The rise of digital was supposed to mean the death of things like printed books, vinyl records and brick and mortar stores. But recently, the market for analog goods and ideas has actually increased. The revenge of analog.
The 15th Amendment to the U.S. Constitution made it illegal for states to deny voting rights based on race or color. But Southern states enacted poll taxes and literacy tests to keep blacks from voting. Then in 1965, Congress passed the Voting Rights Act. Section 5 of the Act identified nine states for their history of discrimination. The new law required these states to get “pre-clearance” from the government before changing their voting laws. Critics of Section 5 say the formula is outdated and violates states’ rights. But supporters argue voting rights are still at risk in these areas of the country and need special protection. Diane and guests discuss the future of the Voting Rights Act at the Supreme Court.
- Michael Carvin partner at Jones Day and former Department of Justice official in the Civil Rights Division, Reagan Administration (1985-1987).
- Sherrilyn Ifill director-counsel of the NAACP Legal Defense and Educational Fund.
- Jeffrey Rosen professor at George Washington University Law School and legal affairs editor of The New Republic; author of "The Supreme Court: The Personalities and Rivalries that Defined America"
MS. DIANE REHMThanks for joining us. I'm Diane Rehm. The Supreme Court hears arguments tomorrow on a key provision of the Voting Rights Act. The county of Shelby, Ala. says it should not have to seek government approval for new voting laws. It says the Section 5 pre-clearance law violates state sovereignty and is based on outdated election data. But the government argues discrimination still exists in these areas, which justifies special treatment.
MS. DIANE REHMJoining me to talk about Section 5 and the future of the Voting Rights Act: Sherrilyn Ifill of the University of Maryland School of Law and the NAACP Legal Defense and Education Fund, Jeffrey Rosen of the George Washington University Law School and Michael Carvin of the law firm Jones Day. I invite you to join us. This is a very important conversation. I hope you'll call us on 800-433-8850. Send us an email to firstname.lastname@example.org. Follow us on Facebook or send us a tweet. Good morning to all of you, and thank you for being here.
PROF. SHERRILYN IFILLGood morning, Diane.
PROF. JEFFREY ROSENGood morning.
MR. MICHAEL CARVINGood morning.
REHMJeffrey Rosen, I'll start with you. Give us some of the history that led to the passage of the Voting Rights Act in 1965.
ROSENWell, voting discrimination, of course, has been prohibited ever since 1870 when the 15th Amendment to the Constitution prohibited discrimination in the right to vote. But in 1965, Congress concluded that there was continuing evidence of intentional and covert discrimination that prevented people from getting to the polls and casting a meaningful vote, so it passed the Voting Rights Act.
ROSENThe main section of the Voting Rights Act is Section 5, which applies to certain jurisdictions that have discriminated on the basis of race in the past and prevents them from changing any of their voting requirements, whether it's a polling place or the way an election is structured, without getting approval in advance from the federal government.
REHMAnd which are those states? I think Alabama, except for the city of Pinson, is covered.
ROSENThat's exactly right. And other states and jurisdictions that remain covered today include Alabama, Georgia, Louisiana, Mississippi -- there are 40 counties in North Carolina, and then there's South Carolina and Texas.
REHMAnd there's also Alaska.
ROSENIs that covered as well...
IFILLAlaska and Arizona.
REHMIt's covered as well, which surprised me somewhat. Sherrilyn Ifill, has the Voting Rights Act, in your view, been a success?
IFILLWell, it's certainly been a partial success. I mean, one has to kind of add a little bit to the history that Jeffrey just talked about. I mean, we all remember what that history was like. Yes, it's true. By law, since 1870, Congress outlawed discrimination in voting, but we know that all of the means that were used particularly in the Southern states to keep African Americans from voting, including poll taxes and literacy clauses and understanding clauses and violence.
IFILLAnd so the Voting Rights Act was necessary for that. And so between 1965 and today, of course, there's been tremendous progress. That progress is largely attributable to the Voting Rights Act and to Section 5 of the Act in particular, which is what's at issue before the Supreme Court tomorrow.
REHMBut the question becomes why should these 16 states be treated differently? Haven't we made enough progress?
IFILLWell, I would certainly say we haven't made enough progress. But actually, what's more important is that Congress said we haven't made enough progress. The Voting Rights Act and Section 5, in particular, was enacted in 1965. And it's been through four re-authorizations, most recently in 2006.
IFILLAnd at every one of those junctures, the question for Congress was, the jurisdictions that are covered, which include nine full states and other jurisdictions, including three boroughs in New York City, parts of California -- you mentioned Alaska, Arizona and so forth -- the question is should these states continue to be covered? In other words, has enough progress made that they should be released from the requirement that they submit to the -- a federal authority any voting change that they plan to make before they enact it?
IFILLAnd when Congress engages in that process, as they did in 2006, they engaged in an exhaustive investigation in 2006 -- nine months of hearings, testimony, 15,000 pages of testimony, 90 witnesses -- looking at the precise question that you're asking, Diane. And Congress, which has been given the power in the Constitution to make the determination about how to prevent discrimination in voting, determined that it was necessary to continue to cover these jurisdictions.
