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The Franchise

Today, the Supreme Court of the United States will hear oral argument in a pretty big case: Shelby County v. Holder. This case involves the Section 5 “preclearance” provision of the Voting Rights Act of 1965. But to truly understand the case and its significance, you should know a bit of backgroun . . I know what you’re saying “I don’t want another post where you give us dry-ass legal analysis or history.” You are right, I don’t want to write another dry-ass post about legal analysis or history.” THAT’S WHY I WANNA INCLUDE .gifs to make it more fun. Shall we proceed.

The Fifteenth Amendment

Section I: “The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.”

This means even Morgan Freeman is allowed to vote, despite the fact I am pretty sure he was a slave at some point.

“Polls opened already?”

Section II: “The Congress shall have power to enforce this article by appropriate legislation.”

This is the key provision for the purposes of the case before the court today. It says it plain and simple in the Amendment that Congress has the power to enforce the franchise via “appropriate legislation.” But what is appropriate legislation? Well, in 1965, Congress finally got off its ass and drafted and passed some legislation after basically chilling from 1870 when the Amendment was ratified.

Section 5 Preclearance at-a-glance

Section 4 of the Voting Rights Act sets out a formula for which jurisdiction would be covered by Section 5. This so-called “coverage formula” was essentially based on the worst-offending places [mostly in the south] when it came to denying minorities the right to vote. You know the deal: poll taxes, grandfather clauses, literacy tests, putting the polling place somewhere only folk who had cars could get to it, etc.

Congress realized that these States couldn’t be trusted to, you know, ENFORCE THE DAMN CONSTITUTION ON THEIR OWN

Section 5 says that when these “covered jurisdictions” want to make changes to voting procedures, and the Attorney General objects to a change, the covered jurisdiction may appeal to the District Court for the District of Columbia. Alternately, if it doesn’t want to go through Attorney General Holder, it can seek a declaratory judgement from that same District Court. This would basically involve the court looking over the proposed plan, and issuing a judgment saying that it doesn’t, well, disenfranchise thousands of minorities under the guise of “voter fraud.”

“In this Court’s opinion, you’re A-ok, Alabama.”

The Court has been on the side of an expansive interpretation of this provision:

“The Voting Rights Act was aimed at the subtle, as well as the obvious State regulations which have the effect of denying citizens their right to vote because of their race. Moreover, compatible with the decisions of this Court, the Act gives broad interpretation to the right to vote, recognizing that voting includes “all action necessary to make a vote effective.”

Allen v. Board of Elections, 393 U.S. 544 (1969)

With this broad interpretation firmly in hand, the Court has noted that this does not only mean changes in policies that would affect whether minorities in a covered jurisdiction can vote at all, but also whether, if they can vote, whether the minorities can elect a representative of their choice. For example, take a jurisdiction that has 12 voting districts, the Blacks in this jurisdiction are spread pretty evenly throughout the jurisdiction, but they do not comprise a majority of any one voting district. Then suppose that each district has a representative that must be elected from the residents of that district. Thus, even if all the Blacks in a single voting district voted for a single candidate, the Blacks would always be outnumbered by whites and thus could never elect the representative of their choice. Get it?

Representative just tryna get choooooooo-ooooo-ooooooseee.

It should be noted that the Department of Justice reviews thousands of preclearance requests each year, and approves nearly all of them.

ENTER: Shelby County

Congress renewed the Voting Rights Act in 2006 for another 20 years, but Congress did not modify the coverage formula from Section 4. That formula is old now. Shelby County, Alabama, is today asking the Court to declare Section 5 of the Voting Rights Act unconstitutional. The county has been covered since 1965, and I guess they are just plum-tuckered-out of having to ask Daddy if its ok to infringe on the voting rights of minorities. In essence they are arguing since the current coverage formula is old, the Section 5 preclearance provision is based on an objective reality that is no longer the case. The county lost at the trial level. And lost at the Circuit level. But the Supreme Court just after the election in 2012 granted cert.

The scene when the Court granted certiorari

Shelby county wants the Court to believe that the coverage formula is out-of-date and thus is not the appropriate legislation to tackle any provisions that would tend to infringe on the rights of minorities to vote, but at the same time the county does not concede that any proposed changes might infringe on minorities’ right to vote, oh, and also, even if there are provisions that infringe on minority voting rights, there are other, less extreme ways to curtail the infringement.

The county is really trying to cover all the bases. Might not work out for them

So in sum, we can only hope that the Supreme Court defers to Congress in the appropriate legislation to curtail the infringement of voting rights.

Continue to question the world around you.

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