Rights Act violated the Constitution. Champion Briefs February 2013 Public Forum Brief
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The Evidence Standard ___________________________ 3
Topic Analyses _________________________________ 7 Topic Analysis by Danny Rego ______________________________ 8 Topic Analysis by Ethan Goldstein _________________________ 13 Topic Analysis by Grant Sinnott ___________________________ 19
General Information ____________________________ 23
Possible Frameworks ___________________________ 43
Pro Arguments with Con Responses _______________ 50 Court Ruling Followed Prior Court Precedent _________________ 51 A/2: Court Ruling Followed Prior Court Precedent __________ 55 Discrimination Against States Always Unconstitutional _________ 59 A/2: Discrimination Against States Always Unconstitutional ___ 62 Discrimination Against States Lacks Reason _________________ 66 A/2: Discrimination Against States Lacks Reason __________ 69 States Should Be Treated Equally ___________________________ 72 A/2: States Should Be Treated Equally _____________________ 75 States Have the Right to Self-Govern _________________________ 78 A/2: States Have the Right to Self-Govern __________________ 81 Disparate Impact _________________________________________ 84 A/2: Disparate Impact ___________________________________ 89 Violations of Federalism ___________________________________ 94 A/2: Violations of Federalism ____________________________ 102 Judicial Review and Limiting Federal Power _________________ 107 A/2: Judicial Review and Limiting Federal Power __________ 111 Outdated Formula _______________________________________ 117 !"#$% '( )'*+%*+, -%#./".0 1234
!"#$%&'( *+&,-. 5 A/2: Outdated Formula _________________________________ 122 Section 2 Necessary ______________________________________ 127 A/2: Section 2 Necessary ________________________________ 131 15th Amendment Violations Prevented by Section 3 ___________ 140 A/2: 15th Amendment Violations Prevented by Section 3 _____ 140 Court Ruling Protects Voting Rights with Section 5 ____________ 144 A/2: Court Ruling Protects Voting Rights with Section 5 _____ 148 Equal Sovereignty and Equal Protection _____________________ 152 A/2: Equal Sovereignty and Equal Protection ______________ 156 Unconstitutional due to Necessary and Proper Clause __________ 160 A/2: Unconstitutional due to Necessary and Proper Clause ___ 164 Overstep of the Federal Government ________________________ 168 A/2: Overstep of the Federal Government _________________ 171
Con Arguments with Pro Responses ______________ 176 Covered Jurisdictions Still Have Worst Voting Conditions ______ 177 A/2: Covered Jurisdictions Still Have Worst Voting Conditions 181 The Decision Invalidates Section 5 Unjustly __________________ 184 A/2: The Decision Invalidates Section 5 Unjustly ____________ 189 Section 2 of the VRA is an Imperfect Replacement ____________ 192 A/2: Section 2 of the VRA is an Imperfect Replacement ______ 196 The VRA is Preferable to New Legislation ___________________ 199 A/2: The VRA is Preferable to New Legislation _____________ 204 Supreme Court Should Practice Severe Judicial Restraint ______ 207 A/2: Supreme Court Should Practice Severe Judicial Restraint 212 Elections Clause Allows Congress to Choose __________________ 216 A/2: Elections Clause Allows Congress to Choose ___________ 220 Section Five is the Constitutional Flaw, not Section Four _______ 223 A/2: Section Five is the Constitutional Flaw, not Section Four _ 226 Preclearance Still Necessary _______________________________ 229 A/2: Preclearance Still Necessary ________________________ 232 Decision Removes Progress Made to Provide Equality _________ 236 !"#$% '( )'*+%*+, -%#./".0 1234
!"#$%&'( *+&,-. 5 A/2: Decision Removes Progress Made to Provide Equality ___ 239 States Dont Need to be Treated Equally _____________________ 242 A/2: States Dont Need to be Treated Equally ______________ 246 State Equality is not a Constitutional Requirement ____________ 248 A/2: State Equality is not a Constitutional Requirement _____ 251 Different Coverage Formulas not Politically Possible __________ 254 A/2: Different Coverage Formulas not Politically Possible ____ 259 15th Amendment Grants Congress These Powers _____________ 262 A/2: 15th Amendment Grants Congress These Powers _______ 267 Civil Rights Questions are Answered by Congress _____________ 270 A/2: Civil Rights Questions are Answered by Congress ______ 274 There is still a need for Section 4 of the VRA _________________ 277 A/2: There is still a need for Section 4 of the VRA ___________ 282
Topic Analyses Champion Briefs February 2013 Public Forum Brief !"#$% '()*+,$, -+ .)((+ /01" 20-34)3+ 5678
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Resolved: The Supreme Court rightly decided that Section 4 of the Voting Rights Act violated the Constitution.
Being frustrated with this topic at first glance is completely legitimate. Constitutionality is always a tough issue to debate, but this topic is not only about that. The Supreme Courts decision surrounded the issues of discrimination, federalism, and timeliness. These are issues that reach into the deep recesses of our country and its history. My main issue with this topic is not the issue of individual rights and the Supreme Court but rather with the constitutional issue that the NFL chose to examine.
This topic is not only narrow but it is difficult to access because the topic is worded in a way saying not that that Section 4 is unconstitutional but rather that the decision was correct. This limits the debate in an unnecessary way because it will force teams from the Affirmative to either debate the same arguments made by the Supreme Court or deal with frameworks by the Negative that attempt to force them into that advocacy. The wording of the topic makes is unnecessarily ultra-specific and this is going to lessen the quality of debates because teams wont be able to access a plethora of constitutional ground. Additionally, limiting the debate to this one section reduces the ability for this debate to come down to different issues in every round. Im not suggesting that the topic should have been whether or not the Voting Rights Act itself was unconstitutional; what I am suggesting is that the other topic regarding religious exemptions would have been the lesser of the evils because that would at least allow debaters to discuss the !"#$% '()*+,$, -+ .)((+ /01" 20-34)3+ 5678
!"#$%&'( *+&,-. 9 extent to which rights apply. This topic is not one about rights but rather if the system in place to correct for rights infringements is still valid or not.
So how do teams win on this topic? The first thing that each team needs to establish is how the Supreme Court ought to operate when it interprets the Constitution. This is vital to answering the question of whether or not they decided correctly because the answer will most certainly change depending on how they are supposed to interpret the Constitution as well as what their role within society is. This can either be done at the framework level or the contention level. The framework level is more practical because it makes it an overarching argument within the round as opposed to an argument that can be beaten and then ignored. This is an argument that will be the internal link of either teams case because it will determine whether or not your arguments answer the question based upon the Courts calculus.
The second thing that is necessary for both teams is establishing the grounds on which the round will be decided. What I mean by this is that you need to establish and explain the main issues concerning the constitutionality of Section 4. This will be weaved through the contention level arguments of your case and will be the core tenets of your voting issues at the end of the round. On both sides, you will have multiple different ways of linking into the decisions constitutionality, but ultimately it will come back to those main core tenets that I mentioned at the beginning of this topic analysis. This will make it easier for you to boil down the round to a few main arguments regarding the validity of Section 4. This is key because constitutionality is a difficult topic to relay to judges because there is very little room to weigh; if you prove your constitutional arguments and warrants, then the impact is simply that the Section is constitutional !"#$% '()*+,$, -+ .)((+ /01" 20-34)3+ 5678
!"#$%&'( *+&,-. 76 or not. Essentially, this topic is going to be much more focused on the link debate than on the impact analysis.
The third thing that both teams need to do is understand the history and precedent that followed the Voting Rights Act, its amendments, and its history in the U.S. court system. These can change the course of the round if you are not fully informed because the precedent is bilateral but some cases are more applicable or are better apt to helping judge the question of whether or not this section is topical. Moreover, it is important to note that both teams are most likely going to have to argue the role that precedent plays within the court system as well as the burden of proof necessary to deem something unconstitutional or constitutional. On the Affirmative, you are going to want to argue that the court must interpret the Constitution in such a way that looks to the potential harms to the individual citizens rights, which means that they have a lower burden of proof to rule something as unconstitutional. On the Negative, you should argue that the Supreme Court ought take the greatest care when ruling something unconstitutional because the legislature has the power to enforce laws and the Constitution through appropriate legislation. The Supreme Court should only intervene with legislative powers when absolutely necessary, which means that there is a higher burden of proof in order to rule something unconstitutional.
Teams need to be careful about how they are going to choose to interpret the resolution because it can change the course of the round. In the Framework section, we analyze a few different ways to approach the topic. One way is for you to analyze it in the sense of looking at the specific decision made and whether or not it was correct in its entirety. This will allow you to !"#$% '()*+,$, -+ .)((+ /01" 20-34)3+ 5678
!"#$%&'( *+&,-. 77 make many different arguments on the negative that the decision didnt encompass everything it needed to or that it was insufficient. You can also choose to interpret the resolution in a manner that says the decision was made and that you only need to come to that same conclusion in order to win the round. This will allow you to answer the question of the resolution in multiple different ways to allow for the most amount of diversification.
On the Affirmative, the most compelling strategy would be one that approaches the case in totally different ways. I would recommend arguing that the formula based on old data is no longer applicable because the times have changed and discrimination is no longer as prevalent as it was back in the day. This would make Section 4 unconstitutional because it creates an undue burden on states. The second possible argument that is compelling is that because this section does not apply to all states equally, it does not meet the standard of all states being equally sovereign. Under this argument, you can also argue that this is an undue infringement upon state rights by the federal government, which is compounded by the fact that it isnt applicable to all states equally. Another approach is to explain that because current precedent is not applicable (because the precedent doesnt deal with the timeliness aspect), the Supreme Court has to create a precedent that answers the troubling question in order to prevent infringement upon rights in the future. The last argument that I find compelling is the idea that the decision rightly decided that other sections, such as 3 or 5, are constitutional, which circumvent the unconstitutional aspects or risks of constitutionality of Section 4; thus the Supreme Court rightly decided.
On the Negative, the first argument that should be at the top of the case is the idea that discrimination is still prevalent within the U.S. or in the regions defined by the law and, thus, !"#$% '()*+,$, -+ .)((+ /01" 20-34)3+ 5678
!"#$%&'( *+&,-. 75 still remains necessary. Second, I would argue that the Supreme Court needs to practice strict restraint in order to prevent an infringement upon legislative powers when such an infringement is unwarranted. Third, I would argue that the sections that the court did uphold, such as Section 5, couldnt be used without Section 4 being in place because it invalidates the main tenets of the law. Overall, I think that both teams are going to have a difficult time finding clash in a round when there a so many topic interpretations and arguments that follow it.
Good Luck!
About Danny Rego
Danny Rego attended and competed for University School of Nova Southeastern University and graduated in May, 2012. He competed in Public Forum Debate throughout his entire 4 years of high school. He won the Tournament of Champions (2012) and Crestian Classic (2011). He was a finalist at the Florida State Tournament and the Crestian Classic (2012). He was a late elimination round competitor at the Glenbrooks, Emory, and Apple Valley. Danny is currently a sophmore at Northeastern University majoring in International Business and minoring in International Affairs and Economics. He spends his summers instructing at the Champion Briefs Institute.
Before I begin my Topic Analysis, I would like to introduce myself to our readers. I am Ethan Goldstein, a former 4-year Public Forum debater from American Heritage School. And yes, my partner did win Nationals in Congress. Now that weve gotten the awkward first introduction out of the way, lets delve into the topic of arguably the biggest month on the PF circuit.
Resolved: The Supreme Court rightly decided that Section 4 of the Voting Rights Act violated the Constitution.
I have to say that February is one of my favorite months of debate and this year, like past years, the February topic is very straightforward. Unfortunately this year, the resolution is very straightforward about a very confusing issue. Basically, I dont think you should worry about arguing definitions, but the subject matter of Section 4 is very difficult to understand.
So lets first begin with some background information on the Voting Rights Act and Section 4. The Voting Rights Act was passed in 1965 and was aimed at reducing electoral corruption and discrimination by creating something known as preclearance. Preclearance forced all districts that met a certain requirement to get approval from the U.S. Attorney General or a 3-judge panel of the U.S. District Court of D.C. if they wish to make any changes that could affect voting. Shelby County v Holder (2013), the case in question, struck down Section 4(b) as Unconstitutional. The court ruled that the criterion used outdated data and thus put an !"#$% '()*+,$, -+ ./0)( 1"*2,/3$( 43-56)5+ 789:
!"#$%&'( *+&,-. 9: Unconstitutional burden on the federal government to oversee this state issue of voting. This specific section established the criterion for a district needing preclearance. It is very important to recognize that Section 4(b) only determined the criterion. However, once ruled Unconstitutional, preclearance can no longer be practiced until or unless new legislation is passed. It is also very important to realize that the Section 4(b) standards only applied to very few states, mostly in the south. This means that the law was never some sweeping mandate used across the entire nation, but rather it was instituted as a check and balance on racial discrimination.
For this topic, it is very important to know the constitution. Obviously Im not suggesting that you all become Constitutional scholars in a week, but definitely brush up on your Constitutional knowledge. Knowing more than your opponents about the constitution can be an effective way at refuting your opponents contentions without cards that specifically relate to the arguments your opponents use. As discussed earlier, there is a short turnover from January to February so the amount of research you compile may be less than you compile for other tournaments. But a broader knowledge of the constitution can a) make your opponents lose credibility with the judge; and b) allow you to effectively refute without reading card after card after card.
I believe the nature of this topic will tend to favor debaters who analyze arguments rather than just simply read cards. I honestly believe that a second speaker can give a brilliant rebuttal only using one or two cards. I think judges will prefer analytics to card reading because the resolution begs the debaters (you guys) to tell the judge WHY, not WHAT. Why was the !"#$% '()*+,$, -+ ./0)( 1"*2,/3$( 43-56)5+ 789:
!"#$%&'( *+&,-. 9; Supreme Court right or not right in making this decision? For example, while with past topics you could read cards that essentially say According to this professor from this prestigious university, my opponents are wrong, I can guarantee that you will not be able to get away with that on this topic. So brush up on your Constitutional knowledge and focus on analyzing and explaining rather than just card reading.
This resolution, unlike past topics, is not asking the judge to choose between two different options, but rather this resolution is a truth test. The Supreme Court did strike down Section 4 of the Voting Rights Act, now lets debate if they were right in doing so. A lot of you will be coming off a very busy month of January and as such the turnover between topics is fairly short. This will require some strategic prepping. Given the wording of this topic, you probably are not going to win rounds off case turns. In other words, because this topic is a truth test, dropping ones case and hoping to win off turns read in rebuttal is not the best decision when trying to win rounds. Instead, I suggest having well-warranted, strong cases that you can win with independently of winning your opponents case. I think this topic more than any other so far this year could come down to which team has the better case.
I think that most rounds will be won in the framework debate. Some of you will love this and others will find this too nitpicky for your liking. Regardless, I truly believe that all cases should absolutely have some sort of framework establishing the mechanisms you will be using to analyze the Constitutionality of this decision. Teams should be analyzing Constitutionality on pillars such as Federalism, popular sovereignty, voter turnout, etc. Because this topic applies specifically to voting regulations; think back to the Citizens United topic and remember some of !"#$% '()*+,$, -+ ./0)( 1"*2,/3$( 43-56)5+ 789:
!"#$%&'( *+&,-. 9; the Constitutional standards you debated. Ideas such as voter turnout, voter knowledge, voter responsiveness, and voter fairness could all be applied to this topic. My suggestion is to write a framework that includes a few of these democratic ideals, tell the judge why these are the most important in analyzing the Constitutionality of the decision, and write contentions that support that framework.
Lets look specifically to the Pro side of this debate. Because a judge could be very opinionated about this topic, I think its important to point out that you are debating Constitutionality, not your personal feelings. With that being said, I think the pro should use the courts decision to its advantage. What I mean by this is use the courts reasoning to develop your arguments. The court ruled that the coverage formula was outdated considering it was implemented over 40 years ago. I think you could use that line of logic to your advantage and explain that since the Constitution is a living, breathing document, things need to be changed over time. I also believe the pro could make a compelling argument that the U.S. has undergone dramatic changes since the 1960s and that the Voting Rights Act is no longer required. I think you could back this argument up by giving statistics about minority voting rates in recent elections.
I think another good way for the pro to win rounds is via Federalism. You could easily argue that Section 4(b) gave the federal government too much power over the states to determine voting regulations for the states. I also think Pro could make the argument that not many districts were affected to begin with and then challenge the negative team to show some dramatic change that will happen as a result of the decision. I think the best way for Pro to approach the round is !"#$% '()*+,$, -+ ./0)( 1"*2,/3$( 43-56)5+ 789:
!"#$%&'( *+&,-. 9; based strictly on Constitutionality rather than emotions, and challenge the negative team to show absolute harms that will occur as a result of the decision.
On the Con side of the debate, I think debaters should stress that current voting habits are nowhere near equal and that Section 4(b) is absolutely necessary to insure an equal and fair election system. I think Con should focus on the Constitutional standards of equality and fairness. Con could present a very compelling case arguing that currently there are still issues with electoral equality and fairness, prove that Section 4(b) reduces that inequality, and ague that decreasing fairness in anyway is antithetical to Constitutional views. I think most judges will want to side with the Con based on personal views, so use that to your advantage. Good negative teams will argue that inequality and unfairness in elections has been decreasing over time and find evidence that attributes that success to the Voting Rights Act. The Con has the ability to play the speculation game. They can easily make the argument that we will not truly know what will happen as a result of the decision and that the devil you know if better than the devil you dont know. Pigeonhole the affirmative into defending an election system with no check on racial discrimination or force them explain how new legislation could solve this problem better. The negative team should be constantly asking the affirmative to explain how taking away checks and balances on racial discrimination could possibly lead to a more democratic society.
I think Pro is a more technical side, while I think Con can use some bigger picture ideas to their advantage. With that being said, I am extremely excited to see this topic debated as a bit of a Constitutional scholar myself. Good luck to everyone in the monster month that is February and I hope to see many of you at Harvard! !"#$% '()*+,$, -+ ./0)( 1"*2,/3$( 43-56)5+ 789:
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About Ethan Goldstein
Ethan Goldstein attended and competed for American Heritage in Florida for four years and graduated in 2013. During his career, he championed the 2013 NCFL Grand National Tournament, the 2012 Wake Forest Earlybird, and the 2011 & 2012 Villager Invitational. Additionally, he was a finalist at Emory, the Sunvitational, and the Sunvitational Round Robin and was named the top speaker at the 2012 Tournament of Champions. He currently attends the University of Florida where he is studying political science and economics.
Resolved: The Supreme Court rightly decided that Section 4 of the Voting Rights Act violated the Constitution.
Due to the narrow nature of the fundamental question of this resolution, several factors that may not play as large of a role in other resolutions will become more critical for success. The first area we will look at is one (that my topic analyses dont normally touch on) is the history of the conflict and why this resolution has been chosen. Rob Teilhet offers one of the best explanations of the problems of the past that I could find. He explains:
Prior to the Voting Rights Act, voter suppression and intimidation were widespread and institutional. Schemes designed to keep African-Americans from voting were commonplace and barely disguised usually in the form of a poll tax, literacy test or grandfather clause. In 1965, Congress passed the Voting Rights Act, designed to outlaw discriminatory voting practices that had led to the widespread disenfranchisement of African-Americans. 1
By understanding from where this law comes, discrimination, and racism in south, we are better able to understand the constitutional challenges of today. The voting rights act clearly
" Teilhet, Rob. "Our election politics: Present just like past."University of Georgia. (2013 ): n. page. Web. 7 Jan. 2014. <http://blogs.ajc.com/atlanta-forward/2013/02/25/voting-rights-act- debate/>.
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!"#$%&'( *+&,-. 56 empowers minorities with special protection, but are these protections still needed and are they fair to all citizens? To better understand the questions of this resolution, it is necessary to look at the scoop and overreaching impact of the section. This section has been used in a host of cases to stop things like voter ID laws from coming into fruition; I would suggest further research specific actions that this law has been used to stop. Before engaging in the debate of whether or not the benefits of the law are good or bad / right or wrong, I think it is important to ask whether it is the role of the judiciary and the constitution to fix the problems that this law is meant to stop or the role of the legislature. This debate could be answered on two levels in my mind. The first is a pragmatic level. It could be argued that judicial activism is needed because the legislature is failing to do its job to pass policy. On the other side, it could be argued that because the law has existed, the legislature has felt no need to pass policy and that this decision has overstepped the role of the judiciary, who some would argue exist solely to interpret. This debate stems back into a discussion of whether the SCOTUS should interpret the constitution as a living document one that is fluid and needs to be changed or as a set in stone set of instructions that should not be altered. Interesting justifications for both sides surely exist, but I think the best example is that if we interpreted the constitution strictly, the practice of slavery still might exist today. With this in mind, I think intuition suggests that almost anything is and should be up for change, but there are most definitely people with other lines of thought. I like how these arguments are directly predicated around the idea of constitutionality, by defining the way the document should be interpreted it will become easier for teams to defend their own arguments and attacks others. When thinking about the substance of this topic, I imagine many teams will carve out specific advocacies about how without this section X policy !"#$% '()*+,$, -+ ./)(0 1$(("00 23-/4)/+ 5678
!"#$%&'( *+&,-. 57 will pass that will cause Y rights violation that violates Z part of the constitution. Luckily the decision was made on a 5-4, so there is clearly room for contention on the issue, and I dont think arguments about SCOTUS being the best decider are going to work. Anyways, these niche positions are a creative way to frame the topic and find unique justifications for why the law is or is not constitutional. The other side could make counter claims about the over extension of the law and how these negatively effect rights and violate the constitution. Ultimately, I think this sides ground is slightly limited and that the teams who are going to win on the affirmative are going to be able to tell a persuasive narrative about why the problems that justified these special conditions in the south are no longer relevant today. Here, I think arguments that agree that the problems still exist but that they are not of the same magnitude as in the past will be effective. When the ruling was made, these issues were much worse, and while there are some problems today they are not on par with what they use to be. This could invalidate the constitutional bases of the negative position. For all teams, I offer some random advice. Amicus briefs submitted to the Supreme Court are going to be some of the best evidence you can find. Secondly, it is important to understand the underpinnings of the decision both current and past. Find out why it was constitutional then and why it is unconstitutional now, this will enable you to link or delink weird arguments or specific disadvantages. !"#$% '()*+,$, -+ ./)(0 1$(("00 23-/4)/+ 5678
!"#$%&'( *+&,-. 55 About Grant Sinnott
Grant Sinnott was a Public Forum debater for Lake Highland Prep in Florida and graduated in May 2013. He was the Champion of the 2013 NFL National Tournament, the Sunvitational, Sunvitational Round Robin, the Florida State Tournament. Additionally, he was a finalist at the Tournament of Champions, the Glenbrooks, and Emory. Throughout his career, he amassed 10 TOC bids among other achievements. Grant currently attends the University of Florida in Gainesville, FL. General Information Champion Briefs February 2013 Public Forum Brief !"#"$%& (#)*$+%,-*# ."/$0%$1 2345
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Resolved: The Supreme Court rightly decided that Section 4 of the Voting Rights Act violated the Constitution.
Foreword: We, at Champion Briefs, feel that having deep knowledge about a topic is just as valuable as formulating the right arguments. Having general background knowledge about the topic area helps debaters form more coherent arguments from their breadth of knowledge. As such, we have compiled general information on the key concepts and general areas that we feel will best suit you for in- and out- of-round use. Any strong strategy or argument must be built from a strong foundation of information; we hope that you will utilize this section to help build that foundation. !"#"$%& (#)*$+%,-*# ."/$0%$1 2345
SEC. 4. (a) To assure that the right of citizens of the United States to vote is not denied or abridged on account of race or color, no citizen shall be denied the right to vote in any Federal, State, or local election because of his failure to comply with any test or device in any State with respect to which the determinations have been made under subsection (b) or in any political subdivision with respect to which such determinations have been made as a separate unit, unless the United States District Court for the District of Columbia in an action for a declaratory judgment brought by such State or subdivision against the United States has determined that no such test or device has been used during the five years preceding the filing of the action for the purpose or with the effect of denying or abridging the right to vote on account of race or color: Provided, That no such declaratory judgment shall issue with respect to any plaintiff for a period of five years after the entry of a final judgment of any court of the United States, other than the denial of a declaratory judgment under this section, whether entered prior to or after the enactment of this Act, determining that denials or abridgments of the right to vote on account of race or color through the use of such tests or devices have occurred anywhere in the territory of such plaintiff. An action pursuant to this subsection shall be heard and determined by a court of three judges in accordance with the provisions of section 2284 of title 28 of the United States Code and any appeal shall lie to the Supreme Court. The court shall retain jurisdiction of any action pursuant to this subsection for five years after judgment and shall reopen the action upon motion of the Attorney General alleging that a test or device has been used for the purpose or with the effect of denying or abridging the right to vote on account of race or color. If the Attorney General determines that he has no reason to believe that any such test or device has been used during the five years preceding the filing of the action for the purpose or with the effect of denying or abridging the right to vote on account of race or color, he shall consent to the entry of such judgment. (b) The provisions of subsection (a) shall apply in any State or in any political subdivision of a state which (1) the Attorney General determines maintained on November 1, 1964, any test or device, and with respect to which (2) the Director of the Census determines that less than 50 percentum of the persons of voting age residing therein were registered on November 1, 1964, or that less than 50 percentum of such persons voted in the presidential election of November 1964. !"#"$%& (#)*$+%,-*# ."/$0%$1 2345
!"#$%&'( *+&,-. 26 A determination or certification of the Attorney General or of the Director of the Census under this section or under section 6 or section 13 shall not be reviewable in any court and shall be effective upon publication in the Federal Register. (c) The phrase "test or device" shall mean any requirement that a person as a prerequisite for voting or registration for voting (1) demonstrate the ability to read, write, understand, or interpret any matter, (2) demonstrate any educational achievement or his knowledge of any particular subject, (3) possess good moral character, or (4) prove his qualifications by the voucher of registered voters or members of any other class. (d) For purposes of this section no State or political subdivision shall be determined to have engaged in the use of tests or devices for the purpose or with the effect of denying or abridging the right to vote on account of race or color if (1) incidents of such use have been few in number and have been promptly and effectively corrected by State or local action, (2) the continuing effect of such incidents has been eliminated, and (3) there is no reasonable probability of their recurrence in the future. (e) (1) Congress hereby declares that to secure the rights under the fourteenth amendment of persons educated in American-flag schools in which the predominant classroom language was other than English, it is necessary to prohibit the States from conditioning the right to vote of such persons on ability to read, write, understand, or interpret any matter in the English language. (2) No person who demonstrates that he has successfully completed the sixth primary grade in a public school in, or a private school accredited by, any State or territory, the District of Columbia, or the Commonwealth of Puerto Rico in which the predominant classroom language was other than English, shall be denied the right to vote in any Federal, State, or local election because of his inability to read, write, understand, or interpret any matter in the English language, except that, in States in which State law provides that a different level of education is presumptive of literacy, he shall demonstrate that he has successfully completed an equivalent level of education in a public school in, or a private school accredited by, any State or territory, the District of Columbia, or the Commonwealth of Puerto Rico in which the predominant classroom language was other than English (Transcript of Voting Rights Act (1965)).
