By Habib Olapade
Habib Olapade is a junior at Stanford University studying political science.
If the past three years have taught us anything, it’s that there is nothing that scares a neo-Dixiecrat quite like a person of color waiting in front of a voting booth. Indeed, since the ratification of the Fifteenth Amendment, most individuals outside the former Confederacy (and a substantial number within it) have known this but have treated it like a carefully guarded family secret. The continuing fallout from the Supreme Court’s ruling in Shelby County v. Holder, a case that gutted the Voting Rights Act of 1965’s main enforcement mechanism, has made the elephant in the room all the more visible. [1]
First, some background: the Voting Rights Act of 1965 was passed in part to stop Southern jurisdictions from preventing African-Americans, Hispanics, Asian-Americans and Native Americans from exercising their Fifteenth Amendment rights. Section five, a critical portion of the law, allowed federal officials to preempt southern shenanigans by requiring states and certain jurisdictions across the country to gain approval for prospective changes in voting regulations before they could be put into effect. [2] This move was a drastic yet necessary one, as southern states could otherwise easily disenfranchise minority voters. Indeed, because federal lawsuits are not known for their brevity, these states could violate the Fifteenth Amendment time and again as long as they had a viable back-up plan and were willing to delay litigation. For example, in 1957, the Alabama state legislature decided that it was tired of sharing political power with the African-American population in Tuskegee and redrew the map so as to exclude all but five registered African-American voters from city limits. Somehow, the local political bosses managed to keep all Caucasian residents inside the municipality.
Habib Olapade is a junior at Stanford University studying political science.
If the past three years have taught us anything, it’s that there is nothing that scares a neo-Dixiecrat quite like a person of color waiting in front of a voting booth. Indeed, since the ratification of the Fifteenth Amendment, most individuals outside the former Confederacy (and a substantial number within it) have known this but have treated it like a carefully guarded family secret. The continuing fallout from the Supreme Court’s ruling in Shelby County v. Holder, a case that gutted the Voting Rights Act of 1965’s main enforcement mechanism, has made the elephant in the room all the more visible. [1]
First, some background: the Voting Rights Act of 1965 was passed in part to stop Southern jurisdictions from preventing African-Americans, Hispanics, Asian-Americans and Native Americans from exercising their Fifteenth Amendment rights. Section five, a critical portion of the law, allowed federal officials to preempt southern shenanigans by requiring states and certain jurisdictions across the country to gain approval for prospective changes in voting regulations before they could be put into effect. [2] This move was a drastic yet necessary one, as southern states could otherwise easily disenfranchise minority voters. Indeed, because federal lawsuits are not known for their brevity, these states could violate the Fifteenth Amendment time and again as long as they had a viable back-up plan and were willing to delay litigation. For example, in 1957, the Alabama state legislature decided that it was tired of sharing political power with the African-American population in Tuskegee and redrew the map so as to exclude all but five registered African-American voters from city limits. Somehow, the local political bosses managed to keep all Caucasian residents inside the municipality.
Fifty years later, things have changed for the better. However, as recent events in South Carolina, Florida, and Texas have demonstrated, Southerners are still not holding hands and singing Kumbaya, which is why Congress reauthorized the VRA in 2006 with overwhelming bipartisan support. [4] Despite the reauthorization, the Supreme Court invalidated § 4(b) of the Voting Rights Act of 1965 in Shelby County v. Holder (2013). [5] Section 4(b) is important because it contains the mathematical formula that the Justice Department uses (or used to use) to determine which counties and/or states would have to submit proposed changes in their election laws for preclearance. [6] The majority opinion in Shelby was optimistic that Southerners could not possibly harbor the animus that the VRA attributed to them, and believed that the old coverage formula violated state sovereignty because it was not up to date and because election affairs are usually reserved for local jurisdictions. [7]
It did not take long, though, to realize that this was complete bunk. Within days of the Court’s ruling, Texas, Louisiana, Alabama, Tennessee, Mississippi, Georgia, Florida, North Carolina, and Virginia enacted Voter ID laws that had a documented disparate impact on minority voters. [8]
In fairness to Southerners, most insist that the ID laws were intended to target Democrats. Under this theory, any discrimination that results from these laws is based purely on partisanship, not race, and is therefore nominally constitutional. Regardless of whether one agrees or disagrees with the Court’s handiwork, the main purpose of the decision was to vindicate state sovereignty against federal interference in local election matters.
