Is the Voting Rights Act Constitutional?
About This Event

On April 29, the U.S. Supreme Court will hear arguments to decide whether Section 5 of the recently reauthorized Voting Rights Act is constitutional. The case, Northwest Austin Municipal Utility District Number One v. Holder, has been described as "the biggest election-law case on the court's docket since Bush v. Gore" and one that "will set the direction of the debate over race and politics for years to come."

Reauthorized for the next twenty-five years in 2006, Section 5 requires nine states (mostly in the deep South) and parts of seven others to get "preclearance" from the U.S. Justice Department or the U.S. District Court for the District of Columbia before any election procedures can be altered. Any change--as small as moving a polling location across the street or as large as redrawing an entire congressional district--must be preapproved by the federal government. This preclearance provision is unmatched in our nation's system of federalism.

With this case, the Court will be asked whether cities, school districts, and--in the case of the appellant--utility districts are allowed to use Section 5's "bail out" provision to be released from federal oversight. If not, the Court will face an even larger question: did Congress find enough evidence of gamesmanship directed against minority voters to justify reauthorization of the Voting Rights Act, or did it overstep its authority? At this panel discussion, scholars and attorneys representing each side will discuss the legal and political issues the case raises. AEI visiting fellow Edward Blum will moderate.

Agenda
Event Summary

WASHINGTON, MAY 8, 2009--Is Section 5 of the Voting Rights Act (VRA), praised as one of the most successful pieces of civil rights legislation in United States history, constitutional? Does it violate our nation's federal system? On April 22, in anticipation of the Supreme Court's hearing of Northwest Austin Municipal Utility District Number One v. Holder, AEI visiting fellow Edward Blum convened a panel of voting rights experts to discuss the constitutionality of Section 5 and whether it is still needed today.

Passed in 1965, the VRA was an exercise of Congress's special powers--enumerated in the Fourteenth and Fifteenth Amendments--to respond to discriminatory electoral practices in the Jim Crow South by ensuring equal protection of the laws, especially concerning voting rights. Section 5 of the VRA specifically required nine states (mostly in the deep South) and parts of seven others to obtain "preclearance" from the Department of Justice before any  change--as small as moving a polling place--could be made to electoral procedures.

As Blum noted in his introduction, "a preclearance requirement is unmatched in our federal system." Traditionally, any locality, municipality, or state that engages in discriminatory practices is held accountable through adjudication on a case-by-case basis. Section 5, as noted by Gregory Coleman of Yetter, Warden & Coleman, instead "presumes that activities will be discriminatory" at the local level, even though "any violations that we do see are not limited to covered jurisdictions." Recently, when electoral discrimination has been discussed, it has largely been about noncovered jurisdictions, such as Florida and Ohio. Regarding Section 5's reauthorization, Coleman went on to explain that "one thing we don't see in the congressional record is any effort whatsoever to evaluate in any meaningful way the covered jurisdictions and noncovered jurisdictions to find out what are the worst places." Ultimately, if the records of discrimination do not demonstrate covered jurisdictions as more likely to have discriminatory proclivities, then why should they have to wear the "scarlet letter" of electoral practices created by the preclearance requirement?

The answer, according to Kristen Clarke of the NAACP Legal Defense and Education Fund, is that "noted progress in discriminatory records is directly attributable to Section 5" in covered jurisdictions. She explained that Section 5's importance cannot be understated, as "no law has done more to address the problems that have plagued our electoral process than the Section 5 preclearance provision." Jon Greenbaum of the Lawyers' Committee for Civil Rights Under Law largely agreed, adding that since Congress has special, sweeping powers in cases concerning civil rights and election law, and since Section 5 has been exceptionally successful in preventing racially targeted electoral practices, its constitutionality should be upheld. Clarke argued that the court should defer to the will of Congress; the Senate reauthorized the VRA in 2006 with a 98-0 vote.
A unanimous vote does not necessarily mean the provision is constitutional, however, said Richard Pildes, a law professor at New York University. He acknowledged the constraints on members of Congress to vote for the VRA; to do otherwise could amount to "political suicide."

The constitutionality of Section 5 will ultimately be decided in Northwest Austin Municipal Utility District Number One v. Holder, which was heard on April 29 and which has been described by the New York Times as "the biggest election-law case on the court's docket since Bush v. Gore" and one that "will set the direction of the debate over race and politics for years to come." Stepping back from the question at hand, Pildes pondered a question with deeper currents: is the United States even able yet to have a constructive discussion on changing civil rights policy? This landmark Supreme Court case should give us an idea.

--JON FLUGSTAD

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Speaker biographies

Edward Blum is a visiting fellow at AEI and the director of the Project on Fair Representation. Mr. Blum studies civil rights policy issues such as voting rights, affirmative action, and multiculturalism. Prior to joining AEI, he facilitated the legal challenge to dozens of racially gerrymandered voting districts, race-based school admissions, and public contracting programs throughout the nation. Mr. Blum is the author of The Unintended Consequences of Section 5 of the Voting Rights Act (AEI Press, 2007).