Other Relevant Sections of Voting Rights Act
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!"#$%&'( *+&,-. 26 SEC. 3. (a) Whenever the Attorney General institutes a proceeding under any statute to enforce the guarantees of the fifteenth amendment in any State or political subdivision the court shall authorize the appointment of Federal examiners by the United States Civil Service Commission in accordance with section 6 to serve for such period of time and for such political subdivisions as the court shall determine is appropriate to enforce the guarantees of the fifteenth amendment (1) as part of any interlocutory order if the court determines that the appointment of such examiners is necessary to enforce such guarantees or (2) as part of any final judgment if the court finds that violations of the fifteenth amendment justifying equitable relief have occurred in such State or subdivision: Provided, That the court need not authorize the appointment of examiners if any incidents of denial or abridgement of the right to vote on account of race or color (1) have been few in number and have been promptly and effectively corrected by State or local action, (2) the continuing effect of such incidents has been eliminated, and (3) there is no reasonable probability of their recurrence in the future. (b) If in a proceeding instituted by the Attorney General under any statute to enforce the guarantees of the fifteenth amendment in any State or political subdivision the court finds that a test or device has been used for the purpose or with the effect of denying or abridging the right of any citizen of the United States to vote on account of race or color, it shall suspend the use of tests and devices in such State or political subdivisions as the court shall determine is appropriate and for such period as it deems necessary. (c) If in any proceeding instituted by the Attorney General under any statute to enforce the guarantees of the fifteenth amendment in any State or political subdivision the court finds that violations of the fifteenth amendment justifying equitable relief have occurred within the territory of such State or political subdivision, the court, in addition to such relief as it may grant, shall retain jurisdiction for such period as it may deem appropriate and during such period no voting qualification or prerequisite to voting, or standard, practice, or procedure with respect to voting different from that in force or effect at the time the proceeding was commenced shall be enforced unless and until the court finds that such qualification, prerequisite, standard, practice, or procedure does not have the purpose and will not have the effect of denying or abridging the right to vote on account of race or color: Provided, That such qualification, prerequisite, standard, practice, or procedure may be enforced if the qualification, prerequisite, standard, practice, or procedure has been submitted by the chief legal officer or other appropriate official !"#"$%& (#)*$+%,-*# ."/$0%$1 2345
!"#$%&'( *+&,-. 26 of such State or subdivision to the Attorney General and the Attorney General has not interposed an objection within sixty days after such submission, except that neither the court's finding nor the Attorney General's failure to object shall bar a subsequent action to enjoin enforcement of such qualification, prerequisite, standard, practice, or procedure (Transcript of Voting Rights Act (1965)).
SEC. 5. Whenever a State or political subdivision with respect to which the prohibitions set forth in section 4(a) are in effect shall enact or seek to administer any voting qualification or prerequisite to voting, or standard, practice, or procedure with respect to voting different from that in force or effect on November 1, 1964, such State or subdivision may institute an action in the United States District Court for the District of Columbia for a declaratory judgment that such qualification, prerequisite, standard, practice, or procedure does not have the purpose and will not have the effect of denying or abridging the right to vote on account of race or color, and unless and until the court enters such judgment no person shall be denied the right to vote for failure to comply with such qualification, prerequisite, standard, practice, or procedure: Provided, That such qualification, prerequisite, standard, practice, or procedure may be enforced without such proceeding if the qualification, prerequisite, standard, practice, or procedure has been submitted by the chief legal officer or other appropriate official of such State or subdivision to the Attorney General and the Attorney General has not interposed an objection within sixty days after such submission, except that neither the Attorney General's failure to object nor a declaratory judgment entered under this section shall bar a subsequent action to enjoin enforcement of such qualification, prerequisite, standard, practice, or procedure. Any action under this section shall be heard and determined by a court of three judges in accordance with the provisions of section 2284 of title 28 of the United States Code and any appeal shall lie to the Supreme Court. SEC. 6. Whenever (a) a court has authorized the appointment of examiners pursuant to the provisions of section 3(a), or (b) unless a declaratory judgment has been rendered under section 4(a), the Attorney General certifies with respect to any political subdivision named in, or included within the scope of, determinations made under section 4(b) that (1) he has received complaints in writing from twenty or more residents of such political subdivision alleging that they have been denied the right to vote under color of law on account of race or color, and that !"#"$%& (#)*$+%,-*# ."/$0%$1 2345
!"#$%&'( *+&,-. 26 he believes such complaints to be meritorious, or (2) that, in his judgment (considering, among other factors, whether the ratio of nonwhite persons to white persons registered to vote within such subdivision appears to him to be reasonably attributable to violations of the fifteenth amendment or whether substantial evidence exists that bona fide efforts are being made within such subdivision to comply with the fifteenth amendment), the appointment of examiners is otherwise necessary to enforce the guarantees of the fifteenth amendment, the Civil Service Commission shall appoint as many examiners for such subdivision as it may deem appropriate to prepare and maintain lists of persons eligible to vote in Federal, State, and local elections. Such examiners, hearing officers provided for in section 9(a), and other persons deemed necessary by the Commission to carry out the provisions and purposes of this Act shall be appointed, compensated, and separated without regard to the provisions of any statute administered by the Civil Service Commission, and service under this Act shall not be considered employment for the purposes of any statute administered by the Civil Service Commission, except the provisions of section 9 of the Act of August 2, 1939, as amended (5 U.S.C. 118i), prohibiting partisan political activity: Provided, That the Commission is authorized, after consulting the head of the appropriate department or agency, to designate suitable persons in the official service of the United States, with their consent, to serve in these positions. Examiners and hearing officers shall have the power to administer oaths (Transcript of Voting Rights Act (1965)).
Cause of Suit Against the Attorney General Shelby County is located in Alabama, a covered jurisdiction. It has not sought bailout, as the Attorney General has recently objected to voting changes proposed from within the county. See App. 87a92a. Instead, in 2010, the county sued the Attorney General in Federal District Court in Washington, D. C., seeking a declaratory judgment that sections 4(b) and 5 of the Voting Rights Act are facially unconstitutional, as well as a permanent injunction against their enforcement. The District Court ruled against the county and upheld the Act. 811 F. Supp. 2d 424, 508 (2011). The court found that the evidence before Congress in 2006 was sufficient to justify reauthorizing 5 and continuing the 4(b) coverage formula (SHELBY COUNTY, ALABAMA v. HOLDER, ATTORNEY GENERAL, ET AL. Opinion of the Court 7). 70&-#8 *) ,9" :*0$,
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!"#$%&'( *+&,-. 63 Held: Section 4 of the Voting Rights Act is unconstitutional; its formula can no longer be used as a basis for subjecting jurisdictions to pre- clearance. Pp. 925. (a) In Northwest Austin, this Court noted that the Voting Rights Act imposes current burdens and must be justified by current needs and concluded that a departure from the fundamental principle of equal sovereignty requires a showing that a statutes disparate geo- graphic coverage is sufficiently related to the problem that it targets. 557 U. S., at 203. These basic principles guide review of the question presented here. Pp. 917. (1) State legislation may not contravene federal law. States retain broad autonomy, however, in structuring their governments and pursuing legislative objectives. Indeed, the Tenth Amendment re- serves to the States all powers not specifically granted to the Federal Government, including the power to regulate elections. Gregory v. Ashcroft, 501 U. S. 452, 461462. There is also a fundamental principle of equal sovereignty among the States, which is highly pertinent in assessing disparate treatment of States. Northwest Austin, supra, at 203. The Voting Rights Act sharply departs from these basic principles. It requires States to beseech the Federal Government for permission to implement laws that they would otherwise have the right to enact and execute on their own. And despite the tradition of equal sovereignty, the Act applies to only nine States (and additional counties). That is why, in 1966, this Court described the Act as stringent and potent, Katzenbach, 383 U. S., at 308, 315, 337. The Court nonetheless upheld the Act, concluding that such an uncommon exercise of congressional power could be justified by exceptional conditions. Id., at 334. Pp. 912. (2) In 1966, these departures were justified by the blight of racial discrimination in voting that had infected the electoral process in parts of our country for nearly a century, Katzenbach, 383 U. S., at 308. At the time, the coverage formulathe means of linking the exercise of the unprecedented authority with the problem that war- ranted itmade sense. The Act was limited to areas where Congress found evidence of actual voting discrimination, and the covered jurisdictions shared two characteristics: the use of tests and devices for voter registration, and a voting rate in the 1964 presidential election at least 12 points below the national average. Id., at 330. The Court explained that [t]ests and devices are relevant to voting dis- crimination because of their long history as a tool for perpetrating the evil; a low voting rate is pertinent for the obvious reason that widespread disenfranchisement must inevitably affect the !"#"$%& (#)*$+%,-*# ."/$0%$1 2345
!"#$%&'( *+&,-. 64 number of actual voters. Ibid. The Court therefore concluded that the cover- age formula [was] rational in both practice and theory. Ibid. Pp. 1213. (3) Nearly 50 years later, things have changed dramatically. Largely because of the Voting Rights Act, [v]oter turnout and registration rates in covered jurisdictions now approach parity. Blatantly discriminatory evasions of federal decrees are rare. And minority candidates hold office at unprecedented levels. Northwest Austin, supra, at 202. The tests and devices that blocked ballot access have been forbidden nationwide for over 40 years. Yet the Act has not eased 5s restrictions or narrowed the scope of 4s coverage formula along the way. Instead those extraordinary and unprecedented fea- tures have been reauthorized as if nothing has changed, and they have grown even stronger. Because 5 applies only to those jurisdictions singled out by 4, the Court turns to consider that provision. Pp. 1317. (b) Section 4s formula is unconstitutional in light of current conditions. Pp. 1725. (1) In 1966, the coverage formula was rational in both practice and theory. Katzenbach, supra, at 330. It looked to cause (discriminatory tests) and effect (low voter registration and turnout), and tailored the remedy (preclearance) to those jurisdictions exhibiting both. By 2009, however, the coverage formula raise[d] serious constitutional questions. Northwest Austin, supra, at 204. Coverage today is based on decades-old data and eradicated practices. The formula captures States by reference to literacy tests and low voter registration and turnout in the 1960s and early 1970s. But such tests have been banned for over 40 years. And voter registration and turnout numbers in covered States have risen dramatically. In 1965, the States could be divided into 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. Pp. 1718. (2) The Government attempts to defend the formula on grounds that it is reverse- engineeredCongress identified the jurisdictions to be covered and then came up with criteria to describe them. Katzenbach did not sanction such an approach, reasoning instead that the coverage formula was rational because the formula . . . was relevant to the problem. 383 U. S., at 329, 330. The Government has a fallback argumentbecause the formula was relevant in 1965, its continued use is permissible so long as any discrimination remains in the States identified in 1965. But this does not look to current political conditions, Northwest Austin, !"#"$%& (#)*$+%,-*# ."/$0%$1 2345
!"#$%&'( *+&,-. 62 supra, at 203, instead relying on a comparison between the States in 1965. But history did not end in 1965. In assessing the current need[ ] for a preclearance system treating States differently from one another today, history since 1965 cannot be ignored. The Fifteenth Amendment is not designed to punish for the past; its purpose is to ensure a better future. To serve that purpose, Congressif it is to divide the Statesmust identify those jurisdictions to be singled out on a basis that makes sense in light of current conditions. Pp. 1821. (3) Respondents also rely heavily on data from the record com- piled by Congress before reauthorizing the Act. Regardless of how one looks at that record, no one can fairly say that it shows anything approaching the pervasive, flagrant, widespread, and rampant discrimination that clearly distinguished the covered jurisdictions from the rest of the Nation in 1965. Katzenbach, supra, at 308, 315, 331. But a more fundamental problem remains: Congress did not use that record to fashion a coverage formula grounded in current conditions. It instead re-enacted a formula based on 40-year-old facts having no logical relation to the present day. Pp. 2122. 679 F. 3d 848, reversed (SHELBY COUNTY, ALABAMA v. HOLDER, ATTORNEY GENERAL, ET AL. Syllabus 2-4).
Excerpts from Chief Justice Roberts Majority Opinion
Regarding Section 5: The Court of Appeals for the D. C. Circuit affirmed. In assessing 5, the D. C. Circuit considered six primary categories of evidence: Attorney General objections to voting changes, Attorney General requests for more in- formation regarding voting changes, successful 2 suits in covered jurisdictions, the dispatching of federal observers to monitor elections in covered jurisdictions, 5 preclearance suits involving covered jurisdictions, and the deter- rent effect of 5. See 679 F. 3d 848, 862863 (2012). After extensive analysis of the record, the court accepted Congresss conclusion that 2 litigation remained inadequate in the covered jurisdictions to protect the rights of minority voters, and that 5 was therefore still necessary. Id., at 873 (SHELBY COUNTY, ALABAMA v. HOLDER, ATTORNEY GENERAL, ET AL. Opinion of the Court 7-8).
!"#$%&'( *+&,-. 66 Framework for Decision: In Northwest Austin, we stated that the Act imposes current burdens and must be justified by current needs. 557 U. S., at 203. And we concluded that a departure from the fundamental principle of equal sovereignty re- quires a showing that a statutes disparate geographic coverage is sufficiently related to the problem that it targets. Ibid. These basic principles guide our review of the question before us (SHELBY COUNTY, ALABAMA v. HOLDER, ATTORNEY GENERAL, ET AL. Opinion of the Court 9).
Regarding Supremacy Clause: State legislation may not contravene federal law. The Federal Government does not, however, have a general right to review and veto state enactments before they go into effect. A proposal to grant such authority to negative state laws was considered at the Constitutional Convention, but rejected in favor of allowing state laws to take effect, subject to later challenge under the Supremacy Clause (SHELBY COUNTY, ALABAMA v. HOLDER, ATTORNEY GENERAL, ET AL. Opinion of the Court 9).
Regarding Equal State Sovereignty: Not only do States retain sovereignty under the Constitution, there is also a fundamental principle of equal sovereignty among the States. Northwest Austin, supra, at 203 (citing United States v. Louisiana, 363 U. S. 1, 16 (1960); Lessee of Pollard v. Hagan, 3 How. 212, 223 (1845); and Texas v. White, 7 Wall. 700, 725726 (1869); emphasis added). Over a hundred years ago, this Court explained that our Nation was and is a union of States, equal in power, dignity and authority. Coyle v. Smith, 221 U. S. 559, 567 (1911). Indeed, the constitutional equality of the States is essential to the harmonious operation of the scheme upon which the Republic was organized. Id., at 580. Coyle concerned the admission of new States, and Katzenbach rejected the notion that the principle operated as a bar on differential treatment outside that context. 383 U. S., at 328329. At the same time, as we made clear in Northwest Austin, the fundamental principle of equal sovereignty remains highly pertinent in assessing subsequent disparate treatment of States. 557 U. S., at 203. The Voting Rights Act sharply departs from these basic principles. It suspends all changes to state election law however innocuousuntil they have been precleared by federal authorities in Washington, D. C. Id., at 202. States must beseech the Federal Government for permission to implement laws that they would otherwise have the right to enact and execute on their own, subject of course to any injunction in a 2 action. The Attorney General has 60 days to !"#"$%& (#)*$+%,-*# ."/$0%$1 2345
!"#$%&'( *+&,-. 65 object to a preclearance request, longer if he requests more information. See 28 CFR 51.9, 51.37. If a State seeks preclearance from a three- judge court, the process can take years. And despite the tradition of equal sovereignty, the Act applies to only nine States (and several additional counties). While one State waits months or years and expends funds to implement a validly enacted law, its neighbor can typically put the same law into effect immediately, through the normal legislative process. Even if a noncovered jurisdiction is sued, there are important differences between those proceedings and preclearance proceedings; the preclearance proceeding not only switches the burden of proof to the supplicant jurisdiction, but also applies substantive standards quite different from those governing the rest of the nation. 679 F. 3d, at 884 (Williams, J., dissenting) (case below) (SHELBY COUNTY, ALABAMA v. HOLDER, ATTORNEY GENERAL, ET AL. Opinion of the Court 10-11).
Regarding Original Ruling of Section 4: Shortly before enactment of the Voting Rights Act, only 19.4 percent of African-Americans of voting age were registered to vote in Alabama, only 31.8 percent in Louisiana, and only 6.4 percent in Mississippi. Id., at 313. Those figures were roughly 50 percentage points or more below the figures for whites. Ibid. In short, we concluded that [u]nder the compulsion of these unique circumstances, Congress responded in a permissibly decisive manner. Id., at 334, 335. We also noted then and have emphasized since that this extra- ordinary legislation was intended to be temporary, set to expire after five years. Id., at 333; Northwest Austin, supra, at 199. At the time, the coverage formulathe means of linking the exercise of the unprecedented authority with the problem that warranted itmade sense. We found that Congress chose to limit its attention to the geographic areas where immediate action seemed necessary. Katzenbach, 383 U. S., at 328. The areas where Congress found evidence of actual voting discrimination shared two characteristics: the use of tests and devices for voter registration, and a voting rate in the 1964 presidential election at least 12 points below the national average. Id., at 330. We explained that [t]ests and devices are relevant to voting discrimination because of their long history as a tool for perpetrating the evil; a low voting rate is pertinent for the obvious reason that widespread disenfranchisement must inevitably affect the number of actual voters. Ibid. We therefore concluded that the coverage formula [was] rational in both practice and theory. Ibid. It accurately reflected those jurisdictions uniquely !"#"$%& (#)*$+%,-*# ."/$0%$1 2345
!"#$%&'( *+&,-. 67 characterized by voting discrimination on a pervasive scale, linking coverage to the devices used to effectuate discrimination and to the resulting disenfranchisement. Id., at 308. The formula ensured that the stringent remedies [were] aimed at areas where voting discrimination ha[d] been most flagrant. Id., at 315 (SHELBY COUNTY, ALABAMA v. HOLDER, ATTORNEY GENERAL, ET AL. Opinion of the Court 12-13).
Regarding the Necessity of Section 4: Nearly 50 years later, things have changed dramatically. Shelby County contends that the preclearance requirement, even without regard to its disparate coverage, is now unconstitutional. Its arguments have a good deal of force. In the covered jurisdictions, [v]oter turnout and registration rates now approach parity. Blatantly discriminatory evasions of federal decrees are rare. And minority candidates hold office at unprecedented levels. Northwest Austin, 557 U. S., at 202. The tests and devices that blocked access to the ballot have been forbidden nation- wide for over 40 years. See 6, 84 Stat. 315; 102, 89 Stat. 400. Those conclusions are not ours alone. Congress said the same when it reauthorized the Act in 2006, writing that [s]ignificant progress has been made in eliminating first generation barriers experienced by minority voters, including increased numbers of registered minority voters, minority voter turnout, and minority representation in Congress, State legislatures, and local elected offices. 2(b)(1), 120 Stat. 577. The House Report elaborated that the number of African-Americans who are registered and who turn out to cast ballots has increased significantly over the last 40 years, particularly since 1982, and noted that [i]n some circumstances, minorities register to vote and cast ballots at levels that surpass those of white voters. H. R. Rep. No. 109478, p. 12 (2006). That Report also explained that there have been significant increases in the number of African-Americans serving in elected offices; more specifically, there has been approximately a 1,000 percent increase since 1965 in the number of African-American elected officials in the six States originally covered by the Voting Rights Act. Id., at 18 (SHELBY COUNTY, ALABAMA v. HOLDER, ATTORNEY GENERAL, ET AL. Opinion of the Court 13-14).
Regarding the Formula: By 2009, however, we concluded that the coverage formula raise[d] serious constitutional questions. Northwest Austin, 557 U. S., at 204. As we explained, !"#"$%& (#)*$+%,-*# ."/$0%$1 2345
!"#$%&'( *+&,-. 67 a statutes current burdens must be justified by current needs, and any disparate geographic coverage must be sufficiently related to the problem that it targets. Id., at 203. The coverage formula met that test in 1965, but no longer does so. Coverage today is based on decades-old data and eradicated practices. The formula captures States by reference to literacy tests and low voter registration and turnout in the 1960s and early 1970s. But such tests have been banned nationwide for over 40 years. 6, 84 Stat. 315; 102, 89 Stat. 400. And voter registration and turnout numbers in the covered States have risen dramatically in the years since. H. R. Rep. No. 109478, at 12. Racial disparity in those numbers was compelling evidence justifying the preclearance remedy and the coverage formula. See, e.g., Katzenbach, supra, at 313, 329330. There is no longer such a disparity. 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 (SHELBY COUNTY, ALABAMA v. HOLDER, ATTORNEY GENERAL, ET AL. Opinion of the Court 17-18).
Final Conclusions of the Court: Striking down an Act of Congress is the gravest and most delicate duty that this Court is called on to perform. Blodgett v. Holden, 275 U. S. 142, 148 (1927) (Holmes, J., concurring). We do not do so lightly. That is why, in 2009, we took care to avoid ruling on the constitutionality of the Voting Rights Act when asked to do so, and instead resolved the case then before us on statutory grounds. But in issuing that decision, we expressed our broader concerns about the constitutionality of the Act. Congress could have updated the coverage formula at that time, but did not do so. Its failure to act leaves us today with no choice but to declare 4(b) unconstitutional. The formula in that section can no longer be used as a basis for subjecting jurisdictions to preclearance. Our decision in no way affects the permanent, nation- wide ban on racial discrimination in voting found in 2. We issue no holding on 5 itself, only on the coverage formula. Congress may draft another formula based on current conditions. Such a formula is an initial prerequisite to a determination that exceptional conditions still exist justifying such an extraordinary departure from the traditional course of relations between the States and the Federal Government. Presley, 502 U. S., at 500501. Our country has changed, and while any racial !"#"$%& (#)*$+%,-*# ."/$0%$1 2345
!"#$%&'( *+&,-. 67 discrimination in voting is too much, Congress must ensure that the legislation it passes to remedy that problem speaks to current conditions. The judgment of the Court of Appeals is reversed (SHELBY COUNTY, ALABAMA v. HOLDER, ATTORNEY GENERAL, ET AL. Opinion of the Court 24).
Excerpts from Justice Ginsbergs Dissenting Opinion
Regarding Reauthorization Meeting the Rational-Basis Test: For three reasons, legislation reauthorizing an existing statute is especially likely to satisfy the minimal requirements of the rational-basis test. First, when reauthorization is at issue, Congress has already assembled a legislative record justifying the initial legislation. Congress is en titled to consider that preexisting record as well as the record before it at the time of the vote on reauthorization. This is especially true where, as here, the Court has repeatedly affirmed the statutes constitutionality and Congress has adhered to the very model the Court has upheld. See id., at 174 (The appellants are asking us to do nothing less than overrule our decision in South Carolina v. Katzenbach . . . , in which we upheld the constitutionality of the Act.); Lopez v. Monterey County, 525 U. S. 266, 283 (1999) (similar). Second, the very fact that reauthorization is necessary arises because Congress has built a temporal limitation into the Act. It has pledged to review, after a span of years (first 15, then 25) and in light of contemporary evidence, the continued need for the VRA. Cf. Grutter v. Bollinger, 539 U. S. 306, 343 (2003) (anticipating, but not guaranteeing, that, in 25 years, the use of racial preferences [in higher education] will no longer be necessary). Third, a reviewing court should expect the record sup porting reauthorization to be less stark than the record originally made. Demand for a record of violations equivalent to the one earlier made would expose Congress to a catch-22. If the statute was working, there would be less evidence of discrimination, so opponents might argue that Congress should not be allowed to renew the statute. In contrast, if the statute was not working, there would be plenty of evidence of discrimination, but scant reason to renew a failed regulatory regime. See Persily 193194. This is not to suggest that congressional power in this area is limitless. It is this Courts responsibility to ensure that Congress has used appropriate means. The question meet for judicial review is whether the chosen means are adapted to carry out the objects the amendments have !"#"$%& (#)*$+%,-*# ."/$0%$1 2345
!"#$%&'( *+&,-. 67 in view. Ex parte Virginia, 100 U. S. 339, 346 (1880). The Courts role, then, is not to substitute its judgment for that of Congress, but to determine whether the legislative record sufficed to show that Congress could rationally have determined that [its chosen] provisions were appro- priate methods. City of Rome, 446 U. S., at 176177. In summary, the Constitution vests broad power in Congress to protect the right to vote, and in particular to combat racial discrimination in voting. This Court has repeatedly reaffirmed Congress prerogative to use any rational means in exercise of its power in this area. And both precedent and logic dictate that the rational-means test should be easier to satisfy, and the burden on the statutes challenger should be higher, when what is at issue is the reauthorization of a remedy that the Court has previously affirmed, and that Congress found, from con temporary evidence, to be working to advance the legislatures legitimate objective (SHELBY COUNTY, ALABAMA v. HOLDER, ATTORNEY GENERAL, ET AL. GINSBURG, J., dissenting 11-12).