This, however, is only the tip of the iceberg. The Supreme Court’s resolution of Harris v. Arizona IndependentRedistricting Commission, a case scheduled for argument during the October term, could drastically intensify Shelby County’s effect on American election law. [9] Here is the problem: in 2010, prior to Shelby County, several states redrew their congressional and state districting maps. In order to prevent the Justice Department from denying preclearance to their new maps under §5 of the VRA, several southern and southwestern states (including Arizona) had to create multiple districts where African-Americans, Hispanics, or Native Americans had a more than likely chance of electing their candidate of choice. [10] The result was that several state legislative districting maps deviated from perfect population equality because the district drawers wanted to create compact and contiguous districts, respect communities of interest, and comply with §5. In the past, the Court has held that deviations from perfect population equality are more tolerable in state maps as opposed to maps setting out congressional districts so long as there are legitimate reasons for the inequality.
Arizona, in particular, had three strong reasons to avoid a preclearance denial. First, denial would have meant that a federal district court judge in Phoenix would draw the maps used in the 2012 election cycle. Second, denial, at the time, would have prevented Arizona from taking advantage of a ‘bail-out’ provision in the VRA that allows jurisdictions with a long history of compliance to absolve themselves of the VRA’s coverage requirements. Finally, preclearance denial would have cost the state millions of dollars in additional litigation. [11]
Now that the Court has gutted §5, Arizona Republicans, angry that the current plan only gives them a slight partisan advantage, are challenging the plan’s constitutionality on the grounds that the population inequality resulting from compliance with §5 automatically invalidates the map. There are two reasons why the Arizona Republicans should lose on this issue. First, §5 compliance was not the only cause of the population inequality; thus, the fact that it was one consideration that the map drawers took into account does not, on its own force, run afoul of prior precedent that prevented unreasonable differences in state district populations. More importantly, given that the purpose of Shelby County was to champion state sovereignty, it would be ironic if the Court invalidated the Arizona plan drawn to avoid federal interference in election matters. In the interim, we can only hope that five individuals in the marble palace appreciate the difference.
[1] “Voting Rights Act - Black History,” HISTORY.com, accessed April 7, 2016, http://www.history.com/topics/black-history/voting-rights-act.
[2] Updated: June 25 and 2013, “Areas Covered by Section 5 of the Voting Rights Act,” The Washington Post, accessed April 8, 2016, http://www.washingtonpost.com/wp-srv/special/politics/section-five-voting-rights-act-map/.
[3] Joel William Friedman, Champion of Civil Rights: Judge John Minor Wisdom (LSU Press, 2009).
[4] F. Sensenbrenner, “H.R.9 - 109th Congress (2005-2006): Fannie Lou Hamer, Rosa Parks, and Coretta Scott King Voting Rights Act Reauthorization and Amendments Act of 2006,” legislation, (July 27, 2006), https://www.congress.gov/bill/109th-congress/house-bill/9.
[5] “Shelby County v. Holder,” SCOTUSblog, accessed April 8, 2016, http://www.scotusblog.com/case-files/cases/shelby-county-v-holder/.
[6] “Key Provision Of Voting Rights Act Struck Down By Supreme Court,” The Huffington Post, accessed April 8, 2016, http://www.huffingtonpost.com/2013/06/25/voting-rights-act-supreme-court_n_3429810.html.
[7] Ibid.
[8] Kara Brandeisky, Hanqing Chen, Mike Tigas, “Everything That’s Happened Since Supreme Court Ruled on Voting Rights Act,” ProPublica, November 4, 2014, http://www.propublica.org/article/voting-rights-by-state-map.
[9] “Harris v. Arizona Independent Redistricting Commission,” SCOTUSblog, accessed April 8, 2016, http://www.scotusblog.com/case-files/cases/harris-v-arizona-independent-redistricting-commission/.
[10] “State Legislative and Congressional Redistricting after the 2010 Census - Ballotpedia,” accessed April 8, 2016, https://ballotpedia.org/State_Legislative_and_Congressional_Redistricting_after_the_2010_Census.
[11] “Semantic Scholar,” accessed April 8, 2016, https://www.semanticscholar.org/paper/An-Assessment-of-the-Bailout-Provisions-of-the-Hebert/be513f890eb56ac5f8e521905968ea6dfa0fb24f.
Photo Credit: Flickr User justgrimes
The opinions and views expressed through this publication are the opinions of the designated authors and do not reflect the opinions or views of the Penn Undergraduate Law Journal, our staff, or our clients.
It did not take long, though, to realize that this was complete bunk. Within days of the Court’s ruling, Texas, Louisiana, Alabama, Tennessee, Mississippi, Georgia, Florida, North Carolina, and Virginia enacted Voter ID laws that had a documented disparate impact on minority voters. [8]
In fairness to Southerners, most insist that the ID laws were intended to target Democrats. Under this theory, any discrimination that results from these laws is based purely on partisanship, not race, and is therefore nominally constitutional. Regardless of whether one agrees or disagrees with the Court’s handiwork, the main purpose of the decision was to vindicate state sovereignty against federal interference in local election matters.
