protecting voters in their communities, and they’re not alone. Rallies like the one I attended are expanding all across the country. Momentum is building to restore the VRA. The words Miles Rapoport, president of Common Cause, shared at the event are hitting home to Americans across ideological and political spectrums: “we want to live in a democracy where people select their representation, not one where representatives get to choose who can vote.”
Last week, the Supreme Court heard oral arguments in the consolidated appeals of Alabama Legislative Black Caucus v. Alabama and Alabama Democratic Conference v. Alabama. The cases are being watched closely by states, political parties and voting rights advocates because they raise thorny issues of when, and to what degree, race can or cannot be used by state legislatures in drawing district lines.
At issue are Alabama House and Senate district plans that were adopted based on the 2010 Census and in the wake of the 2010
general election that gave Republicans a super-majority in both houses. The plans maintained both the same number of “majority-minority” districts and the same percentages of African Americans within those districts as existed under the previous districting plan.
Under the Voting Rights Act, race-conscious line drawing has long played a proper role in redistricting to guard against the fragmentation or packing of minority populations, and to provide minority voters an opportunity to elect candidates of their choice where they would otherwise be prevented from doing so by racial bloc voting and other electoral factors. Majority-minority districts are presumptively constitutional unless it can be established that traditional districting considerations were subordinated to race in the drawing of the plan, and even then, the plan must fail to meet strict scrutiny in order to be held unconstitutional.
The plaintiffs in the cases heard by the Court on Wednesday do not challenge the legislators’ decision to retain the existing number of majority-minority districts. Instead, they argue that the Alabama Legislature used race as the predominant factor in setting unconstitutional “racial targets,” which mandated that pre-existing majority-minority districts be maintained with the same African American percentages—regardless of whether such percentages were necessary to give minority voters the opportunity to elect candidates of their choice. The State claimed this policy was mandated by the non-retrogression standard under Section 5 of the Voting Rights Act, which prohibits covered jurisdictions from enacting new districting plans that make it more difficult for minority voters to elect candidates of their choice.
Coupled with the State’s decision to keep district populations within two percent of each other, which the State argued was set to comply with the constitutional requirement of “one person, one vote,” the State’s decision to retain existing demographics in the districts resulted in shifting large numbers of African Americans into under-populated majority-minority districts under the plans. According to the plaintiffs, this had the effect of preventing African Americans from forming voting coalitions with white Democrats and other racial minorities outside of the majority-minority districts.
The Court has at least three possible ways to resolve the case: 1) affirm the district court’s decision which denied the plaintiffs any relief; 2) remand the case to district court for further proceedings; or, 3) reverse the district court altogether and determine that Alabama’s redistricting plans constituted a racial gerrymander. Based on the justices’ questions and comments during the argument, it appears most likely the Court will affirm the district court’s decision or remand the case.
Chief Justice John Roberts and Justice Antonin Scalia appeared sympathetic to Alabama’s contention that it retained the same percentages of African Americans in majority-minority districts to avoid problems under the non-retrogression standard of Section 5 of the Voting Rights Act. Justices Elena Kagan and Ruth Bader Ginsburg, on the other hand, did not view the argument favorably.
Although the State of Alabama never expressly stated that its use of racial targets was a partisan effort to shore up the Republican super-majority’s chances for reelection, several justices, including Justices Scalia and Anthony Kennedy, appeared to hold the view that the legislature’s plans may have been adopted for such partisan, rather than racially discriminatory, reasons.
Justice Stephen Breyer suggested that the Court could remand the case to determine on a district by district basis whether the State’s redistricting plans were, in fact, enacted for the legitimate purpose of complying with Section 5 of the Voting Rights Act.
Justice Samuel Alito questioned whether the Alabama Legislative Black Caucus plaintiffs had made district-specific challenges to the plans in the District Court, which are typical in cases of racial gerrymandering. If the State’s redistricting plans are determined to be constitutionally infirm, the Alabama Legislature will be given the first opportunity to redraw the plans. In that event, the State will be unable to rely on Section 5 of the Voting Rights Act as justification for any districts drawn in future plans since, under the Court’s Shelby County v. Holder decision, the State is no longer subject to that provision.
The irony here is how the State of Alabama seeks to have it both ways: It justifies its redistricting plan through Section 5 of the Voting Rights Act, which it successfully sought to nullify as an amicus in Shelby County. To accept the State’s argument, as the Lawyers’ Committee argued in our amicus brief, would paradoxically make Section 5 both “dead and alive” in redistricting cases. The Lawyers’ Committee believes that an appropriate disposition would be for the Supreme Court to remand the case to the district court for reconsideration of the racial gerrymandering issue under the proper legal standards.
By Trevor Boeckmann
AFJ Dorot Fellow
At 8:00 a.m. this morning, Ohio residents were supposed to be able to go to the polls to begin early voting for November’s general election. Ohio’s policies had been a voting success story of the past decade. In 2004, long lines that stretched into the early morning led to as many as 130,000 voters being turned away from or leaving the polls. The Ohio legislature, responded with reforms designed to expand voting times, days, and registration opportunities. By 2008, 1.7 million Ohioans—nearly 30 percent of the state’s voters—were casting their ballots before Election Day.