Regarding the Courts Ruling on the Coverage Formula: The Court holds 4(b) invalid on the ground that it is irrational to base coverage on the use of voting tests 40 years ago, when such tests have been illegal since that time. Ante, at 23. But the Court disregards what Congress set about to do in enacting the VRA. That extraordinary legislation scarcely stopped at the particular tests and devices that happened to exist in 1965. The grand aim of the Act is to secure to all in our polity equal citizen ship stature, a voice in our democracy undiluted by race. As the record for the 2006 reauthorization makes abundantly clear, second-generation barriers to minority voting rights have emerged in the covered jurisdictions as at tempted substitutes for the first-generation barriers that originally triggered preclearance in those jurisdictions. See supra, at 56, 8, 1517. The sad irony of todays decision lies in its utter failure to grasp why the VRA has proven effective. The Court appears to believe that the VRAs success in eliminating the specific devices extant in 1965 means that preclearance is no longer needed. Ante, at 2122, 2324. With that belief, and the argument derived from it, history repeats itself. The same assumptionthat the problem could be solved when particular methods of voting discrimination are identified and eliminatedwas indulged and proved wrong repeatedly prior to the VRAs enactment. Unlike prior statutes, which singled out particular tests or devices, the VRA is grounded in Congress recognition of the variety and persistence of measures designed to impair minority voting !"#"$%& (#)*$+%,-*# ."/$0%$1 2345
!"#$%&'( *+&,-. 67 rights. Katzenbach, 383 U. S., at 311; supra, at 2. In truth, the evolution of voting discrimination into more subtle second-generation barriers is powerful evidence that a remedy as effective as preclearance remains vital to protect minority voting rights and prevent backsliding. Beyond question, the VRA is no ordinary legislation. It is extraordinary because Congress embarked on a mission long delayed and of extraordinary importance: to realize the purpose and promise of the Fifteenth Amendment. For a half century, a concerted effort has been made to end racial discrimination in voting. Thanks to the Voting Rights Act, progress once the subject of a dream has been achieved and continues to be made. The record supporting the 2006 reauthorization of the VRA is also extraordinary. It was described by the Chairman of the House Judiciary Committee as one of the most extensive considerations of any piece of legislation that the United States Congress has dealt with in the 2712 years he had served in the House. 152 Cong. Rec. H5143 (July 13, 2006) (statement of Rep. Sensenbrenner). After exhaustive evidence-gathering and deliberative process, Congress reauthorized the VRA, including the coverage provision, with overwhelming bipartisan support. It was the judgment of Congress that 40 years has not been a sufficient amount of time to eliminate the vestiges of discrimination following nearly 100 years of disregard for the dictates of the 15th amendment and to ensure that the right of all citizens to vote is protected as guaranteed by the Constitution. 2006 Reauthorization 2(b)(7), 120 Stat. 577. That determination of the body empowered to enforce the Civil War Amendments by appropriate legislation merits this Courts utmost respect. In my judgment, the Court errs egregiously by overriding Congress decision (SHELBY COUNTY, ALABAMA v. HOLDER, ATTORNEY GENERAL, ET AL. GINSBURG, J., dissenting 35-37).
Summaries for Cases used in Shelby Case
South Carolina v. Katzenbach (S.Ct. 1966) Facts: The Voting Rights Act of 1965 contained provisions attempting to prevent racial discrimination in the voting process by offering remedies against such unjust practices as requiring literacy or good moral character in order to vote. !"#"$%& (#)*$+%,-*# ."/$0%$1 2345
!"#$%&'( *+&,-. 53 Issue: May Congress pass laws to carry out the provisions of constitutional amendments or to exercise congressional powers? Rule: (Warren, C.J.) Congress may constitutionally enact statutes that validly enforce a constitutional amendment or that are necessary and proper for carrying out enumerated or implied powers. Dissent: (Black, J.) It is doubtful that this suit presents a justiciable case or controversy. In addition, at least one of the Acts provisions unjustly blurs the constitutional distinction between state and federal power by requiring federal approval of certain states laws and constitutional amendments (Case Overviews).
Northwest Austin Municipal Util. Dist. No. One v. Holder Facts of the Case: Northwest Austin Municipal Utility District Number One ("Northwest") sought a declaratory judgment exempting it from Section 5 of the Voting Rights Act of 1965 and alternatively argued that Section 5 was unconstitutional. Section 5 prohibits "covered jurisdictions" states and political subdivisions with histories of racial discrimination in voting from changing their voting procedures without permission from either the Attorney General or a three-judge panel of the U.S. District Court for the District of Columbia. The district court held that Northwest was not eligible for exemption from Section 5 reasoning that it did not qualify as a "political subdivision" as defined in the Voting Rights Act. Moreover, the court rejected Northwest's argument that Congress' 2006 extension of Section 5 for another 25 years made the provision unconstitutional. Rather, the court held that given the documentation of contemporary racial discrimination in "covered jurisdictions", Congress acted rationally in extending the provision, rendering Section 5 constitutional.
Questions 1) Does Section 4(a) of the Voting Rights Act ("VRA") permit any "political subunit" of a "covered state" from seeking exemption from Section 5 of the VRA when it permits "political subdivisions" within "covered states" from seeking such exemptions? 2) Was the 2006 extension of Section 5 of the Voting Rights Act a valid exercise of congressional power when the Congressional Record indicated no persistent patter of "covered states" attempting to evade the enforcement of the VRA? (NORTHWEST AUSTIN !"#"$%& (#)*$+%,-*# ."/$0%$1 2345
!"#$%&'( *+&,-. 54 MUNICIPAL v. HOLDER) Conclusion: Decision: 9 votes for Northwest Austin Municipal, 0 vote(s) against Legal provision: Voting Rights Act Yes. Not answered. The Supreme Court held that the VRA permits all political subdivisions, including the district, to seek to bailout from the preclearance requirements of the VRA. With Chief Justice John G. Roberts writing for the majority and joined by Justices John Paul Stevens, Antonin G. Scalia, Anthony M. Kennedy, David H. Souter, Ruth Bader Ginsburg, Stephen G. Breyer, and Samuel A. Alito, and in part by Justice Clarence Thomas, the Court reasoned that the language of the VRA did not constrict the availability of a bailout for political subunits like Northwest Municipal. Moreover, the Court reasoned that considering that only 17 of 12,000 jurisdictions covered by the VRA had bailed out suggested that Congress had never intended for it to be so difficult to bailout. Justice Thomas wrote separately, concurring in the judgment in part and dissenting in part. He criticized the Court for not addressing the constitutionality of Section 5 of the VRA. He argued that he thought it did in fact exceed Congress' power to enforce the 15th Amendment, rendering it unconstitutional( NORTHWEST AUSTIN MUNICIPAL v. HOLDER).
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!"#$%&'( *+&,-. 52 Works Cited
"Case Overviews - South Carolina v. Katzenbach (S.Ct. 1966)." Casebriefs. Web. <http://www.casebriefs.com/blog/law/constitutional-law/outline-constitutional-law- law/separation-of-powers-outline-constitutional-law-law/case-overviews-23/>. NORTHWEST AUSTIN MUNICIPAL v. HOLDER. The Oyez Project at IIT Chicago-Kent College of Law. 07 January 2014. <http://www.oyez.org/cases/2000- 2009/2008/2008_08_322>. SHELBY COUNTY, ALABAMA v. HOLDER, ATTORNEY GENERAL, ET AL. GINSBURG, J., dissenting. Supreme Court of the United States. 25 June 2013. Web. <http://www.supremecourt.gov/opinions/12pdf/12-96_6k47.pdf>. SHELBY COUNTY, ALABAMA v. HOLDER, ATTORNEY GENERAL, ET AL. Opinion of the Court. Supreme Court of the United States. 25 June 2013. Web. <http://www.supremecourt.gov/opinions/12pdf/12-96_6k47.pdf>. SHELBY COUNTY, ALABAMA v. HOLDER, ATTORNEY GENERAL, ET AL. Syllabus. Supreme Court of the United States. 25 June 2013. Web. <http://www.supremecourt.gov/opinions/12pdf/12-96_6k47.pdf>. "Transcript of Voting Rights Act (1965)." Our Documents - United States Federal Government.The Avalon Project at Yale University, Web. <http://www.ourdocuments.gov/doc.php?flash=true>. Frameworks Champion Briefs February 2013 Public Forum Brief !"#$%&'"() !%+",#"- ./01
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2334"$#546%
!"#$%&'"(7 The pioactive buiuen of this uebate falls upon the negative to oveituin, oi uispiove, the Supieme Couit's iuling. This is because the uecision has alieauy been ienueieu anu thus theie is a gieatei buiuen of pioof to show that the uecision was ienueieu incoiiectly. If at the enu of the iounu, the negative team has not pioveu beyonu a ieasonable uoubt that Section 4 is unconstitutional, you shoulu vote affiimative anu uefault to the status quo iuling.
89%: 5' ,)%7 This fiamewoik woiks at the top of any affiimative case because it shows that the Negative team has a gieatei buiuen within the iounu. This also loweis the Affiimative buiuen in the iounu because it shows that if all aiguments in the iounu aie a wash then the juuge shoulu uefault to the Affiimative. We iecommenu that you use this fiamewoik in conjunction with aiguments that follow the Couit's ieasoning foi ueciuing unconstitutionality, so that youi case lies as close to the status quo as possible. 0se the inheient uouble negative within the iesolution, the fact that the Affiimative has to uefenu a negative iuling, to fuithei piove that the buiuen to oveituin the uecision is stiongei than to ieaffiim it.
;'& 5' 2:)&%"7 Fiist, aigue that the Affiimative always has the pioactive buiuen in Public Foium Bebate anu that the Negative has the sole buiuen of uispioving the Affiimative. Seconu, aigue that the buiuen of pioving something unconstitutional is gieatei than to piove it constitutional, so the pioactive buiuen lies with the Affiimative in the iounu. Thiiu, this fiamewoik ieally only comes into play in the case of a wash oi a close uebate, so ensuie that you can cast uoubt anu auequately iesponu to the Affiimative position. Fouith, if they uo not aigue that unconstitutionality of the section baseu on the couit's iuling, then foice them to uefenu that position because they aie meiely "ieaffiiming" the uecision, anu any othei aiguments about unconstitutionality woulu be non-topical. !"#$%&'"() !%+",#"- ./01
!"#$%&'( *+&,-. 12 !"#$%&'"(3 The Supieme Couit is the sole inteipietei of the Constitution anu thus it must seek to piotect the iights of all inuiviuuals within society, not just the majoiity of people. This means that the buiuen of pioof falls on the Negative to piove that this section is constitutional anu uoesn't haim the iights oi have the possibility of haiming citizen's iights guaianteeu unuei the Constitution because the possibility of infiinging upon iights oi clauses of the Constitution woulu be enough to ueem it unconstitutional.
45%6 7' 8)%3 This fiamewoik woiks with any Affiimative, but uo not use it in conjunction with the fiist fiamewoik in this section. It allows you to have a lowei buiuen to win the iounu baseu upon the iesponsibilities of the Supieme Couit. This fiamewoik woiks well with aiguments iegaiuing pieceuent anu the iole of the Supieme Couit within society combineu with aiguments about the Section haiming iights.
9'& 7' :6)&%"3 Fiist, the uecision calculus of the Supieme Couit is to meiely inteipiet the law in ielation to the woius of the Constitution. This means that theie is a gieatei buiuen of pioof to show that the section !"## infiinge upon constitutional iights. The Supieme Couit must look at the lettei of the law anu use a stiict inteipietation of the Constitution in oiuei to piove that something tiuly violates it. Seconu, this fiamewoik may apply to when the Supieme Couit is actually making the uecision oi if the topic was "Resolveu: the Supieme Couit shoulu ueem Section 4 of the voting Rights Act unconstitutional," but because the woiuing of the iesolution implies that the Affiimative has to "ieaffiim" the uecision not uefenu it to a minimal stanuaiu. This is because if they uo not "ieaffiim" the uecision in its entiiety then they have not fulfilleu the question of the iesolution. !"#$%&'"() !%+",#"- ./01
!"#$%&'( *+&,-. 12 !"#$%&'"(3 In oiuei foi the Affiimative to win the iounu anu ieaffiim the uecision of the Supieme Couit, they have the pioactive buiuen to piove that Section 4 is unconstitutional. This is because the Supieme Couit neeus stiong ieason anu eviuence in oiuei to iule something unconstitutional. Thus, if theie is no offense on eithei siue of the iounu, meaning that neithei team can piove the constitutionality of the section, then you shoulu vote negative because the Affiimative uiu not meet the high buiuen of pioof that befalls the Supieme Couit to ueem something unconstitutional.
45%6 7' ,)%3 This fiamewoik woiks at the top of any Negative case because it meiely uiminishes youi buiuen in the iounu anu establishes that the affiimative has a stiongei buiuen of pioof because the Supieme Couit neeus stiong eviuence, not potentialities of haim, to iule something unconstitutional. Noieovei, this helps any case because if at the enu of the iounu, theie is no affiimative ieason to vote foi eithei team then it foices the juuge to uefault to the negative.
8'& 7' 96)&%"3 Fiist, you shoulu make the aigument that because you aie ieaffiiming the valiuity of the Supieme Couit's uecision anu because you aien't a piofessional lawyei who is goou enough to speak in fiont of the Supieme Couit, that you shoulun't be helu to the same stanuaiu. Seconu, you shoulu aigue that Supieme Couit only neeus a ieasonable avenue to ueteimine unconstitutionality because they must look out anu piotect the iights of all inuiviuuals, not just the majoiity of inuiviuuals within oui society. Pro Arguments with Con Responses Champion Briefs February 2013 Public Forum Brief !"# %"&'()*+, -*. /0#12, 3)4"'-"5 6789
Argument: The Supreme Courts role is to establish the permissibility and constitutionality of laws. One of the methods by which they do this is through following prior court precedent.
Warrant: Throughout the Supreme Courts history, justices have repeatedly claimed that court precedent is the manner in which future court decisions are reached. The judiciary can only fulfill its role in a consistent manner if it refers to previous court decisions.
Cross, Frank B., and James F. Spriggs. "Citations in the US Supreme Court: An Empirical Study of Their Use and Significance." University of Illinois Law Review (2010): 489. < http://illinoislawreview.org/article/citations-in-the-us-supreme-court-an- empirical-study-of-their-use-and-significance/>.
Of all citations, those to prior opinions are the most common, demonstrating the Courts respect for stare decisis. The doctrine of stare decisis is said to reflect the fundamental values of the legal process. Alexander Hamilton declared that it was indispensable that [judges] should be bound down by strict rules and precedents in order to avoid an arbitrary discretion in the courts. The Court has declared that [a]dherence to precedent, is, in the usual cases, a cardinal and guiding principle of adjudication. In the plurality opinion declining to overrule Roe v. Wade, Justices OConnor, Kennedy and Souter declared that respect for precedent was the very concept of the rule of law.
Analysis: This evidence is key for establishing why stare decisis is an important element of the decision-making process for the Supreme Court. Teams would do well to use this evidence before trying to cite previous cases as the basis of Shelby County because many con teams will want to limit the debate simply to the realm of amendments, when in fact you should be examining the Constitutional role of the Supreme Court. Its far better to have established why !"# %"&'()*+, -*. /0#12, 3)4"'-"5 6789
!"#$%&'( *+&,-. :6 precedence is important to constitutionality, than try to make these arguments without having established why precedence is so critical.
Warrant: Laws are consistently rooted in the history of laws that have been passed that have similar background. The reason laws do this is so the Court can look back at how the Constitution has been interpreted in the past and then prevent themselves from straying too far from Court interpretations of the Constitution.
Fowler, James H., and Sangick Jeon. "The authority of Supreme Court precedent." Social Networks 30.1 (2008): 16-30. <http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1008032>.
Most judges and scholars would suggest that the law develops while clinging to history. History, in this context, is precedentthe decisions made by earlier courts in similar cases. Precedent plays a central role in the judiciary by providing information to judges and other decision makers about the relevance or weight of particular facts for a legal issue and by de!ning legal consequences or tests that pertain to those facts. Not all court opinions are equally positioned to serve as a precedent for a given dispute, and the norm of respecting stare decisis instructs judges to rely on the most legally relevant and authoritative cases applicable to a given legal question. In this sense, the legal relevance of a case (to which we refer synonymously as case importance or case centrality)the degree to which the information in a given case remains germane for deciding contemporary legal disputeslies at the heart of law and legal development.
Analysis: This evidence extends upon the first evidence, clearly explaining why judicial precedence is so critical to the Supreme Courts decision making process. Supreme Court justices look back at cases that deal with similar issues as theirs and then take their cues from those cases. This is critical for Pro teams to establish clearly as Supreme Court precedent can !"# %"&'()*+, -*. /0#12, 3)4"'-"5 6789
!"#$%&'( *+&,-. :; sometimes be a nebulous issue that teams struggle to clearly define. Pro needs to be the one to clearly establish the importance.
Warrant: Northwest Austin distinctly upheld the notion that the Voting Rights Act preclearance formula must be justified by current needs and current instances of discrimination. It was a previous Supreme Court and provided much of the foundation for the justification of Shelby County.
Northwest Austin v. Holder. 557 U.S. 193. Supreme Court of the United States. 2009. Legal Information Institute. <http://www.law.cornell.edu/supct/html/08- 322.ZS.html>. 3 Jan. 2014.
The historic accomplishments of the Voting Rights Act are undeniable, but the Act now raises serious constitutional concerns. The preclearance requirement represents an intrusion into areas of state and local responsibility that is otherwise unfamiliar to our federal system. Some of the conditions that the Court relied upon in upholding this statutory scheme in South Carolina v. Katzenbach, and City of Rome v. United States, have unquestionably improved. Those improvements are no doubt due in significant part to the Voting Rights Act itself, and stand as a monument to its success, but the Act imposes current burdens and must be justified by current needs. The Act also differentiates between the States in ways that may no longer be justified.
Analysis: Northwest Austin is the key Supreme Court case for teams to cite when dealing with Court precedent for this topic. It is essential that pro teams evaluate the ideas Northwest Austin put forth, specifically that intrusion into the state process of running elections must be justified by current conditions. Northwest Austin is critical for the authorship of Shelby County because it addressed the validity of the Voting Right Acts unequal application.
Warrant: The reason Northwest Austin is so critical to Shelby County is because the case established the Constitutional interpretation of equal sovereignty that the VRA so egregiously !"# %"&'()*+, -*. /0#12, 3)4"'-"5 6789
!"#$%&'( *+&,-. :9 violated. This was the precedent used by the majority decision in the court ruling invalidating Section 4.
Harris, Jeffrey. "The Court Meant What it Said in Northwest Austin." SCOTUSblog. Bloomberg Law, 25 Jun 2013. <http://www.scotusblog.com/2013/06/the-court- meant-what-it-said-in-northwest-austin/>. 4 Jan 2014.
Four years ago, in Northwest Austin Municipal Utility District No. One v. Holder, the Court held that Section 5 of the Voting Rights Act raises serious constitutional questions. The Acts preclearance remedy in which covered jurisdictions must affirmatively justify their duly enacted legislation before federal officials imposed substantial federalism costs and was justified at the time of enactment only by the exceptional conditions then prevailing in covered jurisdictions. The Acts coverage formula was based on data that is now more than 35 years old, and there was considerable evidence that it fails to account for current political conditions. Although the Court ultimately decided the case on narrower statutory grounds, it did not mince words in stating that Section 5 was in peril unless it was updated to reflect the fact that we are now a very different Nation than we were in 1965. It is now clear that the Court meant what it said. In todays decision in Shelby County, the Court cited Northwest Austin more than thirty times, and Sections I, II, and III.A of the Courts decision are strikingly similar to Sections I and II of Northwest Austin. Indeed, there are only about five pages of new material in the majority opinion, which respond to specific arguments raised by the government and the dissent.
Analysis: This evidence is key for showing just how critical Northwest Austin was in deciding Shelby County. The Constitutional principle and precedent remained the same between the two cases, which is critical when considering the validity of Shelby County. Be careful to make the link between constitutionality and the role of the Supreme Court. The Supreme Courts role is to determine constitutionality, and one of the ways they evaluate the constitutionality of laws is looking at how previous laws have interpreted the Constitution. !"# %"&'()*+, -*. /0#12, 3)4"'-"5 6789
Warrant: A variety of Supreme Court cases in the past have clearly upheld Congresss ability to make its own decisions when passing election laws. The Court has made a variety of allowances to Congress that permit Congress to pass a variety of voting laws, especially the regulation of voting laws in the states.
Katz, Ellen. "How Big is Shelby County?." SCOTUSblog. Bloomberg Law, 25 Jun 2013. <http://www.scotusblog.com/2013/06/how-big-is-shelby-county/>. 4 Jan 2014.
Congress did assemble a lengthy record with evidence supporting its own judgment that the VRAs preclearance requirement is necessary and important in covered jurisdictions. Shelby Countys dismissal of that legislative judgment markedly breaks from precedent upholding congressional discretion in this realm. The decision significantly diminishes Congresss ability to craft future remedies for racial discrimination in voting and beyond. Indeed, after today, an administrative agency acting within the sphere of its expertise enjoys more discretion than does Congress when acting in the realm in which its power was once viewed to be at its apogee. At oral argument last winter, Justice Kagan bristled at the notion that the Court, rather than Congress, was the proper institution to decide when remedial action in this realm was needed.
Analysis: This is critical for rebutting claims by Pro about Constitutionality and precedent. Precedent actually was not in favor of passing Shelby County, despite Chief Justice Roberts liberal citation of Northwest Austin. That case actually very clearly is in favor of VRA and only calls into question Section 5. Con teams need to know very well the Supreme Court cases that led up to Shelby County and there really is very little evidence to support the Courts interference !"# %"&'()*+, -*. /0#12, 3)4"'-"5 6789
!"#$%&'( *+&,-. :; with Congresss ability to regulate election law, given there ability to regulate election law is actually written in the Constitution. Significantly, the case South Carolina v. Katzenbach argued that Congress actually did have power to regulate election law, and as such was really the only court precedent before Shelby County.
Answer: The decision in Shelby County defies Court precedent and represents an activist Court who is making a judicial power grab.
Warrant: The Court has traditionally been the weakest institution among the three. Its powers are ill-defined in the Constitution, but it is generally agreed that the Court does not have a great deal of power to regulate Congress. Really, its only ability is judicial review which was not even established in the Constitution, but instead in the case of Marbury v Madison. Because of this, it is unlikely that there was actually sufficient precedent to support the majority in Shelby County.
Greenhouse, Linda. "Linda Greenhouse on the Roberts Project." Civil Liberties Law Review. Harvard Civil Rights, 10 Oct 2013. <http://harvardcrcl.org/2013/10/11/linda-greenhouse-on-the-roberts- project/>. 4 Jan 2014.
Regarding race, Ms. Greenhouse believes that the Roberts Court is trying to get the government out of the business of race. For example, she notes that Shelby County is one of the most activist and astonishing decisions of the Court because they wretched out the meaning of the 15 th Amendment and ignored precedent. She frames Shelby County as an enormous judicial power grab, which was ironic because the Majority in Shelby County was in the minority in Windsor saying that the Court should defer to Congress. In Fisher, she said that there was no circuit split and that there were a number of problems with the case, including the issue of standing. She considers Fisher to be an overreach by the Court 4 justices granted cert on the assumption that they could get Kennedy, but they couldnt get him all the way. She noted that in both Fisher and Shelby County that there was very little legal analysis and the opinions boil down too simply that the Court could get 5 justices. !"# %"&'()*+, -*. /0#12, 3)4"'-"5 6789
!"#$%&'( *+&,-. :;
Analysis: Precedent is distinctly confusing. Sometimes the Court follows precedent, sometimes it doesnt. The vast majority of the time, the Court defers to precedent in a practice known as stare decisis. This deferral to precedent is respected in the legal community and it is the reason overturning of past decisions made by the Court is especially surprising. The judiciary not following precedent is considered an activist court, and here this evidence is key in showing that the Roberts court took a particularly activist approach with respect to precedent, namely in their ignoring of precedent.
Answer: Justice Ginsberg argues that the majority completely disregarded precedent.
Warrant: Justice Ginsberg cites post-Civil War amendments that clearly establish the role of the judiciary in regards to Congresss ability to regulate election law, and views the decision to overturn Shelby County as not being supported by any prior Court decisions.
Cohen, Andrew. "On Voting Rights, a Decision as Lamentable as Plessy or Dredd Scott." Atlantic. 25 Jun 2013. <http://www.theatlantic.com/national/archive/2013/06/on- voting-rights-a-decision-as-lamentable-as-plessy-or-dred-scott/276455/>. 4 Jan. 2014.