This, however, is only the tip of the iceberg. The Supreme Court’s resolution of Harris v. Arizona IndependentRedistricting Commission, a case scheduled for argument during the October term, could drastically intensify Shelby County’s effect on American election law. [9] Here is the problem: in 2010, prior to Shelby County, several states redrew their congressional and state districting maps. In order to prevent the Justice Department from denying preclearance to their new maps under §5 of the VRA, several southern and southwestern states (including Arizona) had to create multiple districts where African-Americans, Hispanics, or Native Americans had a more than likely chance of electing their candidate of choice. [10] The result was that several state legislative districting maps deviated from perfect population equality because the district drawers wanted to create compact and contiguous districts, respect communities of interest, and comply with §5. In the past, the Court has held that deviations from perfect population equality are more tolerable in state maps as opposed to maps setting out congressional districts so long as there are legitimate reasons for the inequality.
Arizona, in particular, had three strong reasons to avoid a preclearance denial. First, denial would have meant that a federal district court judge in Phoenix would draw the maps used in the 2012 election cycle. Second, denial, at the time, would have prevented Arizona from taking advantage of a ‘bail-out’ provision in the VRA that allows jurisdictions with a long history of compliance to absolve themselves of the VRA’s coverage requirements. Finally, preclearance denial would have cost the state millions of dollars in additional litigation. [11]
Now that the Court has gutted §5, Arizona Republicans, angry that the current plan only gives them a slight partisan advantage, are challenging the plan’s constitutionality on the grounds that the population inequality resulting from compliance with §5 automatically invalidates the map. There are two reasons why the Arizona Republicans should lose on this issue. First, §5 compliance was not the only cause of the population inequality; thus, the fact that it was one consideration that the map drawers took into account does not, on its own force, run afoul of prior precedent that prevented unreasonable differences in state district populations. More importantly, given that the purpose of Shelby County was to champion state sovereignty, it would be ironic if the Court invalidated the Arizona plan drawn to avoid federal interference in election matters. In the interim, we can only hope that five individuals in the marble palace appreciate the difference.
[1] “Voting Rights Act - Black History,” HISTORY.com, accessed April 7, 2016, http://www.history.com/topics/black-history/voting-rights-act.
[2] Updated: June 25 and 2013, “Areas Covered by Section 5 of the Voting Rights Act,” The Washington Post, accessed April 8, 2016, http://www.washingtonpost.com/wp-srv/special/politics/section-five-voting-rights-act-map/.
[3] Joel William Friedman, Champion of Civil Rights: Judge John Minor Wisdom (LSU Press, 2009).
[4] F. Sensenbrenner, “H.R.9 - 109th Congress (2005-2006): Fannie Lou Hamer, Rosa Parks, and Coretta Scott King Voting Rights Act Reauthorization and Amendments Act of 2006,” legislation, (July 27, 2006), https://www.congress.gov/bill/109th-congress/house-bill/9.
[5] “Shelby County v. Holder,” SCOTUSblog, accessed April 8, 2016, http://www.scotusblog.com/case-files/cases/shelby-county-v-holder/.
[6] “Key Provision Of Voting Rights Act Struck Down By Supreme Court,” The Huffington Post, accessed April 8, 2016, http://www.huffingtonpost.com/2013/06/25/voting-rights-act-supreme-court_n_3429810.html.
[7] Ibid.
[8] Kara Brandeisky, Hanqing Chen, Mike Tigas, “Everything That’s Happened Since Supreme Court Ruled on Voting Rights Act,” ProPublica, November 4, 2014, http://www.propublica.org/article/voting-rights-by-state-map.
[9] “Harris v. Arizona Independent Redistricting Commission,” SCOTUSblog, accessed April 8, 2016, http://www.scotusblog.com/case-files/cases/harris-v-arizona-independent-redistricting-commission/.
[10] “State Legislative and Congressional Redistricting after the 2010 Census - Ballotpedia,” accessed April 8, 2016, https://ballotpedia.org/State_Legislative_and_Congressional_Redistricting_after_the_2010_Census.
[11] “Semantic Scholar,” accessed April 8, 2016, https://www.semanticscholar.org/paper/An-Assessment-of-the-Bailout-Provisions-of-the-Hebert/be513f890eb56ac5f8e521905968ea6dfa0fb24f.
Photo Credit: Flickr User justgrimes
The opinions and views expressed through this publication are the opinions of the designated authors and do not reflect the opinions or views of the Penn Undergraduate Law Journal, our staff, or our clients.