REHMMichael Carvin, in your view, what's wrong with the Voting Rights Act?
CARVINWell, in those hearings in 2006, they didn't ask the two key questions. The main driver of the Voting Rights Act is not Section 5. It's Section 2, which was amended in 1982 to have a prophylactic ban on anything that's even arguably unconstitutional because it prohibits anything with a discriminatory result. You don't need to show purposeful discrimination. Everyone agrees that that is more than adequate to remedy discrimination, and it's been a tremendous success.
CARVINSo the only question is why would we add on top of that this extraordinary pre-clearance procedure under Section 5, and why would we add it to these states? Is really New York City more discriminatory than Arkansas and Oklahoma, which are not covered? And what the Congress didn't do in 2006 was update its coverage formula. All the prior congresses had looked at recent elections and said, are there current problems?
CARVINAnd what they did here was use elections from 1964 through 1972, which is as if the 1965 Congress had looked at the presidential election of Calvin Coolidge to figure out where there is current needs. And this is not just me talking. The Supreme Court unanimously said, in that case three years ago called Northwest Austin, that if you're going to impose current burdens, you need to show current needs.
CARVINAnd the Supreme Court unanimously said there's more similarity than differences between the states that are covered and not covered. So this is an arbitrary completely gratuitous and unnecessary burden, which the Justice Department has used to impose race-conscious and racially preferential redistricting on these states rather than racially neutral redistricting.
REHMJeffrey Rosen, Michael mentioned the Northwest utility case. Talk about what happened there.
ROSENThat was a remarkable case, and in many ways it was a preview of Chief Justice Roberts' stated desire to avoid broad constitutional rulings and to decide cases on narrow grounds. That was a case where a Texas utility district wanted to change the location of its polling place. And because it was covered by the Voting Rights Act, it had to get federal approval.
ROSENIt argued, as Michael suggested, that there wasn't enough of a history of discrimination to justify its coverage, and lots of people expected the Supreme Court then to do what now many people think they're going to do this time around, which was to strike down the Voting Rights Act on constitutional grounds, to say there wasn't enough evidence of current discrimination to justify this sort of remedy.
ROSENBut in a remarkable act of statesmanship, Chief Justice Roberts came up with a new formula that hadn't occurred to any of the parties in the case and basically said that this utility district could bail out of coverage, in other words, could escape the need for federal approval because there wasn't enough history of discrimination. So that, in some ways, was just delaying the great constitutional question that we're about to hear now.
ROSENMany people think that in that opinion he and his -- the fellow conservative justices were signaling to Congress, you know what, we think there are problems with this act. If you want to avoid trouble, you better amend it. Congress did not act, and that's why this time around the constitutional question may be reached.
REHMAnd Chief Justice Roberts famously said the South has changed, Sherrilyn.
IFILLYeah. And I don't think anybody would disagree that the South has and many places in the South has changed. But I also think it's important to remember -- and it may be unfortunate to have to say it, and I don't enjoy saying it -- there are many aspects of the South and other jurisdictions that haven't changed. And when Congress looked at that record, that was the determination they made. Michael says that, you know, Congress just essentially rubberstamped the same formula.
IFILLWhat we're they doing then for those nine months? What were they doing when they were gathering all this evidence that demonstrated that between the last time it had been re-authorized, the Voting Rights Act, and 2006, there had been over 600 objections to voting changes by the Justice Department and that over 400 of those changes were on the ground that the voting changes that were proposed were being proposed for a discriminatory purpose? What were they to do with evidence from jurisdictions?
IFILLYou know, we talk about polling place changes. Polling place changes are one of the key aspects of the Voting Rights Act that actually Section 2 doesn't really help. Michael talked about Section 2 of the act, which does cover the entire country. That allows you to bring a lawsuit if you believe that there has been some discrimination that has occurred.
IFILLBut what happens when a jurisdiction decides, as recently happened in some native Alaskan villages, to move a polling place to a location out of the native village that now would require you to either take a boat or a plane to get to the polling place? What do you do prior to an election? Section 5 says you have to submit that voting change. It has to be cleared by the Justice Department. And in 2008 when it was submitted, the Justice Department said hey, what's going on here.
IFILLYou got to give us some more information about this. And the jurisdiction decided to withdraw that change. That's what Section 5 allows us to do, and Congress made the decision that there needed to be a mechanism that allows you to get at the discrimination before it happens, not allows you to bring a lawsuit at the cost and time after it happened.
CARVINWell, obviously, you can bring Section 2 lawsuit well before it happens. We saw that in Texas this year. The Section 2 court decided the case on October of 2011. It took the Section 5 court until July of 2012. So it's just completely mythical to suggest that there's no pre-enforcement challenges under Section 2. It happens every day.