In a passionate dissent, Justice Ruth Bader Ginsburg immediately homed in on the extraordinarily aggressive nature of what the Court has just done. "The question this case presents," she wrote, "is who decides whether, as currently operative, Section 5 remains justifiable, this Court, or a Congress charged with the obligation to enforce the post-Civil War amendments 'by appropriate legislation.'" Until today, Justice Ginsburg wrote, the Court "had accorded Congress the full measure of respect its judgments should garner" in implementing that anti-discriminatory intent of the Fourteenth and Fifteenth Amendments. Until today. "The Court," Justice Ginsburg wrote, "makes no genuine attempt to engage with the massive legislative record that Congress assembled. Instead, it relies on increases in voter registration and turnout as if that were the whole story." !"# %"&'()*+, -*. /0#12, 3)4"'-"5 6789
!"#$%&'( *+&,-. :;
Analysis: Ginsberg clearly argues that the Court completely ignored previous precedent and thus had not real justification for passing Shelby County. This is a very powerful piece of evidence, because it shows that one of the greatest legal scholars in the United States, and one of the most well-respected Supreme Court justices, disagrees with the precedent used to justify overturning Section 4. It is imperative that Con teams explain clearly how Shelby County violated precedent, and this from Justice Ginsberg helps teams do that in a concise manner.
Argument: It is not constitutional to discriminate against states according to the equal sovereign intentions of the Constitution.
Warrant: According to equal sovereignty, states can only be treated differently if that different treatment is justified by existing differences. These existing differences were never proven to the Supreme Court to have been existent.
Wood, Jonathan. "Shelby County: Are All States Created Equal?" Pacific Legal Foundation Liberty Blog. Pacific Legal Foundation, 1 July 2013. Web. 06 Jan. 2014. <http://blog.pacificlegal.org/2013/shelby-county-are-all-states-created- equal/>.
"The Voting Rights Act did not always violate the principle of equal sovereignty. States were originally treated differently because of then existing distinctions; covered states had lower minority voter participation and had recently used discriminatory election procedures. But that was 40 years ago. Today the singling out of these states could not be justified by existing differences. And for that reason, the principle of equal sovereignty was violated."
Warrant: Although the existence of equal sovereignty may seem to burden any of Congress's action, it is not as much of a burden because differences exist among the states which will typically justify different treatment. On the other hand, equal sovereignty protects states from abuse from the federal government.
Wood, Jonathan. "Shelby County: Are All States Created Equal?" Pacific Legal Foundation Liberty Blog. Pacific Legal Foundation, 1 July 2013. Web. 06 Jan. 2014. <http://blog.pacificlegal.org/2013/shelby-county-are-all-states-created- equal/>. !"# %"&'()*+, -*. /0#12, 3)4"'-"5 6789
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"While the principle of equal sovereignty may be an important new check on Congress power, the dissent overstates how much of a burden it will be. It does not mean that the federal government cannot adopt neutral regulations that have disparate impacts on states with different conditions, provided that those impacts are attributable to these conditions. A law that prohibited grazing on all federal lands, for instance, would be valid even though the effects of the law would disproportionately fall on the western states. Instead, the principle means that Congress can only pass laws if it is willing to apply the same standards to all of the states, and not just politically weaker ones. This principle also promotes a more robust federalism by ensuring that on policy issues that require experimentation, the states are able to explore solutions according to their own lights."
Warrant: States have the power to regulate elections and the principle of equal sovereignty was created in the Northwest Austin case. Coupled together, it is clear that the VRA infringes upon the right of states, while also discrimination among states.
Shelby County, Alabama V. Holder, Attorney General, Et Al. Supreme Court Of The United States. 25 June 2013. Supreme Court Opinions. Web. 6 Jan. 2014. <http://www.supremecourt.gov/opinions/12pdf/12-96_6k47.pdf>.
"Indeed, the Tenth Amendment re- serves to the States all powers not specifically granted to the Federal Government, including the power to regulate elections. Gregory v. Ashcroft, 501 U. S. 452, 461462. There is also a 'fundamental prin- ciple of equal sovereignty' among the States, which is highly perti- nent in assessing disparate treatment of States. Northwest Austin, supra, at 203. The Voting Rights Act sharply departs from these basic principles. It requires States to beseech the Federal Government for permission to implement laws that they would otherwise have the right to enact and execute on their own. And despite the tradition of equal sover- eignty, the Act applies to only nine States (and additional counties). That is why, in 1966, this Court described the Act as stringent and potent, Katzenbach, 383 U. !"# %"&'()*+, -*. /0#12, 3)4"'-"5 6789
!"#$%&'( *+&,-. :8 S., at 308, 315, 337."
Analysis: Make clear that Congress ought to look to precedent to interpret the resolution. The principle of equal sovereignty exists accordingly to the Northwest Austin case. Moreover, this unjustified discrimination among states should be deemed unconstitutional as a result. That being said, this ruling does not create too much of a burden on Congress (although that this "burden" the negative will discuss has nothing to do with the constitutionality of Section 4), but rather protects the states. !"# %"&'()*+, -*. /0#12, 3)4"'-"5 6789
Answer: States are different in the case of discriminatory actions involving election rules.
Warrant: Equal sovereignty states that states can be treated differently if justified by the context. Congress should not ignore the history of violations made by certain states that limited the rights of voters.
Fishkin, Joseph. "The Dignity of the South." The Yale Law Journal 123 (2013): 175- 95.The Yale Law Journal Online. Yale University, 8 June 2013. Web. 03 Jan. 2014. <http://yalelawjournal.org/the-yale-law-journal-pocket-part/election- law/the-dignity-of-the-south/>.
"This particular way of paring back Congresss Reconstruction Power is all the more pointed because, in fact, federal law routinely treats one state differently from another in ways large and small, because states differ in their circumstances in innumerable respects. Compared to its neighbors, one state might have more military bases, more native Alaskans, more citizens without health insurance, or a more congenial mountain redoubt for the permanent storage of the nations radioactive waste. An equal dignity of the states principle would presumably continue to allow such differences in treatment where circumstances warrant. Therefore, to apply an equal dignity of the states principle in Shelby County to strike down section 5 would be to assert that the one salient difference in circumstances among the states that the Constitution requires Congress to ignore is the fact that certain states recently spent most of a century openly defying the Reconstruction Amendments by denying their minority citizens the right to vote."
Answer: The principle of equal sovereignty doesn't exist.
!"# %"&'()*+, -*. /0#12, 3)4"'-"5 6789
!"#$%&'( *+&,-. :; Warrant: The court has ruled against this "equal sovereignty" idea for years. The Reconstruction opponents argued that the federal government committed violations of state sovereignty but this was continuously ignored by the courts.
Fishkin, Joseph. "The Dignity of the South." The Yale Law Journal 123 (2013): 175- 95.The Yale Law Journal Online. Yale University, 8 June 2013. Web. 03 Jan. 2014. <http://yalelawjournal.org/the-yale-law-journal-pocket-part/election- law/the-dignity-of-the-south/>.
"The simplest solution is to uphold section 5 based on the record of post-1982 violations explored in detail by the court below, and to continue to allow jurisdictions to bail out of section 5 coverage if and when they wish to show that the past is dead. However, regardless of the outcome it reaches in Shelby County, the Court should find a way to reason about the case that avoids inscribing into the Constitution a principle of the equality, dignity, or 'equal dignity' of the states. In post-1865 America, the roots of such a principle are to be found in the losing arguments of Reconstructions opponents. They saw outrageous regional insult and indignity and outrageous violations of state sovereignty in the federal statutes that began the work the VRA continuesand, indeed, in the very Reconstruction Amendments the Court is now interpreting, which they bitterly opposed."
Warrant: Equal sovereignty does not exist between the states. Some states had more power than others by the definition of slaves that gave states more votes than what they deserved by the count of their voters.
Stevens, John P. "The Court & the Right to Vote: A Dissent." The New York Review of Books. NYREV, 15 Aug. 2013. Web. 06 Jan. 2014. <http://www.nybooks.com/articles/archives/2013/aug/15/the-court-right-to-vote- dissent/>.
!"# %"&'()*+, -*. /0#12, 3)4"'-"5 6789
!"#$%&'( *+&,-. :9 "The Courts heavy reliance on the importance of a 'fundamental principle of equal sovereignty among the States,' while supported by language in an earlier opinion by Chief Justice Roberts, ignored the fact that Article I, Section 2 of the Constitution created a serious inequality among the states. That clause counted 'three fifths' of a states slaves for the purpose of measuring the size of its congressional delegation and its representation in the Electoral College. That provision was offensive because it treated African-Americans as though each of them was equal to only three fifths of a white person, but it was even more offensive because it increased the power of the southern states by counting three fifths of their slaves even though those slaves were not allowed to vote. The northern states would have been politically better off if the slave population had been simply omitted from the number used to measure the voting power of the slave states. The fact that this 'slave bonus' created a basic inequality between the slave states and the free states has often been overlooked, as has its far- reaching impact. In 1800, for example, that bonus determined the outcome of the presidential election since it then gave the southern states an extra nine or ten votes in the Electoral College, and Thomas Jefferson prevailed over John Adams by only eight electoral votes. Because of the slave bonus, Adams served only one term as president. The slave bonus unfairly enhanced the power of the southern states in Congress throughout the period prior to the Civil War."
Warrant: Equal sovereignty only exists in the Constitution to the terms of how States are admitted the U.S., not to the states after the admittance.
Stevens, John P. "The Court & the Right to Vote: A Dissent." The New York Review of Books. NYREV, 15 Aug. 2013. Web. 06 Jan. 2014. <http://www.nybooks.com/articles/archives/2013/aug/15/the-court-right-to-vote- dissent/>.
"Both the underrepresentation of blacks and the overrepresentation of white supremacists in the South during that period contradict the notion that the 'fundamental principle of equal sovereignty among the States' is a part of our unwritten Constitution. As Justice !"# %"&'()*+, -*. /0#12, 3)4"'-"5 6789
!"#$%&'( *+&,-. :; Ginsburg pointed out in her largely unanswered dissent in the Shelby County case, the Court in its opinion upholding the original 1965 Voting Rights Act 'held, in no uncertain terms, that the principle [of equal sovereignty] 'applies only to the terms upon which States are admitted to the Union, and not to the remedies for local evils which have subsequently appeared.''"
Analysis: The very nature of our voting system (different amount of votes based on population in the House and equal amounts of votes in the Senate per state) proves that states should not be judged completely equal. Rather it proves that states should be judged in their context (in this case the size of their population). When judging states in context, it is clear that some states violated the rights of individuals and should be evaluated in that context, justifying the VRA's singling out of states that violated rights of equal people using election rules. On the other hand, equal sovereignty does not exist within the Constitution and has been struck down by the courts for years.
Argument: To overrule states on non-federal issues or, furthermore, to discriminate against states, there must be great reason, as in to remedy a constitutional divergence propagated by a state or states. This situation of a constitutional violation perpetrated by states, however, does not exist in regards to voting rights.
Warrant: The idea that Congress must use rational reasons to prevent racial discrimination in voting if it acts against the reserved powers of the states is established precedent, precedent that the Courts must follow.
Crum, Travis. "The Voting Rights Acts Secret Weapon: Pocket Trigger Litigation and Dynamic Preclearance." The Yale Law Journal 119.8 (2010): 1992-2038. The Yale Law Journal. Yale University, 2010. Web. 4 Jan. 2014. <http://www.yalelawjournal.org/images/pdfs/895.pdf>.
"In South Carolina v. Katzenbach, Chief Justice Warren, writing for an eight Justice majority, upheld section 5 as 'a valid means for carrying out the commands of the Fifteenth Amendment.' Establishing a permissive standard, Katzenbach directed that '[a]s against the reserved powers of the States, Congress may use any rational means to effectuate the constitutional prohibition of racial discrimination in voting.'"
Warrant: Ruled constitutional because of evidence of voting discrimination, but this information is no longer current (The first piece of evidence below proves that there must be rationality and the second piece demonstrates how old that evidence is). Moreover, the evidence not only just outdated, it is also inaccurate as states originally covered have made major improvements since 1982.
Crum, Travis. "The Voting Rights Acts Secret Weapon: Pocket Trigger Litigation and Dynamic Preclearance." The Yale Law Journal 119.8 (2010): 1992-2038. The !"# %"&'()*+, -*. /0#12, 3)4"'-"5 6789
"Sustaining the 'rationality of the [coverage] formula,' the Court found that Congress began work with reliable evidence of actual voting discrimination in a great majority of the [covered jurisdictions] . . . and . . . was therefore entitled to infer a significant danger of the evil in the few remaining States and political subdivisions covered by . . . the Act.' The Court deferred to Congresss judgment that the coverage formulas use of proxies'tests and devices' and turnout rates was an appropriate and constitutional means of enforcing the Fifteenth Amendment."
Wolf, Amy. "Constitutional Law Expert Comments on Controversial Supreme Court Voting Rights Act Decision." Vanderbilt Research. Vanderbilt University, 28 June 2013. Web. 03 Jan. 2014. <http://news.vanderbilt.edu/2013/06/constitutional-law-expert-comments-on- controversial-supreme-court-voting-rights-act-decision/>.
"In 2005, when Congress renewed the Voting Rights Act for 25 years, it continued to use the same coverage formula that it had enacted in 1982, which itself was based on electoral data from the late 1960s and early 1970s. But as the Court notes in Shelby, 'history did not end in 1965.' The jurisdictions that were covered in the 1970s justifiably, based on their then-recent history have made great strides since then. Indeed, African-American voter registration and turnout is now greater in most of the covered states than in many of the uncovered states."
Analysis: The court has established as precedent (in South Carolina v. Katzenbach) that Congress may use "rational means" if they are to act against reserved powers of the states. That being said, the effect must be to remedy the "racial discrimination in voting." Without evidence of this racial discrimination and accurate knowledge of where that discrimination is happening, it !"# %"&'()*+, -*. /0#12, 3)4"'-"5 6789
!"#$%&'( *+&,-. :; would be impossible to rationally create a remedy to such racial discrimination. Making it unfulfilling to the burden established by the courts to justify an infringement upon a state right. !"# %"&'()*+, -*. /0#12, 3)4"'-"5 6789
Answer: There is clear reason to act: discrimination against voters.
Warrant: The presence of racial discrimination in the voting process meets a burden set by the Supreme Court to abridge the reserved rights of the states: that sheer existence of racial discrimination in voting.
"Minority Lawmakers: Voting Rights Act Ruling a Huge Setback." POLITICO. Politico, n.d. Web. 04 Jan. 2014. <http://www.politico.com/story/2013/06/voting-rights- act-reaction-minority-lawmakers-93342_Page2.html>.
"Rep. Ruben Hinojosa (D-Texas), the chairman of the Congressional Hispanic Caucus, said he would work with his members to overturn the decision, which he called a 'major setback.' 'Since its inception, the VRA has protected the ability of every American to make their voice heard in the voting booth, and it is especially critical to the Latino community,' he said in a statement. 'Latino voters are the fastest growing segment of the United States electorate and have been consistently targeted by jurisdictions for the expressed purpose of diluting our collective power in the voting booth,' Hinojosa added. 'In the 2012 election an estimated 10% of votes were cast by Latinos and that number will continue to surge with 50,000 Latinos becoming eligible to vote every month.'"
Answer: Just because something is outdated doesn't make it inaccurate.
Warrant: Voting discrimination is widely prevalent. Just because the voting law is outdated does not make it inaccurate in deeming that there are racially discriminatory voting requirements. If anything, the law should be expanded.
"Reps. Keith Ellison (D-Minn.) and Mark Pocan (D-Wis.) have been pushing for a constitutional amendment affirming the right of all eligible citizens to vote. The two Democrats said Tuesdays decision further demonstrates the need for such a change to the Constitution. 'Todays Supreme Court decision is an assault on our most fundamental right as Americans,' Ellison and Pocan said in a statement. 'While the Court is correct that current law to protect voters from discriminatory voting laws is outdated, it is because its not expansive enough. The right to vote is under attack across the country. Already in 2013, more than 30 states have introduced over 80 restrictive voting laws that often target low-income, student, elderly and minority voters.'"
Answer: The evidence isn't outdated.
Warrant: The evidence is accurate at the point that many of the jurisdictions still had pervasive discrimination and election rule changes were shutdown.
Sensenbrenner, Jim. "Is The Voting Rights Act Outdated?" Interview by Corey Dade. NPR. NPR, 1 Dec. 2012. Web. 04 Jan. 2014. <http://www.npr.org/2012/12/01/166226641/is-the-voting-rights-act-outdated>.
"'What the 12,000 pages of [testimony] showed is that in many of the jurisdictions, particularly in Georgia and Texas, there still was pervasive discrimination, and that there were [election rules] changes ... that were not cleared because they had a discriminatory effect. "It really was a mountain of testimony. It was overwhelming. We had opponents of Section 5 come in and attempt to testify that this really wasn't the case, and they weren't able to make out a clear case.'"
!"# %"&'()*+, -*. /0#12, 3)4"'-"5 6789
!"#$%&'( *+&,-. :8 Answer: Out-datedness isn't reason enough to declare it unconstitutional.
Warrant: By providing a way to get out of coverage of the VRA, out-datedness becomes irrelevant because every state and district has an opportunity to be without VRA coverage: a more recent history of fair election rules.
Sensenbrenner, Jim. "Is The Voting Rights Act Outdated?" Interview by Corey Dade.NPR. NPR, 1 Dec. 2012. Web. 04 Jan. 2014. <http://www.npr.org/2012/12/01/166226641/is-the-voting-rights-act-outdated>.
"'But, again, there's a safety valve. If you don't think you have to be under Section 5, then you can petition to get out. That's the procedure that the people who are objecting in this court case should have done. If you can prove you have cleaned up your act and are not passing election laws that discriminate against minorities, then go convince the Justice Department, and you will be out from under the Voting Rights Act.'"
Analysis: There is a key reason to act against state rights and, even in the more extreme case, discriminate against states: the existence of racism in voting. Moreover, the claim that the evidence of which states and districts enact racist policies is not completely outdated and 12,000 pages of testimony aid in proof that discrimination still exists. In any case, every state and district cover has the opportunity of leaving the coverage of the VRA by just performing fair election rule changes.
Argument: States should be treated accordingly with the principle of equal sovereignty, the idea that each state should be as equals unless circumstances (like geographic region) justify differing treatment. That being said, the VRA treats states differently based on outdated data that makes states' footing not equal each new election period. Moreover, Congress is supposed to implement nationwide legislation not that that singles out states.
Warrant: In the Supreme Court case of Northwest Austin, the Court established the principle of equal sovereignty and created a burden to prove that different treatment among states is justified by the problem it targets.
Shelby County, Alabama V. Holder, Attorney General, Et Al. Supreme Court Of The United States. 25 June 2013. Supreme Court Opinions. Web. 6 Jan. 2014. <http://www.supremecourt.gov/opinions/12pdf/12-96_6k47.pdf>.
"In Northwest Austin, this Court noted that the Voting Rights Act 'imposes current burdens and must be justified by current needs' and concluded that 'a departure from the fundamental principle of equal sovereignty requires a showing that a statutes disparate geo- graphic coverage is sufficiently related to the problem that it targets.'"
Warrant: The Framers intended that all states be equal.
Denniston, Lyle. "Constitution Check: Do the States Have a Right to Be Treated Equally?" Constitution Daily. National Constitution Center, 2013. Web. 6 Jan. 2014. <http://blog.constitutioncenter.org/2013/07/constitution-check-do-the- states-have-a-right-to-be-treated-equally/>.
!"# %"&'()*+, -*. /0#12, 3)4"'-"5 6789
!"#$%&'( *+&,-. :; "When James Madison was working on drafts of the proposed Constitution, he suggested that there be a provision for bringing in new states, beyond the original 13. His draft suggested that any new state 'shall be admitted on the same terms with the original states.' That idea got some support during the Philadelphia Convention, but the final version part of Article IV said only that 'new states may be admitted by the Congress into this Union.'"
Warrant: States enter the U.S. as equals since the third new state. This idea of equal sovereignty has been tested by time.
Denniston, Lyle. "Constitution Check: Do the States Have a Right to Be Treated Equally?" Constitution Daily. National Constitution Center, 2013. Web. 6 Jan. 2014. <http://blog.constitutioncenter.org/2013/07/constitution-check-do-the- states-have-a-right-to-be-treated-equally/>.
"When the third new state, Tennessee, joined the Union in 1796, Congress explicitly declared for the first time that Tennessees entry would be 'on an equal footing.' Other new states have been given the same promise. The most enthusiastic Supreme Court embrace of that idea came in a 1911 Supreme Court decision, Coyle v. Smith. But, that, too, was in the context of the rights that states would have at the point of becoming part of the United States."
Warrant: Federalism gives equal sovereignty to states to prevent the federal government from interfering with individual states' adoption of different laws.
Wood, Jonathan. "Shelby County: Are All States Created Equal?" Pacific Legal Foundation Liberty Blog. Pacific Legal Foundation, 1 July 2013. Web. 06 Jan. 2014. <http://blog.pacificlegal.org/2013/shelby-county-are-all-states-created- equal/>.
!"# %"&'()*+, -*. /0#12, 3)4"'-"5 6789
!"#$%&'( *+&,-. :9 "The basic idea of the principle of equal sovereignty is that the federal government is responsible for adopting general nationwide legislation, but it cannot adopt laws for individual states. The Constitutions federalist scheme leaves state by state regulation to the states. If the application of Congress general laws varies, that variation should be due to differences in the conditions of each state. But if New York and North Dakota are going to have different laws, that should be because the citizens of those states chose the laws that worked for them. This enables the states to serve as laboratories of democracymeaning that a 'state may, if its citizens choose, try novel social and economic experiments without risk to the rest of the country.' But if the federal government can impose state by state regulation, the states are converted from laboratories to lab rats."
Analysis: Equal sovereignty is the main reason that the Supreme Court ruled Section 4 of the VRA unconstitutional, so focus on that. Although equal sovereignty is never directly stated in the Constitution, create a compelling case using Framer's intent and instances of state equality in legal writing to demonstrate that the principle of equal sovereignty is implied and living in the Constitution.
Answer: States don't have sovereignty in election rules, which presupposes this idea of equal sovereignty.
Warrant: The election system is not federalist in nature. Although there is a decentralized system of authority, this power is shared between the states. That being said, federal authority is superior.
Tolson, Franita. "Reinventing Sovereignty?: Federalism as a Constraint on the Voting Rights Act." Vanderbilt Law Review 65.4 (2012): 1195-259. University of South Florida Libraries. University of South Florida. Web. 6 Jan. 2014. <http://ehis.ebscohost.com.ezproxy.lib.usf.edu/eds/pdfviewer/pdfviewer?vid=4&s id=10fed620-d0ce-4581-9df7-256a15b7dee5%40sessionmgr4004&hid=105>.
"The Supreme Court conflates state autonomy with state sovereignty in the context of the VRA, in effect promoting the dualist undertones that characterize much of its federalism case law and giving the states significantly more power over elections than they otherwise would have. Its voting rights jurisprudence presupposes that the states still retain a large amount of 'sovereignty' over elections, leaving room for the Court to characterize the federal/state relationship over elections as one of shared power instead of viewing the state as subordinate to federal authority. The view of electoral authority as 'shared' has led the Court to defer more to the states over the matter of elections. This deference is due in part to the misconception that placing meaningful limits on congressional authority extends to all federalism issues, including those issues such as elections, which are not truly 'federalist' in nature but instead reflect a decentralized system of authority."
!"# %"&'()*+, -*. /0#12, 3)4"'-"5 6789
!"#$%&'( *+&,-. :; Warrant: Congress, under the Election Clause and the Enforcement Clause of the Fourteenth Amendment, give Congress the constitutional right to implement the VRA and "discriminate" among states. The rational basis exists for this discrimination.
Tolson, Franita. "Reinventing Sovereignty?: Federalism as a Constraint on the Voting Rights Act." Vanderbilt Law Review 65.4 (2012): 1195-259. University of South Florida Libraries. University of South Florida. Web. 6 Jan. 2014. <http://ehis.ebscohost.com.ezproxy.lib.usf.edu/eds/pdfviewer/pdfviewer?vid=4&s id=10fed620-d0ce-4581-9df7-256a15b7dee5%40sessionmgr4004&hid=105>.
"In reality, Congresss power under the Elections Clause and its power to enforce the dictates of the Fourteenth and Fifteenth Amendments ensure the constitutionality of the VRA. Consequently, the Court should employ rational basis review of the legislative record of the VRA for any new constitutional challenges going forward."
Warrant: States' rights have been limited more stringently in many other cases.
Posner, Richard A. "The Voting Rights Act Ruling Is about the Conservative Imagination." Slate Magazine. The Slate Group, n.d. Web. 06 Jan. 2014. <http://www.slate.com/articles/news_and_politics/the_breakfast_table/features/20 13/supreme_court_2013/the_supreme_court_and_the_voting_rights_act_striking_ down_the_law_is_all.html>.
"For apart from the spurious principle of equal sovereignty, all that the majority had on which to base its decision was tenderness for 'states rights.' One doubts that this actually is a primary value for any of the justices. The same conservative majority that decided Shelby had rejected a more cogent argument for states rights when it held three years ago in McDonald v. City of Chicago that the Second Amendmenta provision of the Constitution designed to secure state autonomy specifically, the right of states to maintain their own little armies, the militias, !"# %"&'()*+, -*. /0#12, 3)4"'-"5 6789
!"#$%&'( *+&,-. :: against federal abolitioncreates rights against states limiting gun ownership. It seems that the courts regard is not for states rights in some abstract sense but for particular policies that a majority of justices strongly favors."
