Lecture 48 Voting and Representation II Voting Rights

This lecture Pages 723-736 Voting Rights South Carolina v. Katzenbach (1966) Shelby County v. Holder (2013)

The Voting Rights Act of 1965 Look at Table 3-5 Nonwhites had considerably lower registration rates than whites But by 2000, these numbers had largely equalized A key provision was Section 5 This required any covered jurisdiction to preclear any changes to voting or election procedures either by the Justice Department or a three judge D.C. district court panel It assumed that any law was illegal until found otherwise Covered jurisdictions were set forward in Section 4(b) Section 2 applies everywhere Why preclearance? The whack a mole Poll taxes get eliminated by 24th Amendment

The Coverage Formula (Section 4(b))

South Carolina v. Katzenbach (1966) Since South Carolina had registration levels of below 50%, it was covered It is also covered by name as well South Carolina did not want to submit to coverage Most northern states sided with the federal government Question Did this provision of the Voting Rights Act violate the state’s rights to conduct elections?

South Carolina v. Katzenbach- II Arguments For South Carolina It indeterminately sweeps across the rights of South Carolina and its citizen It covers some places with discrimination, but fails to cover others States get to determine who is a voter It should not create a presumption of violations of the 15th Amendment Literacy tests promote an intelligent electorate For the Justice Department The 15th Amendment gives Congress authority to enforce the right to vote based on race The means by which is does so is its choice Literacy tests are discriminatory in practice The coverage area was not decided arbitrarily less than half of eligible persons voting or registered

South Carolina v. Katzenbach- III Chief Justice Warren writes for an 8-1 Court The Court rules in favor of the Justice Department Congress created a long legislative record to justify this act and many hearings The South had long been in violation Past remedies had been unsuccessful Congress may use any rational means to effectuate enforcement of the 15th Amendment The 15th Amendment was made to supersede state authority in this area By the enforcing language, it was meant for Congress to be the primary enforcer Past uses have been upheld The ends are appropriate- the means are as well Limitations are only those found in the Constitution

South Carolina v. Katzenbach- IV Black, J. dissenting Black was from Alabama He finds against Sections 5 and 4 Determining in advance what states can or cannot do Gives federal officials a veto over state laws In conflict with the Guarantee Clause Gives the federal government too much power over the states The Voting Rights Act was a success See Table 3-5 It greatly expanded the amendment enforcing ability of Congress

Shelby County v. Holder (2013) Background The Voting Rights Act had now been in place with preclearance for 48 years Congress recently updated the Voting Rights Act by extending it for 25 years in 2006, but did not change the coverage formula The Court had warned Congress in 2009 that they may need to update the formula to make bail out easier or make it more up to date Challenges to the formula were rejected at the district and circuit levels They found Congress had a lot of evidence to keep the current formula in place

Shelby County v. Holder- II Arguments For Shelby County Preclearance is no longer needed The coverage formula does not reflect current conditions For Holder and the United States It is still authorized by the 14th Amendment and 15th Amendment The coverage formula targets the states most likely to discriminate The act is still narrowly tailored to the problem areas

Shelby County v. Holder- III Roberts, C.J. for a 5-4 Court Section 4(b) is struck down This brings down Section 5 until Congress creates a new formula The formula needed to be updated yet was not Does not meet the current needs since voter registration rates in the covered jurisdictions for African-Americans was roughly the same for whites in the covered areas Preclearance was supposed to have been a temporary remedy, not permanent Decision also based on federalism Minority candidates hold record numbers of offices Does not affect §2, and no specific holding on §5

Shelby County v. Holder- IV Thomas, J. concurring Would also hold Section 5 unconstitutional

Shelby County v. Holder- V Ginsburg, J. dissenting, joined by Breyer, Sotomayor, and Kagan, JJ. She gives a blistering dissent that she reads from the bench She thinks they ignored the record Congress provided Also sees this as appropriate legislation under the enforcement clause Looks at second and third generation barriers to voting places tried to implement Examples of many things including trying to cancel elections Sees that the Court was taking away thing that helped to make the numbers Roberts, C.J. quoted as being possible Thinks there will be backsliding after this opinion

Shelby County v. Holder- VI What happens after this? Many of the covered jurisdictions go forward in discriminating! I have papers that I am working on about things that Georgia, Louisiana and North Carolina have done afterwards

Next Lecture Pages 741-755 Campaign Finance Citizens United v. Federal Election Commission (2010) McCutcheon v. Federal Election Commission (2014)