Tuesday, June 25, 2013

U.S. Supreme Court Rules On Shelby County V. Holder, Dilutes Alaskan Preclearance Requirements Of Voting Rights Act

Four years ago, in a case called Northwest Austin Municipal Utility District No. 1 (NAMUDNO) v. Holder, the Supreme Court accepted a challenge to the constitutionality of the preclearance provisions of the Voting Rights Act. It subsequently became known as Shelby County v. Holder, and Alaska Governor Sean Parnell ensured Alaska joined the suit.

On June 25th, 2013, by a 5-to-4 vote, the Supreme Court struck down Section 4 of the Voting Rights Act. This is the section which mandated that nine different states with a past history of voting tests and low voter registration and turnout be subjected by Congress to special preclearance requirements with the Department of Justice, particularly when it comes to reapportionment. This New York Times graphic explains the formula behind the Voting Rights Act, and the inclusion of Alaska stemmed from a history of failing to provide ballots and voting assistance to speakers of Native languages with limited proficiency in English, resulting in a presumed dilution of political power for Alaska Natives. Although the decision did not strike down Section 5, which sets out the preclearance requirement, invalidating Section 4, which determines which states are covered, makes Section 5 irrelevant, unless Congress chooses to pass a new bill for determining which states would be covered.

Writing for the majority, Chief Justice stated the following:

“In 1965, the states could be divided into two groups: those with a recent history of voting tests and low voter registration and turnout, and those without those characteristics. Congress based its coverage formula on that distinction. Today the nation is no longer divided along those lines, yet the Voting Rights Act continues to treat it as if it were.”

Roberts also said that while Congress remains free to try to impose federal oversight on states where voting rights were perceived to be at risk, they must do so based on contemporary data and not on antiquated 40-year-old historical data.

Writing for the minority, Justice Ruth Bader Ginsburg, playing the MLK card, stated the following:

“The great man who led the march from Selma to Montgomery and there called for the passage of the Voting Rights Act foresaw progress, even in Alabama. 'The arc of the moral universe is long,’ Dr. King said, but ‘it bends toward justice,’ if there is a steadfast commitment to see the task through to completion. That commitment has been disserved by today’s decision.”

By her opinion, Justice Ginsburg also implied that the civil rights revolution should be a permanent revolution similar to the Great Proletarian Cultural Revolution in Communist China, adding that the focus of the Voting Rights Act had properly changed from first-generation barriers to ballot access to second-generation barriers like racial gerrymandering and laws requiring at-large voting in places with a sizable black minority.

The decision will have immediate consequences. Changes in voting procedures that had required advance federal approval, including voter identification laws and restrictions on early voting, will now be subject only to after-the-fact litigation. Chief Justice John Roberts and Justices Antonin Scalia, Anthony M. Kennedy, Clarence Thomas and Samuel A. Alito Jr. joined the majority opinion, while Justice Ruth Bader Ginsburg dissented, joined by Justices Stephen G. Breyer, Sonia Sotomayor and Elena Kagan. The two sides mirrored the sharp distinction which exists in the greater society over the lessons learned from the history of the civil rights movement and the definition of "discrimination"; while the majority believes that equal opportunity is sufficient, the minority demands equal outcome as proof of equal opportunity despite the fact that equal opportunity and equal outcome are mutually exclusive.

-- Read the full 68-page court decision HERE.

However, the court did NOT necessarily invalidate the preclearance requirement, but they did set the stage for possibly overturning it in the future. Here's a short and succinct summation of the impact as published on the SCOTUSblog:

Today’s decision in Shelby County v. Holder, a new challenge to the preclearance requirements, boils down to a new message to Congress: We warned you, you didn’t listen, and now it’s your problem to fix. The Court did not invalidate the actual preclearance provision of the statute. But it did something just as significant: it struck down Section 4 of the Act, which contains the formula that is used to identify the state and local governments that have to comply with the preclearance requirements. The upshot is that although the preclearance requirement survives, none of those jurisdictions have to comply with it unless and until Congress can enact a new formula to determine whom it covers – a prospect that, given the current state of gridlock in Congress, might not happen for a while or even forever. (It is also possible that the federal Department of Justice could bring new lawsuits under a separate provision of the Act to extend the preclearance provisions to new jurisdictions, but today’s decision could make it much harder for the government to win those suits too.)

Since Alaska is one of the nine states affected in some way, Alaskan reaction was forthcoming. According to the Anchorage Daily News, there will be two significant short-term impacts:

-- The most immediate effect will be in redistricting. The Alaska Redistricting Board, under orders from the Alaska Supreme Court and Fairbanks Superior Court Judge Michael McConahy to re-design the legislative boundaries it produced for the 2012 election, had planned to wait till after the justices ruled, not knowing whether the board's plan would require Justice Department preclearance. But the state courts prodded the board to get started earlier, telling it that to meet the requirements of Alaska's Constitution, it needed to draw legal boundaries under Alaska law first, and then adapt those lines, if necessary, to the Voting Rights Act. KTOO provides a progress report on the redistricting board's efforts through June 24th.

-- The decision also facilitates Alaska HB3, the voter photo ID bill sought by Rep. Bob Lynn (R-Anchorage). HB3 failed to get to the House floor and got buried in the Rules Committee last session after opposition surfaced over its effects in the Bush, where driver's licenses are much less common than in urban areas. Opponents said it would never pass Justice Department preclearance, but that hurdle now is gone.

So far, the only reactions from Alaskan politicians are from Lance Roberts, a member of the Fairbanks North Star Borough Assembly, who wrote the following in the Fairbanks Daily News Miner: "This will allow us to have more compact districts, though with the one man-one vote principle from the Federal constitution, Fairbanks will still have to have half a district tied to a rural district. Great news for Alaska". And according to this Tweet, Lt. Gov. Mead Treadwell says the SCOTUS decision is good for Alaska, while Senator Mark Begich said it's bad for rural Alaska.

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