Penn Undergraduate Law Journal
  • Home
  • About
    • Mission
    • Masthead
    • Faculty Advisory Board
    • Partner Journals
    • Sponsors
  • Submissions
  • Full Issues
  • The Roundtable
    • Pre-Law Corner
  • Events
  • Contact
    • Contact
    • Apply
    • FAQs
  • Home
  • About
    • Mission
    • Masthead
    • Faculty Advisory Board
    • Partner Journals
    • Sponsors
  • Submissions
  • Full Issues
  • The Roundtable
    • Pre-Law Corner
  • Events
  • Contact
    • Contact
    • Apply
    • FAQs

The Roundtable


Welcome to the Roundtable, a forum for incisive commentary and analysis
on cases and developments in law and the legal system.


INTERESTED IN wRITING FOR tHE rOUNDTABLE?

Voting Rights and the Supreme Court

4/14/2016

0 Comments

 
Picture
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.
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.
0 Comments

Your comment will be posted after it is approved.


Leave a Reply.


    Categories

    All
    Akshita Tiwary
    Alana Bess
    Alana Mattei
    Albert Manfredi
    Alexander Saeedy
    Alexandra Aaron
    Alexandra Kanan
    Alice Giannini
    Alicia Augustin
    Alicia Kysar
    Ally Kalishman
    Ally Margolis
    Alya Abbassian
    Anika Prakash
    Anna Schwartz
    Ashley Kim
    Astha Pandey
    Audrey Pan
    Benjamin Ng'aru
    Brónach Rafferty
    Bryce Klehm
    Cary Holley
    Christina Gunzenhauser
    Christine Mitchell
    Christopher Brown
    Clarissa Alvarez
    Cole Borlee
    Connor Gallagher
    Dan Spinelli
    Dan Zhang
    David Katz
    Davis Berlind
    Derek Willie
    Dhilan Lavu
    Edgar Palomino
    Edna Simbi
    Emma Davies
    Esther Lee
    Evelyn Bond
    Filzah Belal
    Frank Geng
    Gabriel Maliha
    Georgia Ray
    Graham Reynolds
    Habib Olapade
    Hailie Goldsmith
    Haley Son
    Harshit Rai
    Henry Lininger
    Hetal Doshi
    Iris Zhang
    Irtaza Ali
    Isabela Baghdady
    Ishita Chakrabarty
    Jack Burgess
    Jessica "Lulu" Lipman
    Joe Anderson
    Jonathan Lahdo
    Jonathan Stahl
    Joseph Squillaro
    Justin Yang
    Kaitlyn Rentala
    Kanishka Bhukya
    Katie Kaufman
    Kelly Liang
    Keshav Sharma
    Ketaki Gujar
    Lauren Pak
    Lavi Ben Dor
    Libby Rozbruch
    Lindsey Li
    Luis Bravo
    Lyndsey Reeve
    Madeline Decker
    Maja Cvjetanovic
    Maliha Farrooz
    Marco DiLeonardo
    Margaret Lu
    Matthew Caulfield
    Michael Keshmiri
    Mina Nur Basmaci
    Muskan Mumtaz
    Natalie Peelish
    Natasha Darlington
    Natasha Kang
    Nayeon Kim
    Nicholas Parsons
    Nicholas Williams
    Nicole Greenstein
    Nihal Sahu
    Omar Khoury
    Owen Voutsinas Klose
    Owen Voutsinas-Klose
    Pheby Liu
    Rachel Bina
    Rachel Gu
    Rachel Pomerantz
    Rebecca Heilweil
    Regina Salmons
    Sajan Srivastava
    Sandeep Suresh
    Sanjay Dureseti
    Sarah Simon
    Saranya Das Sharma
    Saranya Sharma
    Sasha Bryski
    Saxon Bryant
    Sean Foley
    Sebastian Bates
    Serena Camici
    Shahana Banerjee
    Shannon Alvino
    Shiven Sharma
    Siddarth Sethi
    Sneha Parthasarathy
    Sneha Sharma
    Sophie Lovering
    Steven Jacobson
    Suaida Firoze
    Suprateek Neogi
    Takane Shoji
    Tanner Bowen
    Taryn MacKinney
    Thomas Cribbins
    Todd Costa
    Tyler Larkworthy
    Vatsal Patel
    Vikram Balasubramanian
    Vishwajeet Deshmukh
    Wajeeha Ahmad
    Yeonhwa Lee

    Archives

    January 2023
    December 2022
    November 2022
    September 2022
    June 2022
    March 2022
    February 2022
    January 2022
    December 2021
    November 2021
    May 2021
    April 2021
    March 2021
    February 2021
    January 2021
    December 2020
    November 2020
    October 2020
    July 2020
    June 2020
    May 2020
    April 2020
    March 2020
    February 2020
    December 2019
    November 2019
    October 2019
    September 2019
    August 2019
    July 2019
    May 2019
    April 2019
    March 2019
    January 2019
    December 2018
    November 2018
    October 2018
    September 2018
    August 2018
    July 2018
    June 2018
    May 2018
    April 2018
    March 2018
    February 2018
    December 2017
    November 2017
    October 2017
    August 2017
    July 2017
    May 2017
    April 2017
    March 2017
    February 2017
    January 2017
    December 2016
    November 2016
    October 2016
    September 2016
    August 2016
    July 2016
    June 2016
    April 2016
    March 2016
    February 2016
    December 2015
    November 2015
    October 2015
    September 2015
    August 2015
    July 2015
    June 2015
    May 2015
    April 2015
    March 2015
    February 2015
    November 2014
    October 2014
    August 2014
    July 2014
    June 2014
    May 2014
    April 2014
    March 2014
    December 2013
    November 2013
    October 2013
    September 2013

Picture
Picture
​