CARVINAll of these discriminatory purpose objections that was referred to was the Justice Department requiring what they entitled a black max program, which led to these grotesquely-shaped districts in North Carolina, et cetera, which were struck down under Shaw. So the notion that we're trying to get at real purposeful discrimination as opposed to the Justice Department imposing a racial maximization agenda is again a false premise.
IFILLYou know, it is striking that although the opponents of Section 5 say that you can sue under this other provision, Section 2, many of them believe that that also is unconstitutional. And there at least four justices on the Supreme Court who seem to be on the verge of saying that even Section 2, which says that you can't make voting changes that have the effect of making it harder for minority voters to elect representatives of their choice, itself violates the color blindness requirement of the Constitution.
ROSENSo really, what we're going to find out in this case is how committed Chief Justice Roberts and Justice Alito are to this colorblind principle. And as usual, Justice Kennedy, who us the swing vote in so many cases, is going to have to decide how much voting rights he wants to allow to be remedied.
REHMJeffrey Rosen, he's a professor at the George Washington University School of Law, Michael Carvin, a partner in Jones Day and Sherrilyn Ifill, president and director counsel of the NAACP Legal Defense and Education Fund.
REHMAnd now that we've gone over some of the history that led to the Voting Rights Act and some of the questions that have been raised, we come to the case before the Supreme Court tomorrow, Shelby County. And tell us -- it's Shelby County, Ala. v. Holder, who is, of course, the attorney general. Tell us what the case focuses on, Jeffrey.
ROSENWell, we've already said that in 2009, the Supreme Court upheld the Voting Rights Act in this Texas case. In 2010, Shelby County, which is part of the fully covered state of Alabama, challenged the constitutionality of the Voting Rights Act. Like all counties in Alabama, Shelby has been required to comply with the Voting Rights Act since 1965. It did not meet the standards for bailout, which means that it has to have clean hands, as it's called, for at least 10 years.
ROSENThere's been no evidence of discrimination in the past decade, so Shelby County said it's irrational to continue to force it to seek pre-approval based on this formula that goes back to 1965. And the appellate court rejected the constitutional challenge, relying on the Supreme Court's decision in 2009 saying that, as Sherrilyn was suggesting, there are still continuing evidence of discrimination and Section 5 is necessary and Congress could rationally pass it. There was a dissenting opinion, and now it's gone up to the Supreme Court, and we'll see what the justice has to say.
REHMSo, Sherrilyn, why is Shelby County's argument wrong?
IFILLWell, it's actually ironic that Shelby County, Ala. is the jurisdiction bringing the suit because I think everyone agrees that Shelby County, of all counties in country that are covered by Section 5, cannot release itself from the requirements of Section 5 because they don't have clean hands. Up -- just as recently as 2008, the city of Calera, which is located in Shelby County, actually engaged in the process that would have denied African-Americans the ability to elect their candidate of choice.
IFILLThe jurisdiction had used single-member district elections as the result of the kind of Section 2 litigation that Michael Carvin suggests -- handles these problems. And then, at some point, after the jurisdiction that was majority black jurisdiction had been able to elect a candidate of their choice in the city for 20 years, they decided then to redistrict and to reduce that district from a 70 percent black population to a 29 percent black population.
REHMAnd what happened to Jerome Gray?
IFILLWell, Jerome Gray is the gentleman who was discussed in the recent, I guess, New York Times article. And he talked about this very situation, the situation in which an African-American elected official has been in a district and in which essentially the district has changed out from under him or her so that they are no longer able to represent that district. And the reality of it is that what the city of Calera attempted to do was to basically circumvent a formula, a remedy that it happened as result of Section 2 litigation. And that's why you need Section 5.
IFILLThe requirement to send that change to the Department of Justice catches the discrimination before it happens. It's very nice for me or for maybe even others, you know, in this room to talk about bringing a lawsuit. But if you're a minority voter in the city of Calera or in Kilmichael, Miss., to marshal your forces, to gather the money to be able to bring a Section 2 suit and to bring it before the discrimination happens is a very tall order indeed.
REHMSo, Michael Carvin, don't these examples somehow indicate an argument for keeping Section 5 of the Voting Rights intact?
CARVINNo. They suggest just the opposite. What was described in Calera was a classic case. Section 2 would've immediately strike it down, the notion that you can't bring the lawsuit when you have hundreds of lawyers at the Justice Department, groups like the NAACP, all the political parties. Believe me, redistricting and changing districts is not an under-lawyered area. There's not change that doesn't get lawyered.
CARVINNumber two, the principal examples that Congress used in 2006 have why the covered jurisdictions who are supposedly worse than others was all these successful Section 2 lawsuits. So on the one hand, they can argue the successful Section 2 lawsuits show how bad these people are and say, you can't bring Section 2 lawsuits. Plus, which, of course, what Congress did in 2006 will say, if you have a minority-majority district, you must preserve it in amber until 2031.