Answer: Congress is granted the power to enforce the Fourteenth Amendment. Whether or not it is different in effect towards some states does not matter.
Warrant: States are clearly not completely sovereign as the Fourteenth Amendment grants the ability to decide for the states that are their citizens. This power can be exercised in any nature by Congress, whether discriminatory towards states or not.
Fishkin, Joseph. "The Dignity of the South." The Yale Law Journal 123 (2013): 175- 95.The Yale Law Journal Online. Yale University, 8 June 2013. Web. 03 Jan. 2014. <http://yalelawjournal.org/the-yale-law-journal-pocket-part/election- law/the-dignity-of-the-south/>.
"The great constitutional theorist Charles Black observed that one of the profound effects of the Fourteenth Amendment was to deny each state the right to decide who is a citizen of the state and who is not: federal law is now the exclusive arbiter of who is a citizen of either Massachusetts or Mississippi. This, Black argued, is 'another nail in the coffin of the theory that our States are sovereign.' He added: 'That coffin can use all the nails it can get, because it yawns every now and then, on some inauspicious midnight, to give up its undead, clad perhaps in the senatorial toga of Calhoun.'"
Analysis: Start by questioning the affirmative's justifications that equal sovereignty is in the Constitution. It is nowhere written in the original document and is only established in the Supreme Court Case Northwest Austin, although Justice Ginsburg, in her dissent, seems to disagree with its creation as a principle. Then, prove that states don't have sovereignty in the first place rather they have autonomy.
Argument: States have the right of self-governance in a constitutional manner before the federal government has any right to intrude and regulate. Self-governance, established by the 10th Amendment and Article 4 of the Constitution, is heralded in many cases and must be protected. The VRA, however, regulates the self-governance of states by declaring that some states must follow certain procedures to change their election rules.
Warrant: The dissent of Justice Black in South Carolina v. Katzenbach establishes that states have reserved powers that cannot be infringed upon by the federal government.
Crum, Travis. "The Voting Rights Acts Secret Weapon: Pocket Trigger Litigation and Dynamic Preclearance." The Yale Law Journal 119.8 (2010): 1992-2038. The Yale Law Journal. Yale University, 2010. Web. 4 Jan. 2014. <http://www.yalelawjournal.org/images/pdfs/895.pdf>.
"Dissenting, Justice Black decried the Acts intrusion on state sovereignty, claiming that it 'so distorts our constitutional structure of government as to render any distinction drawn in the Constitution between state and federal power almost meaningless.' According to Justice Black, preclearance treated the states as 'little more than conquered provinces.'"
Warrant: Congress has limited ability in enforcing the Fourteenth Amendment as states have the right to govern themselves. In order for the federal government to get involved, the restriction must be congruent and proportional.
Crum, Travis. "The Voting Rights Acts Secret Weapon: Pocket Trigger Litigation and Dynamic Preclearance." The Yale Law Journal 119.8 (2010): 1992-2038. The Yale Law Journal. Yale University, 2010. Web. 4 Jan. 2014. <http://www.yalelawjournal.org/images/pdfs/895.pdf>. !"# %"&'()*+, -*. /0#12, 3)4"'-"5 6789
!"#$%&'( *+&,-. :;
"In City of Boerne v. Flores, the Court limited Congresss Fourteenth Amendment enforcement authority against the states. Concerned that Congress would 'decree the substance of the Fourteenth Amendments restrictions on the States,' the Court asserted its supremacy in constitutional interpretation, declaring that '[t]here must be a congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end.' Boernes congruence and proportionality test was not a fit of spite, but rather the first in a series of cases limiting Congresss enforcement authority vis--vis the states."
Warrant: In response to a proposed amendment to give the federal government powers to enforce many cases of equal opportunity, government officials reacted with a common belief that states have the right to govern themselves...not the federal government.
City Of Boerne, Petitioner V. P. F. Flores, Archbishop Of San Antonio, And United States. Supreme Court Of The United States. 25 June 1997. Legal Information Institute at Cornell University Law School. Web. 4 Jan. 2014. <http://www.law.cornell.edu/supct/pdf/95-2074P.ZO>.
"Democrats and Republicans argued that the proposed Amendment would give Congress a power to intrude into traditional areas of state responsibility, a power inconsistent with the federal design central to the Constitution. Typifying of these views, Republican Representative Robert Hale of New York labeled the Amendment 'an utter departure from every principle ever dreamed of by the men who framed our Constitution' id., at 1063, and warned that under it 'all State legislation, in its codes of civil and criminal jurisprudence and procedures . . . may be overridden, may be repealed or abolished, and the law of Congress established instead.' Ibid. Senator William Stewart of Nevada likewise stated the Amendment would permit 'Congress to legislate fully upon all subjects affecting life, liberty, and property,' such that 'there would not be much left for the State legislatures,' and would thereby 'work an entire change in our form of government.'" !"# %"&'()*+, -*. /0#12, 3)4"'-"5 6789
!"#$%&'( *+&,-. :7
Analysis: In the dissent of South Carolina v. Katzenbach, in the City of Boerne v. Flores, and in government testimony, the state right of self-governance is one of the most valued pieces of the U.S. Constitution and is intrinsic in our form of government. Therefore, it should be protected before all. !"# %"&'()*+, -*. /0#12, 3)4"'-"5 6789
Answer: City of Boerne v. Flores isn't applicable precedence.
Warrant: City of Boerne v. Flores does not deal with racial discrimination in voting like the VRA does. On top of that, it does not refute a more relevant precedence, Morgan, which combatted the state of New York's discrimination of a specific language minority.
Northwest Austin Municipal Utility District Number One V. Michael B. Mukasey. United States District Court For The District Of Columbia. N.d. Brennan Center for Justice. Web. 4 Jan. 2014. <http://www.brennancenter.org/sites/default/files/legacy/Democracy/5.30.08.nam undo.decision.pdf>.
"Not until City of Boerne did the Supreme Court establish the more restrictive congruence and proportionality test for certain statutes enacted pursuant to the Fourteenth Amendment. In our view, however, the City of Boerne standard does not apply to the issue before us. To begin with, although the City of Boerne cases repeatedly describe the Voting Rights Act as congruent and proportional, they never state that Katzenbachs and City of Romes more deferential standard no longer governs constitutional challenges to statutes aimed at racial discrimination in voting. In fact, none of those cases even involved a statute dealing with race or voting rights. Whats more, in Lopez, decided two years after City of Boerne, the Court cited both Katzenbach and City of Rome with approval while rebuffing a constitutional challenge to section 5s 'federalism costs.' Lopez, 525 U.S. at 282-83 (internal quotation marks omitted). True, the same passage quotes City of Boerne, but only for the general proposition that Congress possesses broad enforcement powers. Id."
Northwest Austin Municipal Utility District Number One V. Michael B. Mukasey. United States District Court For The District Of Columbia. N.d. Brennan Center !"# %"&'()*+, -*. /0#12, 3)4"'-"5 6789
"Nor does anything in City of Boerne cast doubt on Morgan, in which the Court applied Katzenbachs rationality test to a provision of the Voting Rights Act that Congress enacted pursuant to the Fourteenth Amendment and crafted to protect the voting rights of a specific language minority. See supra pp. 28-29. The City of Boerne Court discussed Morgan at some length, explaining that it had upheld section 4(e) as a 'reasonable attempt to combat' unconstitutional discrimination by the state of New York."
Answer: Congress can limit self-governance under the enforcement provisions of the Fourteenth Amendment.
Warrant: The Fourteenth Amendment edits the rights reserved to the states and the people by giving Congress the enforcement power to provide equal opportunity for voting. The Fourteenth Amendment limits states rights in favor of the federal government similar to how other amendments function and therefore should be evaluated similarly.
Garland M. Fitzpatrick Et Al., Petitioners, V. Frederick Bitzer, Etc., Et Al. Frederick Bitzer, Etc., Et Al., Petitioners, V. Donald Matthews Et Al. Supreme Court Of The United States. 28 June 1976. Legal Information Institute at Cornell University Law School. Web. 4 Jan. 2014. <http://www.law.cornell.edu/supremecourt/text/427/445>.
"There can be no doubt that this line of cases has sanctioned intrusions by Congress, acting under the Civil War Amendments, into the judicial, executive, and legislative spheres of autonomy previously reserved to the States. The legislation considered in each case was grounded on the expansion of Congress' powers with the corresponding diminution of state sovereignty found to be intended by the Framers and made part of the !"# %"&'()*+, -*. /0#12, 3)4"'-"5 6789
!"#$%&'( *+&,-. :; Constitution upon the States' ratification of those Amendments, a phenomenon aptly described as a 'carv(ing) out' in Ex parte State of Virginia, supra, 100 U.S., at 346. It is true that none of these previous cases presented the question of the relationship between the Eleventh Amendment and the enforcement power granted to Congress under 5 of the Fourteenth Amendment. But we think that the Eleventh Amendment, and the principle of state sovereignty which it embodies, see Hans v. Louisiana, 134 U.S. 1, 10 S.Ct. 504, 33 L.Ed. 842 (1890), are necessarily limited by the enforcement provisions of 5 of the Fourteenth Amendment. In that section Congress is expressly granted authority to enforce 'by appropriate legislation' the substantive provisions of the Fourteenth Amendment, which themselves embody significant limitations on state authority. When Congress acts pursuant to 5, not only is it exercising legislative authority that is plenary within the terms of the constitutional grant, it is exercising that authority under one section of a constitutional Amendment whose other sections by their own terms embody limitations on state authority. We think that Congress may, in determining what is 'appropriate legislation' for the purpose of enforcing the provisions of the Fourteenth Amendment, provide for private suits against States or state officials which are constitutionally impermissible in other contexts."
Analysis: Self-governance only goes so far. The Fourteenth Amendment clearly limits the reserved powers of states by granting Congress the power to enforce equal opportunity. Moreover, self-governance may be established by City of Boerne v. Flores, but Morgan is much more applicable to a case encompassing both racial discrimination and voting rights.
!"# %"&'()*+, -*. /0#12, 3)4"'-"5 6789
!"#$%&'( *+&,-. :9 !;< = >?,@-"-+) A(@-1+
Warrant: The Equal Protection Clause is only violated when there is disparate intent as well as disparate impact; this is proved by past Supreme Court Cases.
Pillai, K.G. Jan. Shrinking Domain of Individious Intent. William and Mary Bill of Rights Journal. 2001. Web. 6 January 2013. Retrieved from http://scholarship.law.wm.edu/cgi/viewcontent.cgi?article=1352&context=wmbor j
'First, the Supreme Court has inextricably linked intent with effect. As explained in more detail in Part III, in McCleskey v. Kemp, where a capital sentencing practice was challenged on racial grounds, the Court required the challenger prove not only 'the existence of purposeful discrimination,' but also 'that the purposeful discrimination 'had a discriminatory effect' on him.' Moreover, in United States v. Armstrong, the defendant who alleged racially motivated selective prosecution was required to show not only discriminatory intent and discriminatory effect but also that similarly situated persons of a different race had not been prosecuted. By tying it to discriminatory effect and other appendages, the Court has deprived invidious intent of its independent constitutional significance. Recall that the impetus for the Davis rule was to formulate a standard to identify the unfair and unjustifiable disproportionate effect of governmental action that the Equal Protection Clause ought not to condone. Under the Davis trilogy, disproportionate effect-not necessarily discriminatory effect-was only one among several in the checklist of factors that might tend to demonstrate invidious intent Demonstration of disproportionate impact, supported by proof of invidious intent, would have been sufficient to prohibit a governmental action or policy based on the Davis rule. According to the Court's changed formula, an equal protection plaintiff is saddled with the burden of showing that an invidiously motivated action or policy is not only disproportionately burdensome, but discriminatory as well.' The second change to the intent prong of the Davis rule occurred when the Court made a distinction !"# %"&'()*+, -*. /0#12, 3)4"'-"5 6789
!"#$%&'( *+&,-. :; between simple racial motivation and predominant racial motivation in recent redistricting cases. As race traditionally has been among the unavoidable mix of factors that a legislature considers in making redistricting decisions, the Supreme Court found the Davis rule that barred action motivated at least in part to produce an adverse effect was inappropriate to achieve the goal of outlawing racial gerrymandering. Therefore, the Court, in a series of redistricting cases, held that redistricting constitutes unconstitutional racial gerrymandering only when race is 'the predominant factor motivating the legislature's [redistricting] decision.' The Court had no difficulty in recognizing that redistricting laws, though generally facially race-neutral, involve mixed motives, and that the only feasible way to examine their constitutionality is to subject them to strict scrutiny upon proof of racial motivation.' Such proof is ordinarily obvious on the face of laws creating majority-minority districts. Nevertheless, the Court ruled that strict scrutiny does not 'apply to all cases of intentional creation of majority-minority districts,' ' absent a showing that race was the predominant factor in their creation.'
Warrant: The fifteenth amendment only protects against intentional discrimination, not against disparate impact.
Clegg, Roger. The Future of the Voting Rights Act after Bartlett and NAMUDNO. Cato Institute Supreme Court Review. Web. 6 January 2013. <http://object.cato.org/sites/cato.org/files/serials/files/supreme-court- review/2009/9/bartlettnamudno-clegg_0.pdf>.
If a voting practice or procedure is racially nondiscriminatory on its face, is applied equally and nondiscriminatorily, and was not adopted with any discriminatory intent, then can it be said to be racial discrimination? For example, suppose that a state does not allow prison inmates to vote. Suppose further that this law applies to all inmates without regard to color, was adopted without a desire to disenfranchise African Americans (indeed, perhaps when the state had very few African Americans, or when most of the African Americans there were slaves and thus !"# %"&'()*+, -*. /0#12, 3)4"'-"5 6789
!"#$%&'( *+&,-. :; were never expected to vote anyhow), and has always been applied to all inmates without regard to race. But it turns out that, in 2009, there is now a substantially higher percentage of African Americans in the prison population than in the general population. Are African Americans now being denied the right to vote 'on account of race' (to quote the Fifteenth Amendment)? If you said yes, you may have a future in this-or-that Legal Defense and Education Fund. The correct answer is that this is not racial discrimination, and so such laws are not fairly within Congresss enforcement authority under Section 2 of the Fifteenth Amendment. Whats more, whenever the government bans actions (public or private) that merely have racially disparate impact, two bad outcomes are encouraged that would not be encouraged, or would at least be encouraged less, if the government stuck to banning actions that are actually racially discriminatory. First, actions that are perfectly legitimate will be abandoned. Second, if the action is valuable enough, then surreptitiousor not so surreptitiousracial quotas will be adopted so that the action is no longer racially disparate in its impact.
Warrant: Section five is based only on disparate impact, which statistically, doesnt occur anymore, nor does it counter disparate intent because the mechanisms for racism in voting have been banned already. Overall, section five no longer counters disparate impact or intent.
Shapiro, Ilya. The Voting Rights Act Doesn't Reflect Current Political Conditions. US News and World Report. 27 February 2013. Web. 6 January 2013. Retrieved from http://www.usnews.com/debate-club/should-the-supreme-court-strike-down-the- preclearance-provision-of-the-voting-rights-act/the-voting-rights-act-doesnt- reflect-current-political-conditions.
That is, while the 'historic accomplishments of the Voting Rights Act are undeniable,' as the court said 43 years later, the modern use of Section 5which requires federal 'preclearance' of any changes in election law in certain jurisdictions'raises serious constitutional concerns.' Most recently renewed in 2006, the provision adopts flawed assumptions and flies in the face of the 15th Amendment's requirement that all voters be !"# %"&'()*+, -*. /0#12, 3)4"'-"5 6789
!"#$%&'( *+&,-. :; treated equally. Section 5's preclearance scheme is an anachronism, based on 40- year-old data that doesn't reflect current political conditions. For example, the racial gap in voter registration and turnout is lower in states originally covered by Section 5 than it is nationwide. Blacks in some covered states actually register and vote at higher rates than whites. Facetious tests and sinister devices are now permanently bannedwhile even individual violations are exceedingly rare and no more likely to occur in Section 5 jurisdictions. Indeed, the list of Section 5 jurisdictions is bizarre: six states of the Old Confederacy, plus Alaska, Arizona, and parts of states ranging from New Hampshire to South Dakota. Three New York counties are covered, all New York City boroughs. What's going on in the Bronx, Brooklyn, and Manhattan that isn't in Queens or Staten Island? Four justices famously hail from Gotham; maybe they know something we don't."
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The decision in Shelby County v. Holder revolves around Section 4 of the Voting Rights Act, which establishes a 'coverage formula' to determine which states and local governments fall under Section 5, and therefore need to get approval before changing their voting laws. The justices ruled that Section 4 is unconstitutional, and that the formula used for decades revised and extended several times by Congress can no longer be used to establish those 'preclearance' requirements: 'The conditions that originally justified these measures no longer characterize voting in the covered jurisdictions.'
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!"#$%&'( *+&,-. :: Warrant: Section four is based on disparate outcomes because the tests or devices are banned by law. Section Four of the Voting Rights Act. Department of Justice. Web. 6 January 2013. Retrieved from "##$%&&'''()*+#,-.(/01&-2#&340*#&10#&5,+-&+.-67($"$
As enacted in 1965, the first element in the formula was whether, on November 1, 1964, the state or a political subdivision of the state maintained a 'test or device' restricting the opportunity to register and vote. The Act's definition of a 'test or device' included such requirements as the applicant being able to pass a literacy test, establish that he or she had good moral character, or have another registered voter vouch for his or her qualifications. The second element of the formula would be satisfied if the Director of the Census determined that less than 50 percent of persons of voting age were registered to vote on November 1, 1964, or that less than 50 percent of persons of voting age voted in the presidential election of November 1964. This resulted in the following states becoming, in their entirety, 'covered jurisdictions': Alabama, Alaska, Georgia, Louisiana, Mississippi, South Carolina, and Virginia. In addition, certain political subdivisions (usually counties) in four other states (Arizona, Hawaii, Idaho, and North Carolina) were covered. In fully covered states, the state itself and all political subdivisions of the state are subject to the special provisions. In 'partially covered' states, the special provisions applied only to the identified counties. Voting changes adopted by or to be implemented in covered political subdivisions, including changes applicable to the state as a whole, are subject to review under Section 5.
Analysis: This argument is saying that its unconstitutional to create laws combating disparate impacts, only disparate impact and intent are justified, under the fifteenth amendment. This give you two ways to impact this argument; first, you can argue that section four only looked to disparate impact by measuring voting rates and saying x is racist when there could be other factors causing differences in turnout, thus making section four unconstitutional. Further, you could argue that section five is also the enforcement mechanism for section four and that this is also unconstitutional, and by striking down section four, section five becomes non functional. !"# %"&'()*+, -*. /0#12, 3)4"'-"5 6789
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Answer: The arguments here show that these states had discriminatory intents, disparate impact can indicate racist intentions, and that it can be a legal warrant for legislation.
Warrant: These states actually have racist intent; section four was the only thing stopping it.
Vasilogambros, Matt. That Was Quick: Texas Moves Forward With Voter ID Law After Supreme Court Ruling. 25 June 2013. Web. 6 January 2013. National Journal. Retrieved from http://www.nationaljournal.com/politics/that-was-quick-texas- moves-forward-with-voter-id-law-after-supreme-court-ruling-20130625.
Just hours after the Supreme Court handed down a ruling that guts parts of the Voting Rights Act, Texas is moving forward with a controversial voter ID law that state Attorney General Greg Abbott hopes to implement right away. 'With today's decision, the state's voter ID law will take effect immediately,' Abbott said in a statement to the Dallas Morning News. 'Redistricting maps passed by the Legislature may also take effect without approval from the federal government.' The Texas law requires voters to show photo identification to votea measure that was blocked by the Justice Department, arguing the law could discriminate against racial minorities. At the time, Attorney General Eric Holder called the law a 'poll tax.' Although the Justice Department still maintains the right to approve voting-rights laws in counties that have historically implemented discriminatory laws against minorities, Congress now needs to determine those areas. The high court threw out Section 4, which defined those areas as including Alabama, Alaska, Arizona, Georgia, Louisiana, Mississippi, South Carolina, Texas, and Virginia, and other precincts.
Warrant: Countering disparate impact is crucial to countering discrimination; courts interpretations of Title VII proves this.
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!"#$%&'( *+&,-. :7 Title VIIs Disparate Impact Doctrine: The Difference Its Made for Women. American Constitution Society for Law and Policy. 7 May 2013. Web. 6 January 2013. Retrieved from http://www.acslaw.org/acsblog/title-vii%E2%80%99s-disparate- impact-doctrine-the-difference-it%E2%80%99s-made-for-women.
This week the Senate HELP Committee will vote on the nomination of Thomas Perez to be the next Secretary of Labor. In the midst of the many unfair and unfounded attacks lobbed against Mr. Perez in recent weeks, an important legal doctrine for combating sex discrimination has also come under attack: disparate impact. Under Mr. Perezs leadership as the Assistant Attorney General for Civil Rights at the Department of Justice, the Department has employed the longstanding disparate impact analysis to combat employment discrimination. Its application is not only legally sound, but exceptionally important to eliminate discrimination and further justice. The Supreme Court and Congress have long made clear that Title VII of the Civil Rights Act 'prohibits employers from using employment practices that cause a disparate impact' based on sex and other protected classes. The doctrine of disparate impact allows for a remedy when an employment practice that may be neutral on its face has an unjustified adverse effect on members of a protected class. Disparate impact has been crucial to addressing entrenched discriminatory employment practices. Indeed, womens entry into high-wage, nontraditional occupations has been made possible in large part by challenges to unfortunate employment practices that disproportionately disadvantage women, which would have otherwise remained unchanged but for the Title VIIs disparate impact doctrine. Courts, for example, have struck down height, weight or strength requirements implemented by employers in police departments, fire departments, in construction and in correctional facilities because the requirements were not related to job performance, but instead reflected stereotypes about the skills required for a position. Moreover, there are often alternative practices that may both satisfy job performance demands and allow for a diverse workforce.
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!"#$%&'( *+&,-. :8 Warrant: Large sample sizes with disparate impact can be an indication of disparate treatment (state populations should suffice).
Burton, Melinda K. Using Statistics to Prove Disparate Treatment Discrimination. American Bar Association. May 2013. Web. 6 January 2013. Retrieved from http://www.americanbar.org/publications/young_lawyer/2012- 13/may_2013_vol_17_no_7/using_statistics.html
Statistics can be a powerful tool in supporting, or defending, various litigation matters, including those involving claims of discrimination in employment. When one thinks of statistics being used to help prove a discrimination claim, one usually considers their use in the context of a disparate impact discrimination claimwhere a facially neutral employment practice falls more harshly on one group of employees than another, and the practice is not justified by any business justification. Indeed, a prima facie case of disparate impact discrimination is established when a plaintiff identifies a specific employment practice to be challenged and proves through relevant statistical analysis that the challenged practice has an adverse impact on a protected group. But, did you know that statistics can also be used in the more common disparate treatment discrimination claim? Disparate treatment claims involve individuals who have been subject to an adverse employment action and allege that they have been intentionally treated differently on account of their race. While generally statistics cannot be used to establish a prima facie case of disparate treatment discrimination, statistics, however, may be used to establish that the employer's justification for the adverse action taken against the employee is a mere pretext for discrimination. 'Appropriate statistical data showing an employer's pattern of conduct toward a protected class as a group, can, if unrebutted, create an inference that a defendant discriminated against individual members of the class.' Conner v. State Farm Mut. Auto. Ins. Co., 273 Fed. Appx. 438 (6th Cir. 2008). Statistical evidence in combination with other circumstantial evidence can raise a triable issue of fact on the element of pretext. However, to be valid and useful in either type of discrimination casesdisparate impact or disparate treatmentone must !"# %"&'()*+, -*. /0#12, 3)4"'-"5 6789
!"#$%&'( *+&,-. :6 remember that the size of the sample must be statistically significant. Both the methodology and the explanatory power of the statistics are needed, and an expert statistician is often required. Small sample sizes are often rejected as having little probative value, because results from small sample sizes that show racial disparity can also be credited to or explained by simple random chance. Whether you are pursuing or defending a claim of discrimination, you should remember that statistics may be used in either disparate impact or disparate treatment cases and plan your case preparation accordingly.
Williams, Michael. Disparate Impact, Equal Protection, Congressional Power, And The Ricci Decision: Why 'Relaxed' Strict Scrutiny Should Apply When Congress Uses Its Section Five Enforcement Power To Prevent Violations Of The Fourteenth Amemendment. Missouri Law Journal. January 2013. Web. 6 January 2013. Retrieved From Http://Mississippilawjournal.Org/Wp- Content/Uploads/2013/01/Williams_Eicf1.Pdf.
A. Compelling Interest in Equal Protection The disparate-impact prong of Title VII uses race as a means of classification. Under the Equal Protection Clause, practices that involve racial classification are subject to strict scrutiny by the Supreme Court and must be shown to be 'narrowly tailored to achieve a compelling government interest.' Issues that have been recognized as compelling government interests are: diversity, remedying past discrimination, and preventing intentional and pre-textual discrimination. Title VII was implemented to remedy the effects of past discrimination within employment decisions and provides penalties for obvious discrimination. However, the disparate-impact prong is designed to prevent hidden discrimination, and provide equal opportunities regardless of race or gender. The Supreme Court dealt with facially neutral practices that have disparate results in Washington v. Davis, suggesting that disparate results may give rise to strict scrutiny, but not in that specific !"# %"&'()*+, -*. /0#12, 3)4"'-"5 6789
!"#$%&'( *+&,-. :; circumstance. Although the Equal Protection Clause does not provide its own disparate-impact analysis, this does not mean that there cannot be a compelling governmental interest to support disparate impact in the absence of actual discrimination.
