Odd decisions in electoral process

The Roberts’ Supreme Court is reaching some odd decisions about our electoral process. Just four years ago, a rather sharply divided 5-4 court, struck down major parts of the Voting Rights Act of 1965 (“VRA”), in Shelby County v. Holder. This decision was a bit of a surprise, as this was an aggressive decision to invalidate a portion of Congress’ 2006 reauthorization.

The VRA was a landmark piece of legislation, passed after years of fits and starts, and with President Johnson twisting more than a few arms to push it across the finish line. Memorably, in signing it into law, he prophesied that he was turning the south over to the Republicans for a generation. The reason for such a dour prediction is that the VRA was designed to eliminate “Jim Crow laws” (like “Poll Taxes” and literacy laws) that had squelched minority-voting rights since the end of reconstruction. Passed in 1965, it was updated in 1970 and again in 1975, before a full reauthorization in 2006.

In doing so, Congress found that racism had infected the voting process in certain states and regions, primarily (although not exclusively) in the “old south.” Section 5 of the VRA required “preclearance” from the Justice Department and/or federal judges for changes sought in electoral laws (redistricting, poll access, voter registration, composition of elected bodies, etc.), where there had been a history of voting discrimination. The VRA Chief Justice Roberts’ majority opinion was premised on the legal conclusion that “times had changed” and it was no longer necessary to hold governmental bodies responsible for past voting discrimination bad acts. In short, the Shelby decision seemed to relegate Jim Crow to the dusty annals of history. The dissent warned that 50 years was not enough time to eradicate the remnants of Jim Crow and racism; it also questioned the wisdom of overruling the reasoned intent of Congress. This was a powerful and far-reaching decision and not very “conservative” or democratic considering that the judgment of five “unelected” men in black robes was substituted for that of 535 elected officials.

A floodgate of state and local electoral legislation was proposed and passed (some in record time) by Republican controlled governmental bodies, no longer beholden to Section 5’s “pre-clearance” requirement. A wish list of legislation was passed some to purportedly protect against voter fraud, others just eliminating voting access, and some to “gerrymander” voting districts to dilute the power of minority voters. In some cases, the overt and expressed purpose of these laws was to increase the probability of Republicans being elected to office. In other words, stark and naked partisanship.

Funny thing has happened, federal judges have almost uniformly wagged a disapproving finger under the authority of a different part of the VRA, Section 2. This part of the VRA prohibits electoral laws, “which results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color.” Laws eliminating early voting dates — struck down. Voter ID laws passed without any proof of a voter fraud problem to combat, and that disproportionately impact minorities — prevented from coming into effect.

Even more astounding, after just a few years ago finding Section 5 of the VRA unconstitutional, the United States Supreme Court has stepped into this arena approving of a muscular interpretation of Section 2, as applied to the misguided mischief attempted in North Carolina. First, the Supreme Court left in place a Court of Appeals decision invalidating North Carolina’s Voter ID law, for being discriminatory and racially motivated. Second, in Cooper v. Harris, it unanimously slammed the state Republican establishment.

North Carolina Republicans have attempted to stem the “purple tide” of change, in what was once an erstwhile Republican southern stronghold, by crafting laws to make it harder for minorities to register and vote and also to create congressional districts more favorable to Republican rule. They did this by creating a district packed with minority voters (a “majority-minority” district) and bleeding them from other districts to make them more “white.”

What had happened is that two voters brought suit against the state of North Carolina, in federal court, arguing that following the 2010 census, the North Carolina legislature had illegally packed two congressional districts with minority voters in violation of Section 2 of the VRA. Indeed, the uncontested evidence from the District Court trial had been that the state’s expressed intent was to take the two congressional districts, having a strong minority voter presence and make them “majority-minority” districts. Based on this record, according to a unanimous Supreme Court, this meant the plaintiffs had sufficiently triggered Section 2’s prohibition of discrimination by showing that “race was the predominant factor” in re-drawing these congressional districts.

We do not know what reach the Cooper opinion will have. Certainly, it stands for the proposition that politicians should not be so stupid as to brazenly target the creation of majority-minority districts. It suggests that, even if Section 5 of the VRA is dead, Section 2 is not, even if it is “clunkier” because it requires a lawsuit be filed after a political decision is made, as opposed to the prior protections required by pre-clearance. Perhaps, more importantly, it signals that the Supreme Court will establish itself as a watchdog of our electoral process. And, this might not be a bad idea, in the current partisan climate.

Local attorney Jim Rockefeller owns the Rockefeller Law Center and is a former Houston County chief assistant district attorney and former Miami prosecutor. Visit www.rockefellerlawcenter.com to submit confidential legal questions and to review former articles and frequently asked questions.

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