CARVINThey struck down, overruled the Supreme Court decision called George v. Ashcroft that said, if there are sensible ways of redrawing these districts, the jurisdictions have some ability to do that. And Congress overruled that and said, we're going to impose "a floor under all of these majority-minority districts," which shows, again, that this is not designed to ferret out unconstitutional discrimination. This is designed to grant a racial preference to minorities.
IFILLSuffice it to say I absolutely disagree with Michael's description of what Congress did in 2006 and 2008. It is really quite surprising to me that we're all here talking about what we would do and what might be better. The reality is that the 15th Amendment gives Congress the power to enforce the provisions of the 15th Amendment, which is the provision that says you cannot -- no state or the United States cannot deny or abridge the right to vote on account of race and color.
IFILLThe same is true of the 14th Amendment, the equal protection principle. Congress has the power to determine what legislation is necessary to enforce those rights that are under those amendments. And the only question we have is whether Congress has a rationale basis, whether it's reasonable, whether it's congruent, to create a structure to do that.
IFILLAnd in this case, Congress didn't rubberstamp. They did their job. And if you or I would've done it slightly differently, that's actually not the question that's before court. Even if Justice Roberts would've done it slightly differently, that's not the question before court because the power was given to Congress.
REHMAll right. And here's a question from a listener in Michigan, Jeffrey Rosen. David says, "Here is what I do not understand. The 15th Amendment states that Congress shall have the power to enforce this article by appropriate 'legislation.' Congress has decided it needs to legislate to protect voting rights in certain places in the South. Nowhere in the 15th Amendment is it stated the standard by which Congress might add. How then can the Supreme Court possibly overturn the Voting Rights Act if it finds the law is not necessary, is it not replacing Congress' judgment with its own?"
ROSENIt's a wonderful question from Michael, and it's exactly what the Senate Majority Leader Harry Reid argues in his brief in the case. Sen. Reid and others argue that the heart of the 15th Amendment was an empowerment to Congress to make up its own decision about how to enforce the 15th Amendment. They argue that court has repeatedly deferred to Congress' finding in the past, starting in the great case of South Carolina and Katzenbach in 1966.
ROSENAnd they say that to strike down this act because the court finds that it's not closely tailored to remedying past discrimination would violate previous precedents and also the intention of the framers of the -- not only the 15th, but also the 14th Amendment who viewed this as an empowerment to Congress.
ROSENBut -- and what's also very interesting about the question is remember in the great health care case, Chief Justice Roberts quoted Oliver Wendell Holmes and said, when we strike down an act of Congress, that's the most serious thing that we can do. Many viewed that as his embracing of a tradition of judicial restraint, which says that even when he disagrees with Congress, he might defer to them. But the other justices did not view that way in voting rights cases. And we'll see if Roberts is true to that tradition.
CARVINThat's precisely backwards. In South Carolina v. Katzenbach, it says you cannot force the Constitution, which only prohibits discrimination -- purposeful discrimination, not of all this pre-clearance and effects test that's in Section 5, through appropriate litigation. And the reason that they upheld Section 5 as a temporary five-year intrusion on state sovereignty was because, case by case, Section 2 litigation was inadequate. No one in Congress in 2006 suggested -- they kept saying discrimination existed, but no one suggested the Section 2 case-by-case litigation was inadequate to remedy. Nobody...
REHMBut let me ask you whether you as an attorney see that any discrimination at the voting places has taken place in any of these states.
CARVINI don't think anybody's going to argue we've achieved a racial nirvana where there's no discrimination. I think there's a lot of discrimination in the uncovered jurisdictions like Arkansas and Pennsylvania. The question is...
REHMWell, would you then apply this exception to all states?
CARVINI think we have that in Section 2, which applies in all states and prohibits anything with a discriminatory result. The question again...
IFILLBy lawsuit after it happens.
CARVINWhich is how we enforce every anti-discrimination measure from employment to housing.
IFILLLet me add -- it's very nice for lawyers. It's not so great for voters in the community who are trying to exercise their fundamental right to vote. Let me just add one other piece here that's critically important. Congress did not set this in amber. Congress focused on those jurisdictions that it thought it needed to in order to ensure that there was a burden on the jurisdictions, rather than on the victims of discrimination, to prove that there wasn't discrimination. But it also created a door that swings both ways called bail in and bail out.
IFILLAnd what that means is that jurisdictions who are currently covered under the act can become uncovered. In other words, if they have a clean voting record for 10 years, they can apply to be removed from the strictures of the act. Every jurisdiction that has applied for bail out has been bailed out. And, in fact, so many jurisdictions in Virginia have been bailed out that Virginia looks like it's coming close to the point where it will be able to bail out. There's a bail out provision currently pending for all of the townships in New Hampshire that were covered by the act. So there's a way out of the act.
REHMI'm also fascinated, Michael, that Mississippi and North Carolina have joined a brief by New York solicitor general asserting that Section 5 has provided significant and measurable benefits in helping these covered jurisdictions move toward their goal of eliminating racial distinction.
