Private: ACS Network Explores Voting Rights Post-Shelby County

 

This past June, the Supreme Court struck down a key provision in “arguably one of the most successful acts passed by Congress in any area,” said Richard Reuben, the James Lewis Parks Professor of Law at the University of Missouri School of Law, at a recent event on Shelby County v. Holder hosted by the ACS University of Missouri School of Law Student Chapter.

 

The affected provision of the Voting Rights Act, Section 4(b), contains the coverage formula for determining which jurisdictions are subject to a preclearance requirement before they can amend their voting laws. Section 5 details the logistics of the requirement, which was designed to target states and local governments with a history of discriminatory practices. By declaring Section 4(b) unconstitutional under the claim that the formula was based on obsolete data, the Court essentially nullified Section 5. States that were once required to have a federal court or the Department of Justice sign off on changes to voter law may now proceed unchecked.

 

In an ACS National conference call – “After Shelby County: The Future of the Voting Rights Act” – Julie Fernandes, Senior Policy Analyst at the Open Society Foundations and former Deputy Assistant Attorney General for Civil Rights at the Department of Justice, discussed how the legislation can combat discriminatory practices without Sections 4(b) and 5. In particular, she named Section 2 and Section 3(c) as candidates.

 

Appeals to Section 2 result from policies or practices in voting areas with a discriminatory purpose or result. Sadly, explained Ms. Fernandes, these after-the-fact remedies often take a long time, are very expensive and result in complicated litigation. Violations of the Fifteenth Amendment may also be remedied by preclearance requirements set forth in Section 3(c). Yet intentional discrimination must be a predicate in these cases, she said, and courts do not often find said discrimination.

 

In a post-Shelby world, Ms. Fernandes identified the need for a new, data-driven preclearance formula; the expansion of federal courts’ ability to institute preclearance requirements; and public notice and disclosure of voting law changes.

 

In a Section 5 world, she explained, jurisdictions subject to preclearance requirements had to provide public notice of their voting changes by submitting them to the Department of Justice – a fairly transparent process. They also had to engage with the minority community about the voting changes in question. Although alterations may still be visible at the state level with such disclosure, they will now become more obscure at the county, school board and city council levels. “It’s as if the light has been turned off, and we can’t see voting changes anymore,” Ms. Fernandes said.

 

Several ACS Student Chapters, like the University of Missouri School of Law, reacted to the Court’s ruling with Shelby-centered events. Quoting Justice Ginsburg, ACS Faculty Advisor and Associate Dean for Faculty Development and Research at Case Western Reserve University School of Law B. Jessie Hill said that “striking down the Voting Rights Act because it’s not working is ‘like throwing away your umbrella in a rainstorm because you are not getting wet.’” “It’s no surprise, then,” she continued, “that a deluge of voting restrictions has arrived in Shelby County’s wake.”

 

University of Kentucky College of Law, University of Chicago Law School, Drexel University Earle Mack School of Law, University of La Verne College of Law, the University of Michigan Law School, Rutgers School of Law-Newark, and UCLA School of Law have similarly all included voting rights discussions in their programming this fall.