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Argument: Section Four undermines state autonomy by undermining federalism, violating the constitution.
Warrant: Federalism is a significant concept in the Constitution
Federalism. Cornell University Law School Legal Information Institute. Web. 4 December 2013. Retrieved from "##$%&&'''()*'(+,-./))(/01&'/2&3/0/-*)456(
Federalism is a system of government in which the same territory is controlled by two levels of government. Generally, an overarching national government governs issues that affect the entire country, and smaller subdivisions govern issues of local concern. Both the national government and the smaller political subdivisions have the power to make laws and both have a certain level of autonomy from each other. The United States has a federal system of governance consisting of the national or federal government, and the government of the individual states. The U.S. Constitution grants the federal government with power over issues of national concern, while the state governments, generally, have jurisdiction over issues of domestic concern. While the federal government can enact laws governing the entire country, its powers are enumerated, or limited; it only has the specific powers allotted to it in the Constitution. For example, Article I, Section 8 of the Constitution grants Congress the power to levy taxes, mint money, declare war, establish post offices, and punish piracies on the high seas. Any action by the federal government must fall within one of the powers enumerated in the Constitution. For example, the federal government can regulate interstate commerce pursuant to the Commerce Clause of the Constitution but has no power to regulate commerce that occurs only within a single state. The amount of power exercised by the federal government is dependant upon how the various provisions of the Constitution are interpreted. For example, the U.S. Supreme Court expanded the powers of the federal government when it construed federal powers !"# %"&'()*+, -*. /0#12, 3)4"'-"5 6789
!"#$%&'( *+&,-. :; to include those 'necessary and proper' to effect the legislation passed by Congress. McCulloch v. Maryland, 17 U.S. 316 (1819). This construction allows the federal government to exercise power ancillary to those specifically listed in the Constitution, provided the exercise of those powers does not conflict with another Constitutional provision. In contrast, state power is not limited to express grants of power. Under the Tenth Amendment of the Constitution, States have all powers that are not specifically granted to the federal government, or forbidden to them under the Constitution. For example, although the Constitution grants the federal government the power to tax, state governments are also able to levy taxes to support themselves, because that power is not forbidden to them by the Constitution. State governments manage matters of local concern, such as child protective services, public schools, and road maintenance and repair.
Warrant: 4 major reasons why federalism to upholding freedom and is critical to democracy
Tabbarok, Alexander T. Arguments for Federalism. The Independent Institute. 20 September 2001. Web. 5 January 2013. Retrieved from http://www.independent.org/issues/article.asp?id=485
1. Laboratories of Democracy 'It is one of the happy incidents of the federal system,' Justice Louis D. Brandeis wrote in 1932, 'that a single courageous state may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country.' In a decentralized system ideas can be tried at the local level, there learning occurs, ideas are improved and then begin to diffuse throughout the rest of the country. This idea is more than theoretical. Airline deregulation began at the state level and was adopted nationally when it was noticed that in-state trips in large states that had deregulated were much cheaper than trips of the same distance that crossed state lines. Welfare reform and school choice are two other examples of recent policies that began at the state level. The lessons learned need not always be positive lessons. !"# %"&'()*+, -*. /0#12, 3)4"'-"5 6789
!"#$%&'( *+&,-. :; Other states and countries owe California a great debt, for example, for its demonstration of how not to deregulate electricity.
2. Diversity of Preferences The laboratory of democracy view implicitly assumes there is one best way to do something and that a decentralized trial and error process is a good way to discover what that best way is. If it were not for change, then from this viewpoint all jurisdictions would converge over time on a similar set of policies as they learned from one another what the best policies were. The diversity of preference view says that even in the long run, policies will differ across jurisdictions because people have different preferences. What is best for Rhode Island is not necessarily what is best for California, and what is best for San Jose is not necessarily what is best for San Francisco. By decentralizing power one can better match preferences with policies. The diversity of preference view implies that the more heterogeneous a society is, the more decentralized should be its institutions. Decentralization, by the way, doesn't simply mean decentralization to a smaller government unit; it may mean leaving the decision in private hands leaving a decision to private choice is in effect decentralization to the smallest political unit, the individual. In their classic work The Calculus of Consent Buchanan and Tullock make both the point about heterogeneity and decentralization to the individual when they write that 'Many activities that may be quite rationally collectivized in Sweden, a country with a relatively homogeneous population, should be privately organized in India, Switzerland, or the United States (p.116).'
3. Subsidiarity: Matching Economic and Political Jurisdictions Subsidiarity is a European term that means 'higher level governments should not do anything that lower levels government can do as well or better.' More generally, impact jurisdictions should be matched to political jurisdictions. What do I mean? Consider the issue of what level of government is responsible for the financing of fire houses. Suppose that the effective range or impact of the firehouses is 5 km and that the firehouse is located in a jurisdiction of 10 km (see diagram). If there are more voters in the central jurisdiction, then they can foist some of the taxes for the fire station on !"# %"&'()*+, -*. /0#12, 3)4"'-"5 6789
!"#$%&'( *+&,-. :; taxpayers in the outer jurisdiction. Since the benefits of the firehouse go solely to the central jurisdiction but the costs are spread across both jurisdictions, the central jurisdiction is being subsidized and thus has an incentive to spend more on firehouses than is justified by the actual benefits. This is what we mean by pork barrel legislation. There are 435 districts represented in Congress, for example, so it costs each district approximately 1/435th of the actual cost to build a local project such as the Lawrence Welk museum. Thus, we get too many museums devoted to Lawrence Welk. A great cost to us all. The other alternative is that the outer jurisdiction contains more voters than the central jurisdictionthus, seeing no benefits, they have little incentive to impose costs. In this case the central jurisdiction may have too little spent on firehouses. Note also that the subsidiarity principle also implies that decentralization can go too far. If we split the central district into two, then there could be wasteful duplication of services; two firehouses when one would do. Similarly when dealing with public goods the subsidiarity principle implies that the public goods with the largest extensive range should be supplied by the political jurisdiction with the largest extensive range. National defense is the obvious example. If national defense were left to the states each state would have an incentive to free ride on the provision of defense by the others. If New York pays for a nuclear missile, then why should New Jersey pay for anything at all? When we think of federalism we naturally think of the federal government and the states, but the principles that motivate federalism apply at all levels, and we should be imaginative in thinking about how political units can be designed to match impact jurisdictions. There is no reason, for example, why the political unit that determines fire expenditures need be the same as the unit that determines water or school expenditures and indeed in the United States in addition to national, state and local governments there are many thousands of special districts that are often functionally organized and that control areas such as water, streets, lighting and so forth.
4. Liberty through Mobility and Competitive Federalism Oppression at the federal level is difficult to escape. Oppression by the states can be countered by mobility. The more powers that are devolved to lower levels, the easier !"# %"&'()*+, -*. /0#12, 3)4"'-"5 6789
!"#$%&'( *+&,-. :; it becomes pick and choose policies by moving. Gays may move to cities like San Francisco where they are better tolerated, and indeed if enough of them move they can become a political force. In this respect, the idea is similar to the diversity of preferences notion except there the emphasis was on the idea that federalism allows pre-existing diversities to be recognized. Whereas here the idea is that you can move to a city or town that better reflects your preferences. One sometimes hears, for example, that federalism was more important in the 18th century when the people of Virginia really were quite different than the people of New England. Today, so the argument goes, now that people are much more likely to move from one state to another the differences are less clear and so federalism is less important. While this argument makes some sense from the diversity of preference view, it makes no sense at all from the perspective of mobility because it is mobility that generates differences in preferences and competitive federalism works better the more mobile citizens are. The mobility argument, however, is about more than preferences, its about checking and limiting government power. The idea is not simply that exit allows for islands of liberty but that the threat of exit means that you dont have to leave to achieve liberty. Knowing that taxpayers will leave if taxes become too high, for example, means that taxes wont become too high. As Nobel Laureate in economics James Buchanan (1995/1996) put it, in an ideal federalism the 'federal government is constitutionally restricted to the exercise of the minimal or protective state functions, while all other functions are carried out by separated state or provincial units. The availability of the exit option, guaranteed by the central government, would effectively place limits on the ability of the state-provincial governments to exploit citizens . . . Federalism serves the dual purpose of allowing the range or scope for central government activity to be curtailed and, at the same time, limiting the potential for citizen exploitation by state-provincial units.'
*original source includes ellipses
Warrant: Traditionally, the right to regulate elections falls under the jurisdiction of states; section four violated this and infringed on the sovereignty of states.
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!"#$%&'( *+&,-. ::
Shelby County v Holder. Cornell University Law School Legal Information Center. 27 February 2013. Web. 4 January 2013. Retrieved from "##$%&&'''()*'(+,-./))(/01&21$+#&+/-#&34567(
Another concern shared by many of Shelby Countys amici is that the VRA impinges on federalism and state sovereignty with regard to elections. In particular, the amici point to the supervisory power historically granted to states over their own state elections. While the amici admit that this power is not absolute, they find that the unequal restrictions placed on certain states under the VRA is an infringement on state sovereignty and puts those states on unequal footing from their neighbors, raising federalism concerns. In response, amici supporting Respondent address sovereignty concerns as competing with Constitutional accountability. Additionally, they look to the Supreme Courts history of support for the VRA, finding that its restrictions do not infringe on state sovereignty concerns. They also suggest that any imposition the VRA coverage puts on a state is proportional to the need for such coverage with the goal of protecting minority voters.
Warrant: Preclearance from Section four undermined state attempts to pass voter reform laws. Applewhite, Scott. For Republicans, no easy answers on Voting Rights Act. Associated Press and CBS news. 5 July 2013. Web. 5 January 2013. Retrieved from http://www.cbsnews.com/news/for-republicans-no-easy-answers-on-voting- rights-act/.
Against that backdrop, Southern Republicans celebrated Chief Justice John Roberts' opinion that effectively frees all or parts of 15 states with a history of racial discrimination from having to get advanced federal approval for any election procedure. The so-called 'preclearance' provision anchored the law that Congress renewed four times since its 1965 passage as the crowning achievement of the civil rights movement for black Americans. The law contains an 'opt-out' provision that allowed a jurisdiction to ask a federal court for release from preclearance if it has !"# %"&'()*+, -*. /0#12, 3)4"'-"5 6789
!"#$%&'( *+&,-. 877 established a record of non-discrimination. Roberts said that process - never used successfully by an entire state - wasn't enough. 'The court recognized that states can fairly design our own (district) maps and run our own elections without the federal government,' Louisiana Gov. Bobby Jindal said in a statement. Citizens can still sue to overturn state laws, but they'll likely have to prove discrimination after the fact, rather than local authorities having to convince federal officials in advance that a law wouldn't discriminate. Virginia Attorney General Ken Cuccinelli, a Republican running for governor, said: 'I do not believe we have the institutional bigotry like we had before.' GOP officials in Texas and Mississippi promised within hours of the decision to enforce new laws requiring voters to show identification at polls. The U.S. Justice Department's civil rights lawyers had frozen the Mississippi law while they considered effects on minority voters, while a panel of federal judges in Washington blocked the Texas law because of its potential to harm low-income and minority voters. North Carolina Republicans said they'd enact their own voter identification law. Texas Gov. Rick Perry signed new congressional district maps - tilted to Republican advantage - that federal authorities would have had to review. But in Washington, Republicans like House Majority Leader Eric Cantor of Virginia embraced the nuances of Roberts' ruling. The court didn't actually strike down preclearance, instead tossing rules that determined which jurisdictions got oversight. Congress is free to rewrite those parameters and revive advance review, Roberts wrote.
Warrant: The government was no longer warranted in enforcing section four and overriding states rights because the states covered under section four had substantially improved.
Bravin, Jess. Court Upends Voting Rights Act. Wall Street Journal. 25 June 2013. Web. 4 January 2013. Retrieved from http://online.wsj.com/news/articles/SB10001424127887323469804578521363840 962032
"'This was strong medicine, but Congress determined it was needed to address entrenched racial discrimination in voting,' he wrote. 'But history did not end in !"# %"&'()*+, -*. /0#12, 3)4"'-"5 6789
!"#$%&'( *+&,-. 878 1965.' The formula still used to identify states subject to preclearance involved past voting practices. In 1965 and through several subsequent reauthorizations, Congress identified states and localities that required voters to pass such obstacles as literacy or character tests, and had less than 50% voter registration or turnout in the 1964, 1968 and 1972 federal elections. In 1965, Chief Justice Roberts wrote, the formula made sense. In Mississippi, for instance, 69.9% of whites were registered to vote, compared to 6.7% of blacks. In 2004, by contrast, black registration in Mississippi actually exceeded that of whites, 76.1% compared to 72.3%. He observed that Philadelphia, Miss., where civil-rights workers James Chaney, Andrew Goodman and Michael Schwerner were murdered in 1964, and Selma, Ala., where "Bloody Sunday" saw police beat voting-rights marchers in 1965, both have African-American mayors today. While the Voting Rights Asct was 'immensely successful at redressing racial discrimination and integrating the voting process,' it had done so by undermining 'the integrity, dignity, and residual sovereignty of the States,' the chief justice wrote. 'States must beseech the Federal Government for permission to implement laws that they would otherwise have the right to enact and execute on their own,' he said.
Analysis: This argument is basically just saying that federalism is historically important in the United States Constitution; each state is different, so different laws fit different states, and the competition between states forces them to respect freedom, otherwise people can leave. Essentially, the federal government infringed on the concept of federalism by undermining their ability to pass voting reforms, without being warranted because the states covered under section four no longer acted in a discriminatory manner. Thus, Section four of the VRA is unconstitutional. !"# %"&'()*+, -*. /0#12, 3)4"'-"5 6789
Answer: State autonomy and federalism can be overruled if in conflict with the Constitution or with federal law.
Warrant: States that conflict with the Constitution or Federal Laws are trumped by the federal laws or the Constitution due to the Supremacy Clause.
The Supremacy Clause and Federal Preemption. University of Missouri-Kansas City Law School. Web. 5 January 2013. Retrieved from "##$%&&'()*+,-./+01,&2(/,'#3&$4560/#7&2#48('7&/59'()&$400-$#859+"#-
The preemption doctrine derives from the Supremacy Clause of the Constitution which states that the 'Constitution and the laws of the United States...shall be the supreme law of the land...anything in the constitutions or laws of any State to the contrary notwithstanding.' This means of course, that any federal law--even a regulation of a federal agency--trumps any conflicting state law. Preemption can be either express or implied. When Congress chooses to expressly preempt state law, the only question for courts becomes determining whether the challenged state law is one that the federal law is intended to preempt. Implied preemption presents more difficult issues, at least when the state law in question does not directly conflict with federal law. The Court then looks beyond the express language of federal statutes to determine whether Congress has 'occupied the field' in which the state is attempting to regulate, or whether a state law directly conflicts with federal law, or whether enforcement of the state law might frustrate federal purposes. Federal 'occupation of the field' occurs, according to the Court in Pennsylvania v Nelson (1956), when there is 'no room' left for state regulation. Courts are to look to the pervasiveness of the federal scheme of regulation, the federal interest at stake, and the danger of frustration of federal goals in making the determination as to whether a challenged state law can stand."
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!"#$%&'( *+&,-. 87: *original source includes ellipses
Warrant: The states under section 4 were still consistently committing acts of discrimination.
Bravin, Jess. Court Upends Voting Rights Act. Wall Street Journal. 25 June 2013. Web. 4 January 2013. Retrieved from http://online.wsj.com/news/articles/SB10001424127887323469804578521363840 962032
Justice Ruth Bader Ginsburg took the symbolic step of reading her dissent from the bench. "Justices [Stephen] Breyer, [Sonia] Sotomayor, [Elena] Kagan and I are of the view that Congress' decision to renew the act and keep the coverage formula was an altogether rational means to serve the end of achieving what was once the subject of a dream: the equal citizenship stature of all in our polity, a voice to every voter in our democracy undiluted by race," she said. She recalled that the 14th and 15th amendments were ratified after the Civil War to prevent the defeated Confederate states from denying equal rights to freed blacksand gave enforcement authority to Congress. The court said in 1966 that Congress could use "any rational means" to address racial discrimination in voting, and Justice Ginsburg said Tuesday that the evidence lawmakers compiled in 2006 demonstrated that the extension of the law was rational. Between 1982 and 2006, the Justice Department "blocked over 700 voting changes based on a determination that the changes were discriminatory," she wrote. That was enough to show that covered jurisdictions were still targeting minority votersand suggested that the numbers would be worse without the deterrent effect of the preclearance requirement, she said. Justice Ginsburg argued that the intrusion on state sovereignty was limited, because jurisdictions that maintain a clean record for 10 years can apply for exemption from preclearance, a process known as "bailout."
Warrant: This conflicts with the fourteenth and fifteenth amendment, triggering the supremacy clause. !"# %"&'()*+, -*. /0#12, 3)4"'-"5 6789
!"#$%&'( *+&,-. 879
Landmark Legislation: The Civil War and Reconstruction Amendments to the Constitution. United States Senate. Web. 5 January 2013. Retrieved from https://www.senate.gov/artandhistory/history/common/generic/CivilWarAmendm ents.htm.
Fourteenth Amendment Ratified July 9, 1868, the Fourteenth Amendment granted citizenship to all persons 'born or naturalized in the United States,' including former slaves, and provided all citizens with 'equal protection under the laws,' extending the provisions of the Bill of Rights to the states. The amendment authorized the government to punish states that abridged citizens right to vote by proportionally reducing their representation in Congress. It banned those who 'engaged in insurrection' against the United States from holding any civil, military, or elected office without the approval of two-thirds of the House and Senate. The amendment prohibited former Confederate states from repaying war debts and compensating former slave owners for the emancipation of their slaves. Finally, it granted Congress the power to enforce this amendment, a provision that led to the passage of other landmark legislation in the 20th century, including the Civil Rights Act of 1964, and the Voting Rights Act of 1965. Congress required former Confederate states to ratify the Fourteenth Amendment as a condition of regaining federal representation. Fifteenth Amendment As a member of the Senate Committee on the Judiciary, William Stewart of Nevada guided the Fifteenth Amendment through the Senate. Ratified February 3, 1870, the amendment prohibited states from disenfranchising voters 'on account of race, color, or previous condition of servitude.' The amendment left open the possibility, however, that states could institute voter qualifications equally to all races and many former confederate states took advantage of this provision, instituting poll taxes, and literacy tests, among other qualifications. The Reconstruction amendments to the Constitution extended new constitutional protections to blacks, though the struggle to fully achieve equality would continue into the twentieth century. !"# %"&'()*+, -*. /0#12, 3)4"'-"5 6789
!"#$%&'( *+&,-. 87:
Warrant: Congress has always had the power to regulate federal elections, and has been affirmed by the Supreme Court; federalism isnt at issue here.
The Editorial Board. Editorial: The Court: Congress Regulates Federal Elections. New York Times. 17 June 2013. Web. 5 January 2013. Retrieved from http://www.nytimes.com/2013/06/18/opinion/the-court-congress-regulates- federal-elections.html.
The Supreme Court, in a 7-to-2 ruling on Monday, strongly affirmed the power of Congress to regulate Congressional elections. The court held that Arizona cannot impose a requirement on voters to prove their citizenship when the federal law, the National Voter Registration Act of 1993, does not require any such thing. The federal statute, also known as the Motor Voter Act, requires states to 'accept and use' a national voter registration form for federal elections. Voters using the form have to swear, under penalty of perjury, that they are citizens, but they do not have to provide a drivers license, passport or other proof of citizenship. Justice Antonin Scalia, in the majority opinion, wrote that the power of Congress over Congressional elections 'is paramount, and may be exercised at any time.' The 1993 federal law was passed by Congress to remedy the morass of different state laws and regulations that kept some 40 percent of eligible voters from registering. The point was to simplify the process by allowing easy registration when a voter applied for a drivers license or by mailing in the federal form. In 2004, Arizona passed a law, Proposition 200, that directly conflicted with the federal law in an effort to combat voting by undocumented immigrants, though there is scant evidence that there was much fraud to combat. Because of the state law, Arizona rejected the registrations of 31,550 people. Most of those rejected said that they were born in the United States, but many lacked identification. A very high percentage of the rejections were erroneous. Tens of thousands were denied the right to vote under that scheme. Fortunately, the courts majority in Arizona v. Inter Tribal Council of Arizona ruled that the Constitution empowers Congress to reject state regulations on federal !"# %"&'()*+, -*. /0#12, 3)4"'-"5 6789
!"#$%&'( *+&,-. 87: elections. While the decision was emphatic about federal authority over the manner of elections, the Scalia opinion also said that states have power to set the qualifications of voters, like residency requirements, and to enforce them. Justice Scalia wrote that Arizona could still ask the federal agency responsible for administering this federal law to permit the state to require proof of citizenship. And he said that if the agency did not grant the request, the state could ask a federal court to decide that signing the federal form is not enough to ensure that a would-be voter is actually a citizen. In leaving open an avenue for an Arizona challenge, the court also made it clear that ensuring voting rights to every eligible American requires continued vigilance.
Analysis: Basically, the first three pieces of evidence show that because the laws in the states covered by section four were still discriminatory, the fourteenth and fifteenth amendment trumped states rights due to the Supremacy Clause. Even if opponents make the argument that other districts discriminate more, this argument is just saying that yeah those states should be covered too, but that doesnt mean these states should be absolved. Second, the last piece of evidence is saying that because federal elections, which is what is at issue in section, is traditionally governed by congress, federalism was never a concern in the first place. !"# %"&'()*+, -*. /0#12, 3)4"'-"5 6789
Argument: Its necessary for the Supreme Court to interpret the Constitution in order to limit government power; ruling that section four is unconstitutional prevents abuse of government.
Warrant: Judicial Review is expressed in the Constitution as being vital to understanding the Constitution and how to apply it.
Rappaport, Mike. The Constitutional Basis for Judicial Review. Library of Law and Liberty. 24 January 2013. Web. 6 January 2013. Retrieved from http://www.libertylawsite.org/2013/01/24/the-constitutional-basis-for-judicial- review/.
"First, the Supremacy Clause expressly states that a form of judicial review exists: 'This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.' Clearly, this is stating that state court judges must apply the Constitution rather than state statutes. Thus, Graglias apparent claim that judicial review is not expressly in the Constitution is mistaken as to judicial review of state laws, and Graglias essay clearly indicates that he has such judicial review of state laws in mind. But the constitutional text also supports judicial review of federal statutes. This occurs in a number of different ways. First, at the time of the Constitution, constitutions were thought to take priority over statutes. Second, judges would also have a role in determining that a statute conflicted with the constitution (as opposed to the alternative possibility that the Congress would have the exclusive power to make that determination). In the case of state statutes, the Constitution itself recognized that state courts would make the determination that the state statute conflicted with the Constitution (rather than state legislatures !"# %"&'()*+, -*. /0#12, 3)4"'-"5 6789
!"#$%&'( *+&,-. 87: making the determination). So the same rule would make sense as to federal statutes. In addition, the Constitution proclaims itself law, which also suggests that judges should interpret it as they interpret other laws. Further, the Constitution provides that 'This Constitution, and the laws of the United States which shall be made in pursuance thereof . . . shall be the supreme law of the land.' That suggests that only federal statutes consistent with the Constitution are supreme law of the land. This last provision is open to other interpretations, but significantly many people at the time of the framing interpreted it in that way. See footnote 76 of this paper."
Warrant: Judicial Review is key to maintaining limited government with separation of powers.
Rostow, Eugene V. The Democratic Character of Judicial Review. Harvard Law Review. 1 January 1952. Web. 6 January 1952. Retrieved from http://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?article=3158&context=fs s_papers
The power of constitutional review, to be exercised by some part of the government, is implicit in the conception of a written constitution delegating limited powers. A written constitution would promote discord rather than order in society if there were no accepted authority to construe it, at the least in cases of conflicting action by different branches of government or of constitutionally unauthorized governmental action against individuals. The limitation and separation of powers, if they are to survive, require a procedure for independent mediation and construction to reconcile the inevitable disputes over the boundaries of constitutional power which arise in the process of government. British Dominions operating under written constitutions have had to face the task pretty much as we have, and they have solved it in similar ways. Like institutions have developed in other federal systems.
Warrant: Judicial Review is needed to prevent the tyranny of the majority and prevent legislative abuses.
!"# %"&'()*+, -*. /0#12, 3)4"'-"5 6789
!"#$%&'( *+&,-. 87: Dick, Anthony. The Importance of Judicial Review. National Review. 24 June 2013. Web. 5 January 2013. Retrieved from http://www.nationalreview.com/bench- memos/49866/importance-judicial-review/anthony-dick
The perverse effect of disparaging judicial review, of course, is to endorse a Congress whose power is limited only by its own underdeveloped capacity for self- restraint, to paraphrase Justice OConnor. As noted in the Federalist Papers, one of the key accomplishments of the founding was to establish 'the bulwark of a limited Constitution against legislative encroachments.' And its hard to trust that the legislature can be a bulwark against itself. One could argue that legislative abuses are best prevented through popular pressure and democratic accountability, but problems of impulse, public choice, rational voter apathy, and tyranny of the majority pose something of an obstacle to that view, as the reality of our government daily demonstrates.
Warrant: The US Supreme Court in striking down section four, limits the power of the federal government and maintains the power of judicial review.