CARVINRepublicans love Section 5. That's why they renewed it in 2006 with unanimous things because they love these majority-minority districts 'cause the adjacent districts next to them are perfect opportunities for Republicans to pick up the majority white districts, which is why you've seen in Congress and these covered jurisdictions over the last 20 years hardly any white Democrats left 'cause the Republicans have used it.
CARVINThat's why they support it. Everything I'm saying is totally contrary to my narrow partisan interests, and it just shows that these rules can be manipulated for political advantage, mainly to the advantage of Republicans.
REHMExactly tell me who's funding the Shelby lawsuit, Sherrilyn.
IFILLYou mean by Shelby County, Ala.?
IFILLI'm not in the position to actually know who's funding that lawsuit.
ROSENI don't know either.
REHMI understand it's the Project on Fair Representation that's also responsible for having found Abigail Fisher, the rejected University of Texas applicant who is the plaintiff in the pending challenge to race-conscious university admission policies. I'm going to open the phones now, 800-433-8850. And you're listening to "The Diane Rehm Show." Let's go first to Shelby County, Ala. Good morning, Tamryn. (sp?)
TAMRYNGood morning. Thanks so much for taking my call, Diane.
TAMRYNI just want to address shortly and specifically. I have a zillion examples on a piece of paper here, but I know I want to be short. I don't know what world Michael lives in, but in my world, in Shelby County, Ala., I happen to be a white 46-year-old registered Democrat. I've lived in Shelby County, Ala. for the past 20 years. We have one of the most racist states and racist counties in the world, and we certainly don't have access to services such as lawyers and big corporations to be able to plead our cases for us.
TAMRYNIf he were to take a week and spend it in the black South of Alabama, he would see there's truly still severe racial segregation happening in this state, and we need Section 5 to protect us in advance so that things like the Alaskan example -- that's more the kind of thing that we are fighting against here. We don't have boats (unintelligible) boats and planes to our polling stations, but we do need the protection of the federal government trying to help curb racism in the state.
TAMRYNI wish it was further along, but it's not.
REHMThank you for your call. Michael.
CARVINShe mentioned housing segregation. There's no pre-clearance requirement for housing. There's no pre-clearance requirement for employment discrimination. That's because Title VII and Title VIII of the Civil Rights Act are very effective remedies to bring it. Now the question again is why are these little villages in Alaska? Why is New York City being covered when Arkansas and Oklahoma are not?
CARVINEveryone agrees that Section 2 is more than adequate to solve any kind of voting discrimination, which, after all, is public in all aspects of the country. Why are these counties being singled out? Everyone keeps talking about Shelby County. I brought a case from Kinston, N.C., where majority -- it's a majority black city. Majority of blacks wanted to switch from partisan to nonpartisan local elections.
CARVINThe Obama Justice Department, through the most convoluted racial preference analysis, said going to nonpartisan elections was somehow racially discriminatory and struck it down. The Justice Department, a week before we were going to argue that case in the D.C. Circuit, woke up one day and said, oh, gee, we've changed our mind precisely so that we wouldn't be talking about the real facts of Section 5 enforcement, which is the Kinston, North Carolinas of the world and not the Shelby County example.
IFILLWell, that's so interesting because, I mean, it really shows you this kind of skewed view of really what is happening out there in America. I mean, there are countless examples. It's not just about the city of Calera. And that's what really Congress was engaged in when it engaged in that nine-month review.
IFILLIf you look at a place like Kilmichael, Miss., where, just as the black population began to be a majority, the mayor and the town aldermen decided just to cancel the election because they feared that now blacks would be a majority of the electorate. The Justice Department had to step in and had to do an enforcement action. And after they did that and there was an election, the town was able to elect a black mayor and three black aldermen.
ROSENI just wanted to give from the briefs a couple of other examples of continuing discrimination at the party's side. Section 5 recently blocked some voter ID laws. In Texas, there was a photo ID law that would have had a retrogressive effect. South Carolina had to reinterpret its voter ID law under the threat of the Section 5 challenge.
ROSENAnd other examples where pre-clearance was denied included jurisdiction with a large Hispanic population, which wanted to abandon Spanish translations of its election materials. There was a program to strike non-citizen voters from the voter rolls, and there was a municipality that rescheduled its election from November, where there's high turnout, to July, when there's low turnout, just as African-Americans reached the majority of the voting age population.
CARVINWell, that makes my point. He says striking non-citizen voters is a bad idea? I think we don't want non-citizens voting. Voter ID is going to be a contentious political issue that's going to be demagogued as some kind of racially discriminatory thing. I'll point out that all the action in terms of voter ID has largely been in Pennsylvania, Indiana and these other states which are not covered by Section 5 of the Voting Rights Act.
CARVINMost people think that's a very helpful ballot integrity effort. But if you don't agree with that, there's no reason that you have to have a bunch of people at the civil rights division, highly politicized Obama administration, making these decisions as opposed to neutral judges in a court of law.
REHMWhat about these voter ID issues?
