1. Lecture 48 Voting and Representation II
Voting Rights

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

3. 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

4. The Coverage Formula (Section 4(b))

5. 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?

6. 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

7. 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

8. 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

9. 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

10. 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

11. 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

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

13. 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

14. 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

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