Gans, David H.. Shelby County V. Holder: Oral Argument Wrap Up. Constitutional Accountability Center. 3 February 2011. Web. 6 January 2013. <http://theusconstitution.org/text-history/2742>.
Yesterday, in a packed courtroom in the federal courthouse in Washington, D.C., District Judge John Bates heard more than three hours of oral argument on the constitutionality of Congress near-unanimous 2006 decision to renew the preclearance provision of the Voting Rights Act, one of the Acts most important and successful provisions. Over the course of the argument in Shelby County v. Holder, the parties debated the meaning of the Fifteenth Amendments guarantee of the right to vote free from racial discrimination, the scope of judicial review of congressional legislation to enforce the Fifteenth Amendment, and the exhaustive record Congress developed in 2005 and 2006 to support renewal of the Acts preclearance provision, !"# %"&'()*+, -*. /0#12, 3)4"'-"5 6789
!"#$%&'( *+&,-. 887 which requires certain jurisdictions with a history of racial discrimination in voting to obtain federal approval before making changes in voting laws or regulations.
Analysis: Basically, the argument here is that judicial review is a vital function of the Supreme Court. This is because the only way for the government to be limited is for some entity to explain what the limits are, based on the Constitution. By having the Supreme Court interpret the Constitution, and define the limits of the authority of Congress, it maintains the autonomy of the states, protects minorities from majority tyranny, and upholds the purpose of the Constitution. Essentially, the only way to limit federal power and maintain state autonomy is by interpreting the limits of the government through the constitution, which is only enabled by Judicial review.
Warrant: Judicial Review has historically been used to expand the power of the federal government and populism due to politics.
Somin, Ilya. The Impact of Judicial Review on American Federalism: Promoting Centralization more than State Autonomy. George Mason University School of Law. 16 August 2013. Web. 6 January 2013. Retrieved from http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2311400.
Although judicial review has limited both federal and state power at different times in American history, it has constrained the states far more. Especially since the late 1930s, federal courts have imposed only modest constraints on the federal government, even as they enforce far greater restrictions on state government autonomy. Today, the courts enforce an extraordinarily wide range of rights against state governments, all of them tending to force the states to adhere to uniform, federally imposed standards. This pattern is not accidental. Judicial action against federal laws is hampered by several important structural constraints. Most importantly, federal judges are appointed by the president and confirmed by the Senate, limiting the extent to which there is likely to be a Supreme Court majority that diverges greatly from the preferences of the federal governments political branches. When the Court substantially deviates from the latters views, it is often brought into line by new judicial appointments. Historically, presidents have usually sought to appoint judges supportive of their partys agenda, which often coincides with that of the majority public opinion. Even when justices wish to restrict federal power, they are careful not to offend majority public opinion and the national political branches too much, since they depend on the latter to enforce their decisions. Congress also has the power to limit the courts appellate jurisdiction, increase (but not decrease) judicial pay, and create new judicial positions to be filled by appointees potentially more amenable to the wishes of the dominant political coalition in the federal government. !"# %"&'()*+, -*. /0#12, 3)4"'-"5 6789
!"#$%&'( *+&,-. 886 Flouting national public opinion can create a damaging political backlash that leads to the Courts defeat. In the most dramatic such case, the Courts efforts to protect slavery in Dred Scott backfired so completely that it helped bring on the early abolition of the institution Chief Justice Taney hoped to defend. While both state and federal officials usually comply with judicial rulings, and the institution of judicial review enjoys broad public support, the justices know that both compliance and support could erode if they make too many unpopular decisions. In some federal systems, efforts to limit federal power are buttressed by the reality that subnational governments are bulwarks for national ethnic minorities that are majorities within a particular region. In the United States, however, the most important national minorities are also minorities within the states. As a result, minority groups usually do not view state governments as their protectors, and American federalism has been historically tainted by its association with racial discrimination against African-Americans. Even state governments often have an interest in promoting expanded federal power because they want more federal subsidies and often also support federal laws that limit economic competition between state governments. NFIB v. Sebelius was thus an unusual case because 28 state governments had filed lawsuits against a major new federal program. Courts face much weaker constraints when they strike down state legislation, especially state laws that are disapproved by national political majorities. In such situations, dissenting states can do little to retaliate against the judges. The federal government and sympathetic state governments elsewhere in the country may even support such judicial intervention.
Warrant: Judicial Review is undemocratic and can perpetuate tyranny of the majority as well; the only difference is that Judicial Review occurs without the consent of people.
Waldron, Jeremy. The Core of the Case Against Judicial Review. Yale Law Review. 23 March 2006. Web. 5 January 2013. Retrieved from http://www.yalelawjournal.org/pdf/115-6/Waldron.pdf.
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!"#$%&'( *+&,-. 88: Let us grant what we acknowledged in Part III, in our discussion of Wollheims paradox. Democratic institutions will sometimes reach and enforce incorrect decisions about rights. This means they will sometimes act tyrannically. But the same is true of any decision process. Courts will sometimes act tyrannically as well. Tyranny, on the definition we are using, is more or less inevitable. It is just a matter of how much tyranny there is likely to be, which was the subject of our discussion in Part IV. Is the tyranny of a political decision aggravated by the fact that it is imposed by a majority? I leave aside the pedantic point that a court may also reach its decision by majority voting. Is tyranny by a popular majority (e.g., a majority of elected representatives, each supported by a majority of his constituents) a particularly egregious form of tyranny? I do not see how it could be. Either we say that tyranny is tyranny irrespective of how (and among whom) the tyrannical decision is made, or we say and this is my viewthat the majoritarian aspect actually mitigates the tyranny, because it indicates that there was at least one non-tyrannical thing about the decision: It was not made in a way that tyrannically excluded certain people from participation as equals. That may seem a little flip, so let me address the question less provocatively. The most commonly expressed misgiving about unrestrained legislative authority is that minorities or individuals may suffer oppression in relation to the majority. They may be oppressed, or discriminated against, or their rights denied and violated compared to those of the majority, or their interests unduly subordinated to those of members of the majority (for example, harmed or neglected in a way that justice condemns). In describing these forms of tyranny, oppression, or injustice, we use the terms majority and minority. But in this particular context they are not necessarily terms related to political decision-processes.
Warrant: Judicial Review enables judicial activism, which allows the Court to be biased and make decisions based on personal opinion.
Slattery, Elizabeth. How to Spot Judicial Activism: Three Recent Examples. Heritage Foundation. 13 June 2013. Web. 6 June 2013. Retrieved from !"# %"&'()*+, -*. /0#12, 3)4"'-"5 6789
Since the late 1930s, the courts have gradually abandoned their proper and essential role under the Constitution to police the structural limits on government and neutrally interpret the laws and constitutional provisions without personal bias. Many judges refuse to interpret the Constitution and statutes according to their original public meaning (or perhaps lack the understanding of how to do so). Instead, they seek to impose their personal preferences. But a judge who looks beyond the text of the Constitution 'looks inside himself and nowhere else.' While the Supreme Court of the United States should interpret the laws and constitutional provisions according to their original public meaning, the lower courtsand state courts when dealing with federal constitutional rightsare bound by the precedents of the Supreme Court. To the extent that a case presents an unresolved question, lower courts should likewise give effect to the original public meaning of the text before them. Although attempts to define 'judicial activism' are often criticized as too broad, too partisan, or simply 'devoid of content,' a simple working definition is that judicial activism occurs when judges fail to apply the Constitution or laws impartially according to their original public meaning, regardless of the outcome, or do not follow binding precedent of a higher court and instead decide the case based on personal preference. The proper measure is not whether a judge votes to uphold or strike down a statute in any given case. Adhering to an original understanding of the law is the only way to consistently 'minimize or eliminate the judges biases.' At times, this means that judges must strike down laws that offend the Constitution. Some scholars mistakenly argue that judges engage in judicial activism whenever they strike down a law, but judges subjective policy preferences could just as easily lead them to uphold unconstitutional laws that they favor as to strike down ones that they oppose. In either situation, judges abdicate their duty of fidelity to the law. Judicial activism is therefore not in the eye of the beholder. In applying the law as it is written, judges may reach conclusions that are (or may be perceived to be) bad policy but are nonetheless correctly decided. Judges are charged not with deciding whether a law leads to good !"# %"&'()*+, -*. /0#12, 3)4"'-"5 6789
!"#$%&'( *+&,-. 88: or bad results, but with whether it violates the Constitution and, if not, how it is properly construed and applied in a given case. Labeling as activist a decision that fails to meet this standard expresses not policy disagreement with the outcome of a case, but disagreement with the judges conception of his or her role in our constitutional system.
Warrant: Judicial Activism undermines the Constitution, because it undermines its power of limiting the government.
Joset, Janelle London. May it Please the Constitution: Judicial Activism and its effect on Criminal Procedure. Marquette Law Review. 1996 Summer. Web. 6 January 2013. Retrieved from http://scholarship.law.marquette.edu/cgi/viewcontent.cgi?article=1555&context= mulr.
In other words, the judge forms a conclusion or has a result in mind, and then reasons backwards .to justify the desired result. Another name for this process is judicial activism. By using judicial activism, a court may reach what it believes to be a 'right' or 'just' result in a particular case. However, the effects of this process on the Constitution and defendant's rights are not so 'right' or 'Just.' The Constitution was written to protect citizen's individual rights and make everyone aware of those rights and the corresponding responsibilities. By altering the meaning of the Constitution to achieve the result the Court wants to reach, neither law enforcement, lower courts, nor the people know the scope of their rights and responsibilities. The Supreme Court must interpret the Constitution, not rewrite it according to the Justices' own agendas or revise it to reach a certain result. Part II of this Comment will focus on the constitutional problems created when the Supreme Court engages in the backward reasoning which constitutes judicial activism, focusing specifically on the area of criminal procedure. This part examines some of the Court's landmark cases and how the Court's judicial activism has undermined the constitutional requirements in the area of criminal procedure. Part III suggests ideas !"# %"&'()*+, -*. /0#12, 3)4"'-"5 6789
!"#$%&'( *+&,-. 88: to correct the problems created by the Court's judicial activism and offers measures to help prevent judicial activism in the future. Part III also discusses ways in which to limit the damage already done by judicial activism.
Analysis: Basically, this is saying that Judicial Review does the opposite of what its supposed to do. It undermines Checks and Balances and Separation of Powers because it allows the Judiciary to take power from the legislative branch. Furthermore, the Supreme Court isnt at all effective at protecting the minority group from tyranny of the majority; this is proven by cases like Korematsu v United States, Dred Scott v Sanford, Kelo v New London, Roe v Wade; the only difference is that when the Supreme Court does it, theres no consent. Further, because of the structure of politics in the US, the Supreme Court and its power of Judicial review prevents to uphold states rights empirically. Basically, its gotten to a point where the Supreme Court is highly political; it no longer simply determines what the Constitution means, and how laws interact with it, but instead uses power to change policy, and the power of judicial review simply furthers these issues. !"# %"&'()*+, -*. /0#12, 3)4"'-"5 6789
!"#$%&'( *+&,-. 88: !;< = <'+.-+). 3#"('0-
Argument: Because conditions in the states covered by section four are no longer among the worst offenders in terms of discrimination, Section four coverage is unwarranted and violates the Constitution by unjustly limiting state autonomy.
Warrant: The coverage formula in section four is based on data thats forty years old.
Liptak, Adam. Supreme Court Invalidates Key Part of Voting Rights Act. New York Times. 25 June 2013. Web. 3 January 2013. Retrieved from http://www.nytimes.com/2013/06/26/us/supreme-court- ruling.html?pagewanted=all
The majority held that the coverage formula in Section 4 of the Voting Rights Act, originally passed in 1965 and most recently updated by Congress in 1975, was unconstitutional. The section determined which states must receive clearance from the Justice Department or a federal court in Washington before they made minor changes to voting procedures, like moving a polling place, or major ones, like redrawing electoral districts. Section 5, which sets out the preclearance requirement, was originally scheduled to expire in five years. Congress repeatedly extended it: for five years in 1970, seven years in 1975, and 25 years in 1982. Congress renewed the act in 2006 after holding extensive hearings on the persistence of racial discrimination at the polls, again extending the preclearance requirement for 25 years. But it relied on data from the 1975 reauthorization to decide which states and localities were covered. The current coverage system, Chief Justice Roberts wrote, is 'based on 40-year-old facts having no logical relationship to the present day.' Congress if it is to divide the states must identify those jurisdictions to be singled out on a basis that makes sense in light of current conditions,' he wrote. 'It cannot simply rely on the past.
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!"#$%&'( *+&,-. 88: Warrant: Currently, many of the states that were affected by Section 4 were able to reverse the trends of voting disparities.
Spakovsky, Hans A. Von. The Voting Rights Act after the Supreme Courts Decision in Shelby County. Heritage Foundation. 18 July 2013. Web. 3 January 2013. Retrieved from http://www.heritage.org/research/testimony/2013/08/the-voting- rights-act-after-the-supreme-courts-decision-in-shelby-county
As an example, in Georgia and Mississippi, which had such high disenfranchisement rates in 1964, black registration actually exceeded white registration in the 2004 election, just two years before Congress was considering the renewal of Section 5. Black registration exceeded white registration by 0.7 percent in Georgia and by 3.8 percent in Mississippi. The Census Bureaus May 2013 report on the 2012 election showed that blacks voted at a higher rate than whites nationally (66.2 percent vs. 64.1 percent). That same report shows that based on Census regional data, black voting rates exceeded those of whites in Virginia, South Carolina, Georgia, Alabama, and Mississippi, which were covered in whole by Section 5, and in North Carolina and Florida, portions of which were covered by Section 5. Louisiana and Texas, which were also covered by Section 5, showed no statistically significant disparity between black and white turnout. Minority registration and turnout are consistently higher in the formerly covered jurisdictions than in the rest of the nation. No one can rationally claim that there is still widespread, official discrimination in any of the covered states, or that there are any marked differences between states such as Georgia, which was covered, and states such as Massachusetts, which was not covered (except that Massachusetts has worse turnout of its minority citizens). As the Supreme Court approvingly noted and as Judge Stephen F. Williams pointed out in his dissent in the District of Columbia Court of Appeals, jurisdictions covered under Section 4 have 'higher black registration and turnout' than noncovered jurisdictions. Covered jurisdictions also 'have far more black officeholders as a proportion of the black population than do uncovered ones.' In a study that looked at lawsuits filed under Section 2 of the VRA, Judge Williams found that !"# %"&'()*+, -*. /0#12, 3)4"'-"5 6789
!"#$%&'( *+&,-. 88: the 'five worst uncovered jurisdictionshave worse records than eight of the covered jurisdictions.' *original source includes ellipses
Warrant: Currently, the coverage formula needs to be changed because many states with high disparities arent covered.
The Formula Behind the Voting Rights Act. 22 June 2013. Web. 3 January 2013. Retrieved from http://www.nytimes.com/interactive/2013/06/23/us/voting-rights- act-map.html?_r=0
During oral arguments, Chief Justice John G. Roberts Jr. noted that Massachusetts, a state that is not covered, had the greatest disparity in registration between whites and blacks, referring to data from 2004. While that data comes with a high margin of error, five states none covered had registration gaps of at least five percentage points in all of the last three elections. !"# %"&'()*+, -*. /0#12, 3)4"'-"5 6789
!"#$%&'( *+&,-. 867
Warrant: Because the states that were covered under Section 4 are no longer clearly discriminating in voting practiecs, Congress no longer has the jurisdiction to violate the autonomy of the states.
Shelby County V. Holder. Oyez Project of the Chicago-Kent College of Law. 2013. Web. 3 January 2013. Retrieved from http://www.oyez.org/cases/2010- 2019/2012/2012_12_96.
Yes, Section 4 of the Voting Rights Act is unconstitutional. Chief Justice John G. Roberts, Jr. delivered the opinion of the 5-4 majority. The Court held that Section 4 of the Voting Rights Act imposes current burdens that are no longer responsive to the current conditions in the voting districts in question. Although the constraints this section places on specific states made sense in the 1960s and 1970s, they do not any !"# %"&'()*+, -*. /0#12, 3)4"'-"5 6789
!"#$%&'( *+&,-. 868 longer and now represent an unconstitutional violation of the power to regulate elections that the Constitution reserves for the states. The Court also held that the formula for determining whether changes to a states voting procedure should be federally reviewed is now outdated and does not reflect the changes that have occurred in the last 50 years in narrowing the voting turnout gap in the states in question. In his concurring opinion, Justice Clarence Thomas argued that Section 5 of the Voting Rights Act is unconstitutional in addition to Section 4. He wrote that the blatant discrimination against certain voters that Section 5 was intended to prohibit is no longer evident. Without such extraordinary circumstances, Congress cannot constitutionally justify placing the burden of Section 5 on the states in question.
Analysis: The argument here is very simple; essentially, the coverage formula of section four no longer accurately targets states with discriminatory voting practices. Thus, Congress no longer has authority to infringe on the autonomy of the states, because the states arent acting to violate the constitution. !"# %"&'()*+, -*. /0#12, 3)4"'-"5 6789
!"#$%&'( *+&,-. 866 %:6 ; <'+.-+). 3#"('0-
Answer: The coverage formula is still accurate, and relevant in todays voting system.
Warrant: The vast majority of states covered under section four are the most prejudiced states in the United States.
The Formula Behind the Voting Rights Act. 22 June 2013. Web. 3 January 2013. Retrieved from http://www.nytimes.com/interactive/2013/06/23/us/voting-rights- act-map.html?_r=0
"Law professors at the University of California, Davis, and the University of Connecticut have created an estimate of prejudice using survey data from 2008. The National Annenberg Election Survey asked people to rank the intelligence, trustworthiness and work effort of different groups of people, on a scale from 0 to 100. Christopher S. Elmendorf and Douglas M. Spencer estimated prejudice based on how people rate their own ethnic group, compared with how they rate blacks. 'It may be argued that Virginia and perhaps South Carolina should not be covered, but the rest of the covered states in the Deep South top the list of the most prejudiced states by anti-black stereotyping,' the professors found. " !"# %"&'()*+, -*. /0#12, 3)4"'-"5 6789
!"#$%&'( *+&,-. 86:
Warrant: Another metric of discrimination, lawsuits settled or prosecuted under section two regarding discrimination, shows that the vast majority of section four states are sued more than most other states.
The Formula Behind the Voting Rights Act. 22 June 2013. Web. 3 January 2013. Retrieved from http://www.nytimes.com/interactive/2013/06/23/us/voting-rights- act-map.html?_r=0
"Some voting discrimination suits, including those with a court-approved settlement, are resolved without a published opinion. Judge David S. Tatel, writing for the majority in the appeals court's decision, found that 'the difference between covered and non-covered jurisdictions becomes even more pronounced,' when including cases settled in favor of minority voters. Critics of this metric, as well as one that includes only published cases, argue that adjusting for population is unfair to small states and that patterns have changed since the data was assembled." !"# %"&'()*+, -*. /0#12, 3)4"'-"5 6789
!"#$%&'( *+&,-. 869
Warrant: The statistics used to support the idea that non-section four states have higher voting disparities is based on faulty statistics.
Silver, Nate. In Supreme Court Debate on Voting Rights Act, a Dubious Use of Statistics. New York Times. 7 March 2013. Web. 3 January 2013. Retrieved from http://fivethirtyeight.blogs.nytimes.com/2013/03/07/in-supreme-court-debate-on- voting-rights-act-a-dubious-use-of-statistics/
"As much as it pleases me to see statistical data introduced in the Supreme Court, the act of citing statistical factoids is not the same thing as drawing sound inferences from them. If I were the lawyer defending the Voting Rights Act, I would have responded with two queries to Chief Justice Roberts. First, are Mississippi and Massachusetts representative of a broader trend: do states covered by Section 5 in fact have higher rates of black turnout on a consistent basis? And second, what if anything does this demonstrate about the efficacy of the Voting Rights Act? One reason to be suspicious of the representativeness of Mississippi and Massachusetts is the high !"# %"&'()*+, -*. /0#12, 3)4"'-"5 6789
!"#$%&'( *+&,-. 86: margin of error associated with these calculations, as noted by Nina Totenberg of NPR. Like other polls, the Current Population Survey is subject to sampling error, a result of collecting data among a random subsample of the population rather than everyone in the state. In states like Massachusetts that have low African-American populations, the margin of error can be especially high: it was plus-or-minus 9.6 percentage points in estimating the black turnout rate in 2004, according to the Census Bureau. Even in Mississippi, which has a larger black population, the margin of error was 5.2 percentage points. As a general matter, I would prefer that everyone be more careful when citing statistical data, and be more explicit about describing the potential sources of error and uncertainty associated with the calculations. But the headline associated with Ms. Totenbergs article at NPR makes a strong claim: it asserts that Chief Justice Roberts has 'misconstrued' the data by ignoring the margin of error."
Warrant: The bail in and bail out provisions of the Voting Rights Act allow the law to be flexible to modern day discrimination.
Persily, Nathaniel and Mann, Thomas. Shelby County v. Holder and the Future of the Voting Rights Act. Governanace Studies and the Brookings Institution. August 2013. Web. 3 January 2013. Retrieved from http://www.brookings.edu/~/media/research/files/papers/2013/08/09%20shelby% 20v%20holder%20policy%20mann/persily_mann_shelby%20county%20v%20ho lder%20policy%20brief_v9.pdf
"More to the point, the dissent would have found the reauthorized VRA constitutional. It emphasized the fact that such reauthorizations of laws previously upheld would likely pass constitutional muster yet again. In such admittedly rare cases, Congress assembled a record for the initial legislation, and it placed a time limit on the legislation itself. The continued success of the initial legislation, which would likely inhibit the development of a record of constitutional violations comparable to the original, should lower the constitutional bar for the reauthorized !"# %"&'()*+, -*. /0#12, 3)4"'-"5 6789
!"#$%&'( *+&,-. 86: version. For the dissent, the success of the law should not be held against it in the constitutional analysis. For the majority, such a position would create a perpetual license for excessive deference well after the original law had outlived its usefulness as a deterrent for unconstitutional action. Finally, whereas the majority considered the coverage formula calcified and outdated, the dissent viewed other aspects of the law as guaranteeing constitutionally relevant flexibility. The law allowed covered jurisdictions to bail out and for courts to bail in uncovered jurisdictions pursuant to a finding of unconstitutional voting discrimination. Both of those provisions were important features for the dissents view that the law as a whole did not sweep so broadly as to be considered irrational."
Analysis: The answer to the argument is pretty simple; basically, using other measures of discrimination show that its still significant in the South. This means that the formula is still relevant, and thus is Section four is warranted. Further, the bail in and bail out provisions show that the bill is flexible; if these states or counties do improve, then they can get out of section four coverage legally; its a flexible law thats still relevant. Lastly, the measurements that say that other states have higher discrimination can be faulty due to error in statitics. !"# %"&'()*+, -*. /0#12, 3)4"'-"5 6789
!"#$%&'( *+&,-. 86: PRO Section 2 Necessary
Argument: Section two provides minority groups with mechanisms to protect their right to vote, meaning that the 14 th and 15 th amendment are protected.
Warrant: Section two is more effective because it covers the entire US, and to any acts of racial vote denial.
The South After Shelby County. Law School at the University of Chicago. October 2013. Web. 4 January 2013. Retrieved from http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2336749
For almost half a century, minority representation in America rested on two legal pillars. The first, Section 2 of the Voting Rights Act (VRA), applies nationwide and prohibits practices that 'result[] in a denial or abridgement of the right . . . to vote on account of race or color.' It is a relatively conventional provision that creates a cause of action for plaintiffs who have been subjected to racial vote dilution or denial. The second, Section 5 of the VRA, applies only to the (mostly southern) jurisdictions specified in Section 4, and bans practices that have the purpose or effect of 'denying or abridging the right to vote on account of race or color.' Despite its almost identical language, Section 5 is a highly unusual provision that prevents covered jurisdictions from implementing any changes to their voting laws unless they first have convinced the Department of Justice (DOJ) or a federal court that the changes will not worsen the electoral position of minority voters. *original source includes ellipses
Warrant: Section two has historically been used to protect voting rights; further, because it can be offensive and not just defensive like section 5, its been effective in actually expanding the rights of minority voters. !"# %"&'()*+, -*. /0#12, 3)4"'-"5 6789
!"#$%&'( *+&,-. 86: The South After Shelby County. Law School at the University of Chicago. October 2013. Web. 4 January 2013. Retrieved from http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2336749
Because it can be used not just defensively but also for offense, Section 2 deserves much of the credit for the growing minority presence in the halls of power in recent years. Following the 1982 amendments to the provision, plaintiffs prevailed in many Section 2 suits throughout the country, usually obtaining as remedies new ability districts. The result of this wave of litigation was 'a quantum increase in minority representation' in the 1990s. In the U.S. House of Representatives, for example, the number of African Americans elected from the South jumped from five to seventeen. In the years since this representational spike, Section 5 has played a vital role in preserving the gains made by minorities. But it was primarily Section 2, not Section 5, that made the gains possible in the first place.
Warrant: Section two has already been upheld by the Supreme Court as protecting the 15 th
amendment.