IFILLJeffrey's absolutely right. First of all, it's important to remember that the Department of Justice pre-cleared voting ID efforts in a variety of states: Arizona, Georgia, Louisiana, New Hampshire, Virginia. They've got voter ID laws. These two voter ID laws, however, had to be stopped. And thank goodness for Section 5. Texas' was the most stringent voter ID law that had ever been proposed.
IFILLAnd the Department of Justice made the determination -- as a matter of fact, it wasn't Department of Justice, it actually was a court -- made the determination that it discriminated against minority voters. And in South Carolina, they actually, during the course of the litigation, had to keep changing their voter ID requirement to make it comply with the law. That shows that Section 5 actually works.
REHMSherrilyn Ifill, she's president and director-counsel for the NAACP Legal Defense and Educational Fund. Short break. We'll be right back.
REHMAnd welcome back as we talk about a very important voting rights case coming before the Supreme Court tomorrow. Here in the studio: Michael Carvin. He's former Department of Justice official in the Civil Rights Division during the Reagan administration. He's currently a partner at Jones Day.
REHMJeffrey Rosen is professor at the George Washington University Law School, legal affairs editor at The New Republic. Sherrilyn Ifill is president and director-counsel of the NAACP Legal Defense and Education Fund. Let's take a caller here in Washington. Benard, good morning. You're on the air.
BENARD SIMELTONGood morning. This is Benard Simelton. I'm president of the Alabama State Conference of the NAACP, and I'm actually in Alabama. And let me just say I believe that there are still tremendous discrimination that's going on in -- when it comes to voting. And I have seen that through people calling in during the last election about how their names was mysteriously removed from the rosters of the polls, open rosters.
BENARD SIMELTONAnd there seems to be, you know, that they've been voting in the same district, live in the same house, but, you know, 20-some years and their names disappeared. And additionally, President Obama has passed a law requiring a voter photo ID. And we are concerned tremendously about that as to how that's going to disenfranchise many of our voters who are elderly and who do not have a state-sponsored photo ID. And we think this will further serve to disenfranchise a tremendous amount (unintelligible).
REHMAll right. Thanks for calling. Jeffrey Rosen, how does this photo ID question get into this case that's going before the court tomorrow?
ROSENWell, the big change that Congress made in 2006 was to say that voting changes have to be pre-cleared not only if they have the effect of making it harder for minorities to elect representatives of their choice, but even if they were intended to basically disenfranchise minorities. And the Justice Department has concluded that, at least in certain cases like Texas, the voter ID requirements were adopted with the purpose of depressing minority participation. Now, the Supreme Court could respond to this claim in two ways. It could rule broadly or narrowly.
ROSENIt could strike down all of Section 5 and say that Congress just lacks any authority to require pre-clearance in advance. But it could rule more narrowly and strike down Section 4's coverage requirement. Basically, right now, a state is coverage -- covered if it's based on the record of minorities who registered a vote and those who actually go to the polls. The Supreme Court could say this is too loose. You've got to go back to the drawing board, Congress, and give Congress an opportunity to fix the (unintelligible).
REHMBut, on the other five, could -- on the other hand, could Section 5 be expanded to cover all states? Would that make it fairer?
ROSENThat is a very excellent lawyerly point, counsel. And you're quite correct.
REHMI told you I would attend your classes.
ROSENOf course, it's very good. No, we often -- when there's an equal protection challenge, there are two ways of fixing it. One is you can strike down the whole law and not allow it to apply to anyone. The other is you can expand the coverage and make it apply to everyone. And the court could, in theory, say New Hampshire is just as bad as Texas, therefore New Hampshire has to be covered too.
REHMWhat's wrong with that, Sherrill?
IFILLWhat's wrong with it is that, you know, Congress -- this is one of the times when they actually got it right. They created a structure that allows for the expansion and the contraction of the covered formula. So not only can some jurisdictions bail out, but jurisdictions also can be bailed in based on a finding, usually in a Section 2 case, that they have engaged in some kind of discrimination.
IFILLArkansas came in for certain kinds of voting changes as a result of successful Section 2 litigations and violations of the Constitution. So you can come in, and you can get out. Congress has already anticipated the possibility that you might need more jurisdictions.
REHMWhat's wrong with that, Michael?
CARVINWell, then why didn't Congress look at areas where, in recent years, we've got discrimination and start deciding that New Hampshire's out and New York City's out? Because they stuck with a formula that was devised in 1964, because they wanted to engage in willful blindness about this reality that a unanimous Supreme Court, again, acknowledge that there are more similarities than differences between the covered and non-covered jurisdiction.
CARVINIf they had extended the formula on basis on recent election returns, most of these jurisdictions in the South would be out and Hawaii would be the only covered state.
REHMAll right. Let's go to John in Leslie, Mo. Good morning. You're on the air.
JOHNGood morning, Diane. I would like for your panel to talk about Wisconsin's voter IDs laws. They have a voter ID law, and they did provide a place for the voters to get a state-issued ID law at one county. And the thing about that is, is that it was only open on the fifth Tuesday of the month. And in 2011, there was only five months with a fifth Tuesday. And now is that now voter suppression?