Kristen M. Clarke is codirector of the Political Participation Group at the NAACP Legal Defense and Educational Fund, where she oversees and coordinates the activities of the organization's legal program in the areas of voting rights and election law. She provided significant legal advocacy during Congress's 2006 reauthorization of the expiring provisions of the Voting Rights Act, helping to significantly shape and inform the congressional record. Ms. Clarke has also provided testimony to Congress regarding election reform issues. Her voting rights litigation experience includes a challenge to a statewide redistricting plan and vote dilution claims, among others. Previously, Ms. Clarke worked for several years in the civil rights division of the U.S. Department of Justice. Ms. Clarke writes and comments frequently on issues concerning race, law, and democracy. She is the coeditor of Seeking Higher Ground: The Hurricane Katrina Crisis, Race, and Public Policy Reader (Palgrave Macmillan, December 2007). Her writing has appeared in a number of books, including the American Bar Association's book on modern American election law and voting rights, America Votes! (March 2008).

Gregory S. Coleman heads Yetter, Warden & Coleman's appellate litigation practice. He has handled appeals across a broad spectrum of litigation categories, including complex business torts, class actions, securities, products liability, insurance, bankruptcy, telecommunications, intellectual property, accounting malpractice, constitutional litigation, and governmental representation. Mr. Coleman is board certified in civil appellate law and has successfully represented clients before the U.S. Supreme Court, the U.S. Courts of Appeals, and numerous state supreme courts and intermediate courts of appeals. He previously served as solicitor general for the state of Texas, where he was lead appellate counsel for the state. He has also clerked for Edith Hollan Jones on the U.S. Court of Appeals for the Fifth Circuit and for Clarence Thomas on the U.S. Supreme Court. He was an adjunct professor at South Texas College of Law and at the University of Texas School of Law. Mr. Coleman currently serves as vice chair of the board of the Texas Department of Criminal Justice. He also serves on the board of the American Red Cross of Central Texas.

Jon M. Greenbaum is the legal director for the Lawyers' Committee for Civil Rights Under Law, where he is responsible for overseeing the committee's efforts to seek racial justice in the areas of employment discrimination, environmental justice, community development, and housing discrimination. Mr. Greenbaum also serves as the director of the Voting Rights Project, where he is responsible for the Lawyers' Committee's program to achieve equality and protect advances in voting rights for racial and ethnic minorities and other traditionally disfranchised groups. Mr. Greenbaum has testified before Congress; presented at many of the nation's finest universities; and discussed voting rights issues in the media, including CNN, C-SPAN, Fox News, National Public Radio, the New York Times, The New Yorker, the Los Angeles Times, and the Washington Post. Mr. Greenbaum is an adjunct professor at Georgetown University Law Center and coauthor of the chapter on voter identification in America Votes! (American Bar Association, March 2008). From 1997 to 2003, Mr. Greenbaum was a senior trial attorney in the voting section at the U.S. Department of Justice, and from 1993 to 1996, he was a litigation associate at Dewey Ballantine.
 
Anne W. Lewis is a partner in the Atlanta law firm of Strickland Brockington Lewis. Her practice focuses on election-related litigation, including redistricting, voting cases, election contests, and candidate qualifying challenges. Along with her cocounsel, Ms. Lewis represented a bipartisan group of minority voters in Georgia v. Ashcroft. In Larios v. Cox, that same group of lawyers represented another bipartisan group of voters challenging the state's legislative redistricting plans. The Larios court struck down and redrew the Georgia Senate and House of Representatives plans, and the U.S. Supreme Court summarily affirmed the decision by an 8-1 vote. Ms. Lewis is currently the chief deputy general of the Georgia Republican Party and in May 2009 will become the general counsel. She is the cochair of the Georgia Supreme Court's Committee on Civil Justice, Georgia's access-to-justice commission; a member of the executive board of the Atlanta chapter of the Federalist Society; vice chair of the board of directors of the Georgia Resource Center; and a member of the State Bar of Georgia's Indigent Defense Committee.

Anthony Peacock is an associate professor in the political science department at Utah State University, where he is also the director of the Project on Liberty and American Constitutionalism. He practiced civil litigation in Toronto from 1989 to 1992 and is the author or editor of five books, including Deconstructing the Republic: Voting Rights, the Supreme Court, and the Founders' Republicanism Reconsidered (AEI Press, 2008); Affirmative Action and Representation: Shaw v. Reno and the Future of Voting Rights (Carolina Academic Press, 1997); Rethinking the Constitution: Perspectives on Canadian Constitutional Reform, Interpretation, and Theory (Oxford University Press, 1996); Guide to the Federalist Papers (forthcoming from the Heritage Foundation); and Freedom and the Rule of Law (forthcoming from Lexington Books). Mr. Peacock has also published numerous articles, book chapters, and book reviews on American and Canadian law and politics. His work has been cited by the Supreme Court of Canada. He has provided radio commentary on state and national politics and has lectured on American politics and law both nationally and internationally. At Utah State, Mr. Peacock teaches courses on constitutional law; constitutional theory; law and policy; and law, politics, and war.

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