But yesterday, by a 5-4 vote, the Supreme Court shut down today’s early voting.
Large early voting turnout in Ohio meant more low-income and minority voters, most of whom were voting for Democratic candidates. Ohio Republicans began to question the earlier reforms. In 2014, the Ohio legislature enacted a new set of voter suppression laws designed to cut back on early voting and voter registration opportunities. Earlier this month, both a federal district court judge and a three-judge panel of the Sixth Circuit Court of Appeals enjoined the law to prevent it from being enforced this year. The state’s attorney general filed a last-minute appeal to the Supreme Court. Late yesterday afternoon, the appeal was granted by the Court’s conservative wing: Justices Roberts, Scalia, Kennedy, Thomas, and Alito. There will be no early voting in Ohio today.
The changes Ohio is implementing have one purpose and one purpose only: to make it harder for minorities and poor people to vote. The Sixth Circuit saw through this sham. Unfortunately, the Supreme Court majority has chosen to weigh in on the side of voter suppression.”
The most incredible part of both the state’s appeal and the Court’s ruling is the fact that early voting imposed no burden on the state. State officials had already set up the voting locations, provided staff, and promoted the opportunity across the state. The Court’s ruling will not save Ohio taxpayers a dime; it will only confuse voters.
The Ohio case is just the first of a spate of new challenges to restrictive voting laws set to go into place for November’s election. In Wisconsin, a three-judge panel of the Seventh Circuit Court of Appeals upheld a strict new voter identification law. Today, 300,000 Wisconsinites lack the photo IDs they will need to vote on Election Day. More than 12,000 absentee ballots already have been mailed without instructions telling voters they will now need to send a photocopy of their photo ID in order to have their votes counted. Last week, by a 5-5 vote, the entire 10-member Seventh Circuit court declined to review the decision.
In North Carolina, a decision is pending in the Fourth Circuit Court of Appeals over an expansive new law that would:
● Reduce early voting, eliminate same-day voter registration;
●Institute new photo ID requirements;
●Discard the ballots of voters who accidentally show up at the wrong precinct;
●Eliminate the ability of election boards to extend poll hours during “extraordinary circumstances” such as long lines;
●End voter registration for 16 and 17 year olds.
Election law scholar Rick Hasen called the law “the most sweeping anti-voter law in at least decades.”
Kansas and Arizona are trying to enact new voter ID laws that require proof of citizenship. A decision on their legality is currently pending before the Tenth Circuit Court of Appeals. In Texas, a trial ended last week in a federal district court case over another voter ID law.
The stakes in these cases could not be higher. Since the Supreme Court invalidated section 5 of the Voting Rights Act last year in Shelby County v. Holder, states freed from that law’s “preclearance” requirements have aggressively imposed new restrictions designed to suppress voter turnout, particularly in poor and minority communities. And this is just the beginning. With the 2016 presidential election looming, these cases will set the baselines for new restrictive voting laws that could be proposed across the country. It is imperative that the courts—and Congress—act to protect the most important right in our democracy. It is a shame the Supreme Court decided not to do so in Ohio yesterday.
By Michelle D. Schwartz, Director of Justice Programs
After a Supreme Court majority issued an opinion striking at the heart of the Voting Rights Act last summer, we called on Congress to act, notwithstanding the many people (perhaps including Chief Justice John Roberts, who authored that opinion) who doubted whether they would—or even could.
Today, a group of members of Congress took a critical first step toward silencing the doubters. Rep. Jim Sensenbrenner, R-Wis., Rep. John Conyers, D-Mich, and Sen. Patrick Leahy, D-Vt.,led the introduction of legislation to restore the Voting Rights Act. As has been the case with every other Voting Rights Act,, this is a bipartisan effort, with additional House cosponsors including Rep. John Lewis, D-Ga.,, Rep. Steve Chabot, R-Ohio, Rep. Spencer Bachus, R-Ala., Rep. Bobby Scott, D-Va. and Rep. Sheila Jackson Lee, D-Texas We applaud them all for coming together to protect our fundamental rights.
Introduction of this bill signals a recognition by people who don’t typically get along—senators and house members, Democrats and Republicans—that our democracy remains imperfect, that people are still denied the right to vote based on the color of their skin, and that voting is special because every single other right depends upon the right to vote. As AFJ President Nan Aron said following the Supreme Court’s decision in Shelby County v. Holder: “Attempts to suppress the vote were common during the 2012 presidential election, and they continue to this day.”
The Voting Rights Amendment Act of 2014 is not perfect. For example, the bill needs to do more to protect minority voters from the most common and widespread recent attempt to deny them the right to vote: restrictive, unnecessary voter ID laws. We
look forward to working with the cosponsors to strengthen the bill.