REHMThat's a good question. Do you see that as voter suppression?
IFILLYou know, the caller is really raising an excellent point, and I think that many Americans saw that in this -- in the last 18 months. There are a broader set of issues that have to do with access to registration and voting that, I think, many Americans are concerned about separate and apart from the issue of racial discrimination. And I think that's what the caller is referring to and those issues are urgent and important.
IFILLAnd they actually are of a piece with the questions that we're raising today, but they're part of the broader set of questions about democratic participation in this country. The Voting Rights Act was meant to address a particular form of exclusion, that Congress has the power to regulate through the 15th Amendment and through the 14th Amendment. And it's really important to remember -- I just have to say this because Michael Carvin has talked about the Justice Department where he once worked.
IFILLAnd I just think it's important to remember, the record that Congress looked at in 2006 was the record from 1982 to 2005. That's through Republican presidents and Republican administrations in the Department of Justice and Democratic administrations in the Department of Justice. They looked at that full record to determine that we still needed this medicine to cure voting discrimination.
REHMHere's an email question for Jeffrey Rosen from Dustin. He says, "The 15th Amendment supersedes the 5th and 14th. So why does implementing legislation passed under the 15th Amendment have to conform to the equal protection clauses?"
ROSENWhat a great constitutional question, and I think it's -- we might not quite say that any amendment supersedes another. All of them have to be read in conjunction with each other. So the 15th Amendment authorizes Congress to enact it, but it has to conform with the other provisions of the Constitution, including the 14th Amendment. So the equal -- but here's why the question is so good. If you believe in the original understanding of the Constitution, the framers thought that neither the 14th nor the -- that the 14th Amendment did not cover voting at all.
ROSENThey didn't think the political rights were covered, and that's why they thought the 15th was necessary. So for a justice like Justice Scalia or Justice Thomas who say that the amendment should be interpreted in light of its original understanding, they would hold that -- actually, the caller is quite correct and that the 14th Amendment equal protection clause does not apply to political rights. So it's quite a sophisticated point.
REHMAll right. To Grand Haven, Mich. Good morning, Mark.
MARKHi, Diane. Thanks for taking my call.
MARKI love your show.
MARKMy question is, why don't we get all up in arms about people having a driver's license? I'll take your answer off the air.
REHMIn other words, if you've got to have an identification to obtain a voter's -- driver's license, why get so upset about voter ID?
IFILLWell, I want to say, really, a little bit in response to this question and to Michael's earlier comments about housing discrimination and so forth. You know, voting -- and this is not my own view. This is what the Supreme Court has said. The Supreme Court has said that the right to vote is preservative of all rights. We have long considered voting to be something separate, something inviolate, something so important because it is how we express ourselves as citizens, unlike driving.
IFILLAnd, secondly, the issue of race discrimination is also something that the Supreme Court has elevated to a different level. That's why we look at cases involving discrimination with heightened and strict scrutiny. When these two come together, they bring us to a place that really is the very crossroads of our democracy.
IFILLAnd it's for this reason that Congress is empowered to take the kind of extraordinary measures that they've taken under the Voting Rights Act and why the Supreme Court, as they said in 2006, should be keenly mindful of its institutional role. Congress has the role to make the determination as to the necessity of this formula.
CARVINWell, in terms of a drivers' license, you need a voter ID to get into the Democratic convention. You need one to get into the Justice Department. Then it's a commonplace means of identifying if you are who you really are. Calling it voter suppression is a contrary to the facts. In Georgia, for example, and all of the South, registration and turnout increased after the voter ID requirements did not decrease.
CARVINWe see the registration and turnout in the covered jurisdictions is, again, higher in the covered jurisdiction than it is in the non-covered jurisdictions. The example that the caller gave was from Wisconsin, which is not a covered jurisdiction. So I'll ask again, why a voter ID is a completely legitimate policy in the states outside of the cover jurisdictions. Why all of a sudden does it become condemned to Justice Department condemnation within the covered jurisdictions?
ROSENYou know, as I listened to this discussion -- and I'm trying to be relatively descriptive and neutral. I'm actually sitting in the middle these two people...
ROSEN...who are getting very energetic here. But I'm struck by the fact that there are two competing strains in the court's jurisprudence. On the one hand, you have Bush v. Gore, which says, we have to carefully treat the right to vote as fundamental and scrutinize any change in the way ballots are counted. That opinion was actually applied right before Election Day to prevent Ohio from allowing military voters but not anyone else from voting over the weekend. And all the conservative justices are on board with that.
ROSENOn the other hand, you have increasing skepticism about the use of race either in affirmative action or in voting and the desire to narrow the degree to which Congress and the states can gauge in race conscious actions. It would be ironic, I think. Everyone might agree that at the same that the court is insisting that every ballot has to be treated like every other ballot in a presidential election, it's saying that race is the one factor that you can't take into account in trying to prevent discrimination.
REHMAll right. To Houston, Texas. Enana, (sp?) you're on the air.
ENANAHi. Thanks. In Texas, we have 31 senators and then we also count the lieutenant governor as a part of it. And it's required to have two-thirds present in order to have a vote. And in 2003, 11 Democratic senators left the state in order to avoid having a quorum because the Republicans wanted to redistrict it to favor Republicans.
ENANAAnd they managed to get one of them back, and that meant that they did have enough to have a two-thirds majority. And they did redistrict the state. And in the last two elections, the president haven't even -- the candidates haven't even bother to come here because they know that everything is going to be Republican here regardless of what anybody here thinks.
IFILLLet me address the law of unintended consequences, which is -- and Michael alluded to it earlier that political parties were used, all of these efforts to protect minority voters to their own ends. That doesn't change the reality that minority voters need protection. The fact that there is going to be partisan manipulation, I think, is a part of the political process. That's not what the Voting Rights Act was meant to address.
IFILLThe reality is that Congress -- hard to imagine today -- 366-33 in the House, 98-0 in the Senate voted in favor of reauthorization. Not one senator even though senators from the covered jurisdictions voted against the reauthorization of the Voting Rights Act. And so, you know, it's nice to put it in partisan terms. There's no question that there is manipulation of it. It doesn't change the reality that minority voters continue to urgently need this protection.
REHMAnd you're listening to "The Diane Rehm Show." Here's an email from Marilyn in Colorado, who says, "I've heard that the court considers social norms and values. So will the justices look at the 21st century equivalence of the poll tax in reviewing this case?
REHMFor example, in states like Pennsylvania, where Republican legislatures passed voter suppression laws last year, or any state where a Republican governor or secretary of state skimps on voting machines in heavily Democratic precincts so that 100-year-old black women must stand in line for six hours to cast a vote. These barriers are every bit as egregious as the old poll tax and literacy test." Are they not, Jeffrey?
ROSENWhat an eloquent question. And the caller is absolutely right that broadly the court does take into account social norms and tends not to get too far ahead of public opinion. And, of course, those are the kind of forms of covert discrimination that Congress took into account when it re-authorized the act. But the truth is that when it comes to race, the Supreme Court, at least the more conservative justices, tend to be quite firm in their view that the Constitution is colorblind and allows very little race consciousness.
ROSENAnd the truth is that the public is divided about that question. The polls suggest that it's about 50-50, really, and that also tracks the fact that we're divided as a partisan country. So Democrats tend to like these measures more than Republicans. For all these reasons, I think the court has free reign to impose its view if it wants, and it's unlikely to be swayed by the polls.
REHMAll right. So considering everything we've heard today, considering everything our callers and all of you have said, what do you think the outcome might be, Jeffrey?
ROSENPredictions are worth beans, but I think that it's fair to say that there is a good chance that the court will seriously restrict, if not completely strike down both Section 5 and Section 4 of the Voting Rights Act. The question is whether Chief Justice Roberts will find a way to do what he did last time, avoid a broad constitutional ruling on Section 5 and instead maybe tweak the coverage formula and basically give Congress one more chance to act before the court says that this act is unconstitutional.
CARVINThey've given -- the court has given Congress three opportunities to make Section 5 conforms to the reality of the 21st century. In Boucher, too, they changed the purpose requirement. In Georgia v. Ashcroft, they changed the effect requirement. They told them that this was designed to save Section 5. Congress in 2006 repudiated both of those decisions.
CARVINThree years ago in Northwest Austin they say, bring your coverage formula to conform with the realities of the 21st century. Congress ignored them. So they've already had three bites at the apple. I don't think that there's a way to make Congress do what it's supposed to be doing, which is actually look at where discrimination exists, and so it'll be struck down.
REHMSo it'll be struck down. And, Sherrilyn.
IFILLTomorrow morning, when one of our attorneys, Debo Adegbile, goes in the well of the Supreme Court and argues this case, he will be arguing to every justice from Thomas to Ginsburg because that's what we believe at the Legal Defense Fund that we have to ability to convince every justice of our position. And our own view, despite of the -- what I've just heard, which is quite sobering, it that the court will, in fact, uphold Section 5 of the Voting Rights Act. We really believe that the court is mindful of its institutional role.
IFILLAnd all of the considerations that have been said today and all of the view points that have been raised today, none have changed to the truth of the matter, which is, one, that it is Congress that has the authority to make this judgment, and, two, that the record before Congress and the reality of what we've seen in this country suggest that Section 5 is still urgently needed.
REHMSherrilyn Ifill, she is president and director general of the NAACP Legal Defense and Educational Fund, Jeffrey Rosen of the George Washington University School of Law, Michael Carvin, a partner in Jones Day. We shall await the arguments. And the decision will come this year, Jeffrey?
ROSENBy June. That's one thing we know.
REHMBy June. Thank you all so much. Thanks for listening. I'm Diane Rehm.
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