Section Two of the Voting Rights Act. US Department of Justice. Retrieved from http://www.justice.gov/crt/about/vot/sec_2/about_sec2.php
Section 2 of the Voting Rights Act of 1965 prohibits voting practices or procedures that discriminate on the basis of race, color, or membership in one of the language minority groups identified in Section 4(f)(2) of the Act. Most of the cases arising under Section 2 since its enactment involved challenges to at-large election schemes, but the section's prohibition against discrimination in voting applies nationwide to any voting standard, practice, or procedure that results in the denial or abridgement of the right of any citizen to vote on account of race, color, or membership in a language minority group. Section 2 is permanent and has no expiration date as do certain other provisions of the Voting Rights Act. In 1980, the Supreme Court held that the section, as originally enacted by Congress in 1964, was a restatement of the protections afforded by the 15th !"# %"&'()*+, -*. /0#12, 3)4"'-"5 6789
!"#$%&'( *+&,-. 86: amendment. Mobile v. Bolden, 446 U.S. 55 (1980). Under that standard, a plaintiff had to prove that the standard, practice, or procedure was enacted or maintained, at least in part, by an invidious purpose. In 1982, Congress extended certain provisions of the Act such as Section 5 that were set to expire, and added protections for voters who required assistance in voting. At the same time, it examined the history of litigation under Section 2 since 1965 and concluded that Section 2 should be amended to provide that a plaintiff could establish a violation of the section if the evidence established that, in the context of the 'totality of the circumstance of the local electoral process,' the standard, practice, or procedure being challenged had the result of denying a racial or language minority an equal opportunity to participate in the political process.
Warrant: Section two enables minority groups to prosecute if redistricting undermines their voting power or their ability to vote for their preferred candidate.
Whitaker, L. Paige. Congressional Redistricting and the Voting Rights Act: A Legal Overview. Congressional Research Service. 30 August 2013. Web. 7 January 2013. Retrieved from https://www.fas.org/sgp/crs/misc/R42482.pdf.
Majority-Minority District Requirement Under certain circumstances, the creation of one or more majority-minority districts may be required in a congressional redistricting plan. A majority-minority district is one in which a racial or language minority group comprises a voting majority. The creation of such districts can avoid racial vote dilution by preventing the submergence of minority voters into the majority, which can deny minority voters the opportunity to elect a candidate of their choice. In the landmark decision Thornburg v. Gingles,9 the Supreme Court established a three-prong test that plaintiffs claiming vote dilution under Section 2 must prove: First, the minority group must be able to demonstrate that it is sufficiently large and geographically compact to constitute a majority in a single-member district.... Second, the minority group must be able to show that it is politically cohesive.... Third, the minority must be able to !"# %"&'()*+, -*. /0#12, 3)4"'-"5 6789
!"#$%&'( *+&,-. 8:7 demonstrate that the white majority votes sufficiently as a bloc to enable itin the absence of special circumstances, such as the minority candidate running unopposed usually to defeat the minoritys preferred candidate.10 The Court also discussed how, under Section 2, a violation is established if based on the totality of the circumstances and as a result of the challenged practice or structure plaintiffs do not have an equal opportunity to participate in the political processes and to elect candidates of their choice.11 In order to facilitate determination of the totality of the circumstances the Court listed the following factors, which originated in the legislative history accompanying enactment of Section 2:
*Original Source includes ellipses
Analysis: This argument is basically saying that as long as the 14 th and 15 th amendment have mechanisms that allow equal protection and access to voting to be enforced, than the Shelby ruling is constitutional. Thus, because section allows those two amendments to function because it provides a mechanism to defend the rights of people who are discriminated against because they dont have access to voting, the Shelby ruling is rightly Constitutional, and section four is unconstitutional because it achieves the same goals but at the same time violates state sovereignty.
!"# %"&'()*+, -*. /0#12, 3)4"'-"5 6789
!"#$%&'( *+&,-. 8:8 A/2 - Section 2 Necessary
Answer: Section 2 is likely to be challenged and is less effective than Section 5 because its after the fact, places significant burdens on those prosecuting to pay, and is likely to be challenged.
Warrant: Section 2 is likely to be challenged in court and limited in its power because Republicans oppose it, and feel they have momentum after the Shelby case.
Roth, Zachary. Conservatives prepare to finish off Voting Rights Act. CNBC. 19 July 2013. Web. 4 December 2013. Retrieved from http://www.msnbc.com/msnbc/conservatives-prepare-finish-voting-ri
'Section 2 is a ripe target,' Christopher Elmendorf, a law professor at the University of California, Davis, who has written in depth on the provision, told msnbc. If the court were to strike down or substantially weaken Section 2, the Voting Rights Act would technically still exist, and would retain a few historically important functionsits ban on poll taxes and literacy tests, for instance. But, on top of the demise of Section 5, the most successful civil rights law in the nations history would be all but a dead letter. 'Theres no question that Section 2 and 5 together are really the heart of the law,' Justin Levitt, a professor at Loyola Law School, who testified at Wednesdays Senate hearing on fixing the Voting Rights Act, told msnbc. Unlike Section 5, Section 2which lets victims of racial discrimination file suitis an after-the-fact remedy, making it a less effective tool for stopping race bias in voting. Still, its the strongest protection that the Voting Rights Act has left, and the weeks since the Supreme Courts ruling in Shelby County v. Holder have made clear that Section 2 now figures to play a crucial role in legal efforts to defend voting rights, including in cases against voter ID, cutbacks to early voting, and other Republican-backed voting restrictions. Days after the decision came down, opponents of Texas voter ID law, who last year succeeded in blocking the measure under Section 5, filed a new lawsuit under Section 2. And Attorney General Eric Holder announced Tuesday that in Section 5s !"# %"&'()*+, -*. /0#12, 3)4"'-"5 6789
!"#$%&'( *+&,-. 8:6 absence, the Justice Department would shift resources toward Section 2 cases. The argument against Section 2 is that by banning actions with discriminatory results, not just intent, it goes beyond what the Constitution empowers Congress to do. The 14 th and 15 th Amendments explicitly ban only intentional discrimination. Election lawyers say its unlikely that even the Roberts Court would fully sign onto that view and strike down Section 2 on its face. Much more plausible is that the justices could progressively narrow it by requiring more evidence that intentional discrimination played a role in the action being challenged. Already, voting lawyers say, Section 2 is almost never used without some evidence of an intent to discriminatea local history of discrimination, for instance, or race-based appeals by candidates in an election. Thats why efforts to use Section 2 to bar state laws that disenfranchise felonswhich inarguably hurt racial minorities more than whiteshavent succeeded. And, said William Baude, a professor at Stanford Law School and a former Roberts clerk, its one reason to think that Section 2 also will fail to stop voter ID laws like Texas. But a concerted effort by conservatives could lead to that threshold for evidence of intent being significantly raisedultimately making Section 2 useless for stopping any but the most blatant acts of racial bias.
Warrant: Section 2 is less effective because its expensive and difficult for minority groups to prosecute, and only happens after a harm occurs.
Resolution. American Bar Association. 12-13 August 2013. Web. 3 December 2013. Retrieved from http://www.sfbar.org/forms/newsroom/basf-resolution- aba-voting2013.pdf
Litigating a Section 2 case is also far more expensive and time-consuming than a Section 5 preclearance case, even when the jurisdiction chooses to go to court rather than opting for administrative preclearance, which is by far the cheapest and quickest alternative. In addition, Section 5 also requires covered jurisdictions to inform the Department of Justice of all of their voting changes, to the great benefit of the public. Without this systematic information flow, it will be nearly impossible !"# %"&'()*+, -*. /0#12, 3)4"'-"5 6789
!"#$%&'( *+&,-. 8:: for interested parties to be aware of new laws and procedures at all levels of government until they are implemented, when it is often too late to combat them without deleterious effects on voters and on the electoral process itself. Whether by enacting a new coverage formula under Section 4, strengthening the litigation remedy available under Section 2, or expanding the 'bail-in' provision under Section 3 (or some combination of these concepts), Congress must act to redress the severe blow the Supreme Court dealt voting rights in Shelby County. The ABA should be on record in support of the continuing vitality of the Voting Rights Act, as it has been for many years.
Warrant: Section 2 cant prevent racial gerrymandering, which was only covered under section four.
Stephanopoulos, Nicholas. The South After Shelby County. Law School at the University of Chicago. October 2013. Web. 4 January 2013. Retrieved from http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2336749
Turning next to vote dilution, there also are three major differences between the electoral districts to which Section 2 applies and those protected by Section 5. Section 2 does not extend to bizarrely shaped districts while Section 5 does. Section 2 does not encompass districts that merge highly dissimilar minority communities while Section 5 again does. And Section 2 does not cover districts whose minority voters comprise less than 50 percent of their total population while Section 5 does once more. These differences stem from a series of Supreme Court decisions narrowing the scope of Section 2, and they mean that certain districts that previously were shielded by Section 5 now no longer will enjoy legal protection. Jurisdictions now will 10 have the ability to eliminate districts that are shaped too strangely, that have overly heterogeneous minority populations, or that have minority populations that are too small, to qualify for Section 2 coverage. How many districts fall into these categories? To answer this question, I first identified all of the districts that used to be protected by Section 5 in the nine southern and south western states to which the !"# %"&'()*+, -*. /0#12, 3)4"'-"5 6789
!"#$%&'( *+&,-. 8:9 provision formerly applied in large part or in full. There are 404 congressional and state legislative districts that meet these criteria. Of these, twenty-two are so non- compact that they likely can be dismantled without violating Section 2. This number is small because jurisdictions seem to have learned from the redistricting battles of the 1990s, when the Court struck down several strangely shaped districts. But a much larger number of districts, 146 in total, contain minority populations that are so heterogeneous that Section 2 may not extend to them. The role of such heterogeneity in Section 2 doctrine is not yet settled, but if it is a binding requirement then minority representation in the South could be slashed in the wake of Shelby County. Lastly, only 17 previously covered districts have minority voter proportions below 50 percent. Here too jurisdictions appear to have taken to heart the lessons of earlier Court decisionsand also to have mastered the art of crafting majority-minority districts while simultaneously advancing partisan interests.
Warrant: Section two is statistically less effective than section five at countering discrimination, and with the striking down of section four (which enables section five) minority groups are now at risk of losing gains made previously.
Stephanopoulos, Nicholas. The Future of the Voting Rights Act. Slate. 23 October 2013. Web. 3 January 2013. Retrieved from http://www.slate.com/articles/news_and_politics/jurisprudence/2013/10/section_2 _of_the_voting_rights_act_is_more_effective_than_expected_new_research.html
How effective is Section 2 at protecting minorities voting rights compared with Section 5? Surprisingly, theres not much research out there on this question. To figure out the answer, I analyzed data about all districts in the South and all VRA lawsuits around the country. Heres the gist of what I found: Section 2 is worse than Section 5 at stopping redistricting that breaks up districts in which minority voters are numerous enough to elect their preferred candidates. But its better at blocking voting restrictions than is commonly realized (though not as good as Section 5). My study also suggests ways to amend Section 2 to shore up its weaknesses. The changes Im proposing, I think, !"# %"&'()*+, -*. /0#12, 3)4"'-"5 6789
!"#$%&'( *+&,-. 8:; would be less controversial, and more likely to survive a court challenge, than other suggested responses to the Supreme Courts decision. At argument last winter, Justice Anthony Kennedy remarked that 'its not clear to me that theres that much difference' between Section 2 and Section 5 as to redistricting. It turns out hes wrong. I found that there are actually dozens of districts in the South (both in Congress and in state legislatures) that Section 5 used to protect, but that states can now eliminate without violating Section 2. Thats because Section 5 used to insulate all districts in which minorities can elect their preferred candidates from any major changes. Section 2, on the other hand, doesnt apply to districts that are strangely shaped or whose minority populations fall below 50 percent or are too socioeconomically varied. These kinds of districts can now be dismantled with impunity. In all, there are 167 districts across the South that used to be protected by Section 5 but that are now in jeopardy. Looking state by state, Georgia and Texas lead the pack with about three dozen newly vulnerable districts each. If all of these districts were replaced with ones in which minorities no longer had the electoral power to elect their preferred candidates, as is now possible, many of the gains that blacks and Hispanics have made in recent years would disappear. Wed be back in a world in which successful minority politicians were a rarity.
Analysis: These argument, simply said, are just saying that section two is not as effective as section four was. It places significant burdens because the harm has to happen before prosecution can happen, and it forces people who have been discriminated against, racial minorities most often, to pay for their own case, shifting the burden away from the government, who has significantly more resources. Basically, the argument is that this isnt enough to uphold the burden provided by the 14 th and 15 th amendment of equal protection and access to voting. !"# %"&'()*+, -*. /0#12, 3)4"'-"5 6789
Argument: Section 3 is unaddressed by Shelby County v. Holder and is actually the section that most consistently addresses cases of voter disenfranchisement.
Warrant: Section 3 of the Voting Rights Act was put in place to be able to target pockets of discrimination that exist within the country and not covered by the original Section 4. Section 3 is critical to the continuation of fighting discrimination. Because Section 3 is included, 15 th
Amendment violations will not increase as a result of the case ruling.
Crum, Travis. "The Voting Rights Act's Secret Weapon: Pocket Trigger Litigation and Dynamic Preclearance." Yale Law Journal. 119.1992 (2010): 1994-2038. Web. 3 Jan. 2014. < http://www.yalelawjournal.org/the-yale-law-journal/note/the-voting-rights- act's-secret-weapon:-pocket-trigger-litigation-and-dynamic-preclearance/>
Commonly called the bail-in mechanism or the pocket trigger, section 3 authorizes federal courts to place states and political subdivisions that have violated the Fourteenth or Fifteenth Amendments under preclearance. Using this remedial provision, the Department of Justice (DOJ) and civil rights groups can redefine the preclearance regime through litigation. Designed to trigger coverage in pockets of discrimination missed by section 5s formula, section 3 was included in the original Voting Rights Act.
Analysis: This is a goldmine for Pro teams who wish to deviate slightly from the stock Constitutional debate that will be the norm in this topic. This instead discusses a little-known section of the Voting Rights Act, Section 3. Section 3 allows for preclearance to be achieved on a case-by-case basis with none of the constitutional problems that arise from section 4s formula. This is excellent for substantiating the stock arguments of constitutionality and allowing pro teams to address concerns about increased 15 th Amendment violations raised by con teams.
!"# %"&'()*+, -*. /0#12, 3)4"'-"5 6789
!"#$%&'( *+&,-. 8:; Argument: The pocket trigger can more accurately target instances of voter disenfranchisement, and thus continue the protection of Constitutional right to vote.
Warrant: The pocket trigger is in fact a much better avenue for the protection of voters and the prevention of voter disenfranchisement because it is dynamic and does not trap states inside of the formula. This means that 14 th Amendment violations are actually less of a concern as a result of the court ruling.
Crum, Travis. "The Voting Rights Act's Secret Weapon: Pocket Trigger Litigation and Dynamic Preclearance." Yale Law Journal. 119.1992 (2010): 1994-2038. Web. 3 Jan. 2014. < http://www.yalelawjournal.org/the-yale-law-journal/note/the-voting- rights- act's-secret-weapon:-pocket-trigger-litigation-and-dynamic-preclearance/>
The pocket trigger replaces a static preclearance regime with a dynamic one. In its youth, the coverage formula was defined by revision and experimentation. The 1970 and 1975 reauthorizations modified the coverage formulas two proxies for discrimination by updating election dates and adding protections for language minorities. The original bailout process was used more frequently, given that it permitted a covered jurisdiction to bail out through a showing that it had not used an unlawful test or device. Frozen in time since 1975, the contemporary coverage formula fights yesterdays problems. Through iterative litigation, the pocket trigger can establish a dynamic preclearance regime, targeting todays constitutional violators. Indeed, the pocket trigger enhances the Acts impact, creating additional incentives to bring suit. And by transferring coverage determinations from Congress to the courts, the pocket trigger empowers minority communities to bargain with and target those jurisdictions they determine should be bailed-in.
%*-05,<,= This piece of evidence perfectly explains why Section 3 is actually a much better avenue for attempting to rectify violations of voting rights than Section 4. It allows for lawsuits against areas of the country that have actually committed voter disenfranchisement, instead of !"# %"&'()*+, -*. /0#12, 3)4"'-"5 6789
!"#$%&'( *+&,-. 8:; just a general blanket enforcement of preclearance. This is good for Pro teams who can argue that voter disenfranchisement can still be preempted even if Section 4 is invalidated. Argument: Section 3 has no constitutional concerns because complaints are sent to the court instead of the DOJ or other independent regulatory bodies, thus mitigating the fear of 15 th and 14 th Amendment violations.
Warrant: Section 3 allows for the inclusion of districts instead of entire states and therefore is much more likely to satisfy concerns about constitutionality and more effectively address instances of voter disenfranchisement, so the 15 th Amendment can be protected while still ensuring adherence to principle of federalism.
Ellement, Michael. "Preclearance Without Statutory Change: Bail-In Suits Post-Shelby County." Yale Law & Policy Review. InterAlia, 7 Sep 2013. Web. 3 Jan 2014. <http://ylpr.yale.edu/inter_alia/preclearance-without-statutory-change-bail-suits- post-shelby-county>
The 3 bail-in provision does not rely on the 4 formula, or any other legislative calculation. Rather, jurisdictions become subject to preclearance under 3 upon an individualized determination by a court, and only after the jurisdiction has been found in violation of the Fourteenth or Fifteenth Amendment. In this way, the 3 bail-in process is more likely to satisfy constitutional concerns. A jurisdiction bailed in via 3 can hardly complain it is not being treated equally by the federal government, since it will have had an opportunity to independently litigate before a neutral arbiter whether it should be subject to preclearance. Further, if a jurisdiction is bailed in, its future voting changes will be submitted to the court imposing preclearance. This too is different than 5, where jurisdictions were forced to choose between the Department of Justice (DOJ) and the District of Columbia District Court. The choice between submitting changes to two different federal decision makers, both located in the District of Columbia, has been a point of contention since 5s enactment. The ability of states to litigate their 3 preclearance requests in the federal court located in their state cures this concern. !"# %"&'()*+, -*. /0#12, 3)4"'-"5 6789
!"#$%&'( *+&,-. 8:;
Analysis: This evidence is excellent for indicating why precisely Section 3 is so distinctly better than Section 5 for targeting instances of voter disenfranchisement. Ellement explains why 1) Section 3 is less likely to violate Constitutionality but also 2) that Section 3 more effectively targets the areas where voter disenfranchisement occurs.
Argument: Section 3 has worked in the past to bring in new states to preclearance and can continue to work in the future with the invalidation of Section 4.
Warrant: Section 3, because it has worked in the past, can continue to work in the future particularly because Section 5 is still left in place by the Supreme Court decision.
Denniston, Lyle. "Opinion Recap: Voting Law in Deep Peril." SCOTUSblog. Bloomberg Law, 25 Jun 2013. Web. 3 Jan 2014. <http://www.scotusblog.com/2013/06/opinion-recap-voting-law-in-deep-peril/>
There is another provision of the law, potentially a back-up (Section 3), that allows the government to go to court to ask that a new state or local government be put under Section 5 because of its more recent history in dealing with minority voters. Two states have been brought under Section 5 that way Arkansas and New Mexico along with several county governments, including Los Angeles County in California. The Courts main opinion did not even mention Section 3, but the dissenters referred to it briefly as a bail-in mechanism that has worked. If a challenger now seeks to employ that provision, it presumably will have to show that bias is still a present-day problem there.
%*-05,<,= This is perfect evidence for Pro teams to prove that Section 3 has actually worked in the past. Now, not only can pro teams argue that section 3 has the potential to replace Section 4, but that it actually already has replaced Section 4 in many instances with none of the constitutional problems.
Answer: Section 3 could be effective, but is not because of the high burden of proof placed on appellants to prove that their right to vote is violated.
Warrant: It is incredibly difficult to prove that voting laws are passed with the intention of being racist, and that is what Section 3 of the Act requires appellants to prove. This is much more difficult than Section 5 which only requires that a change to voting law have racist effects.
Serwer, Adam. "The Secret Weapon to Save the Voting Rights Act." MSNBC., 02 Oct 2013. Web. 3 Jan 2014. <http://www.msnbc.com/politicsnation/the-secret- weapon-could-save-the-voting>
That high standard of proof is also part of what limits the effectiveness of Section 3 as a replacement for Section 4. To impose preclearance on a jurisdiction not covered by the now-defunct Section 4 formula, you have to prove that officials intended to discriminate. Under the old formula, all that had to be proven was that the election law changes would have discriminatory effectsprecisely because most people are smart enough to hide when theyre deliberately trying to discriminate. In Texas, state officials werent that smart. Nevertheless, the requirement that deliberate discrimination be proven means that it will be very difficult to subject states that try to disenfranchise minority voters to preclearance, because all they need is a superficial race-neutral reason for making the change. What youre likely to see in states where these actions are brought is states trying to avoid an adverse Section 3 ruling by saying, our real intent here is to hurt Democrats. Since thats our intent, thats not a racial intent and thats not forbidden by the Constitution, says Brenda Wright, a legal expert with liberal think tank Demos. Judges might not subject jurisdictions to preclearance even if deliberate discrimination is proven, or they might do so only in areas related to the discriminatory policy.
!"# %"&'()*+, -*. /0#12, 3)4"'-"5 6789
!"#$%&'( *+&,-. 898 Analysis: This is actually a very good answer to Pro teams who try to claim that Section 3 can act as a replacement for Section 4. Having productive debate about the use of Section 3 requires nuanced argumentation on the part of both teams. To adequately respond to claims that Section 3 can function effectively, you have to have a good understanding of how laws function, and this particular law functions by proving that lawmakers intend to discriminate, which is near impossible to prove.
Answer: It is much more difficult to suit under Section 3 than it is to suit under Section 4.
Warrant: Any lawsuits brought to courts must prove substantial intention to discriminate on the part of the individuals who passed the law in the first place, which is often incredibly difficult to determine. Additionally, federal judges may feel like they do not want to infringe upon local elections.
Ellement, Michael. "Preclearance Without Statutory Change: Bail-In Suits Post-Shelby County." Yale Law & Policy Review. InterAlia, 7 Sep 2013. Web. 3 Jan 2014. <http://ylpr.yale.edu/inter_alia/preclearance-without-statutory-change-bail-suits- post-shelby-county>
There are still a number of hurdles to increased 3 litigation post-Shelby County. The most significant is establishing a violation of the Fourteenth or Fifteenth Amendment. For 3 to apply, it is insufficient that a jurisdiction be found to have violated the VRA or another voting rights statute. Rather, a specific finding must be made that the jurisdiction violated the Constitution. This is a demanding requirement, and will likely necessitate proof that a jurisdiction intended to discriminate on the basis of race. The 3 process is also at the mercy of the federal judiciary. Litigants will have to convince a federal judge not only that a violation has occurred, but also that the court should require the jurisdiction to submit future voting changes to the court. Again, this is a challenging burden for litigants, since some judges will prefer to stay out of state political affairs.
!"# %"&'()*+, -*. /0#12, 3)4"'-"5 6789
!"#$%&'( *+&,-. 896 Analysis: This evidence once again proves just how difficult it will be for litigants to bring suit against legislatures that pass laws with discriminatory effects. Now the litigants must adequately prove that the legislature that passed the law passed it not only knowing that it might have discriminatory outcome, but wanting it to have discriminatory outcomes. This means that litigants will have a very difficult time proving discrimination.
Answer: Section 3 of the Voting Rights Act leaves much of the preclearance up to the discretion of the judiciary to which the suit is brought.
Warrant: The text of the Voting Rights Act lays out no specific requirements for the counties that violate their citizens right to vote. Thus, this is left up to the discretion of the judiciary who may not be willing to interfere.
"Voting Rights Act of 1965. (PL 89-110, 6 Aug. 1965). Web. <http://www.gpo.gov/fdsys/pkg/STATUTE-79/pdf/STATUTE-79-Pg437.pdf>
If in any proceeding instituted by the Attorney General under any statute to enforce the guarantees of the fifteenth amendment in any State or political subdivision the court finds that violations of the fifteenth amendment justifying equitable relief have occurred within the territory of such State or political subdivision, the court, in addition to such relief as it may grant, shall retain jurisdiction for such period as it may deem appropriate and during such period no voting qualification or prerequisite to voting, or standard, practice, or procedure with respect to voting different from that in force or effect at the time the proceeding was commenced shall be enforced unless and until the court finds that such qualification, prerequisite, standard, practice, or procedure does not have the purpose and will not have the effect of denying or abridging the right to vote on account of race or color.
Analysis: The text of the Voting Rights Act itself is indicative of how discretionary the enforcement of preclearance is under Section 3. The judiciary can determine whatever is suitable !"# %"&'()*+, -*. /0#12, 3)4"'-"5 6789
!"#$%&'( *+&,-. 89: for preclearance and if they deem that a law did not have discriminatory intentions then the judiciary can easily say that they do not need to enforce preclearance. This is an excellent answer to pro teams who are arguing that Section 3 is a good replacement for Section 4, particularly because con teams can cite the text of the Voting Rights Act itself. !"# %"&'()*+, -*. /0#12, 3)4"'-"5 6789
Argument: Section 5 remains and thus allows Congress to pass a new formula that can consistently protect 15 th Amendment rights.
Warrant: Section 5 is left in place so Congress can pass a new formula so long as it is responsive to current instances of voting discrimination. This means that Congress can pass a law thats actually accurate and looks at instances of voter fraud that are occurring in the modern United States, and not instances that occurred 40 years ago.
Shelby County v. Holder. 570 U.S. 679. Supreme Court of the United States. 2013. Web. 4 Jan. 2014. < http://www.supremecourt.gov/opinions/12pdf/12-96_6k47.pdf?>
The Government has a fallback argument- because the formula was relevant in 1965, its continued use is permissible so long as any discrimination remains in the States identified in 1965. But this does not look to current political condition, Northwest Austin, supra, at 203, instead relying on a comparison between the states in 1965. But history did not end in 1965. In assessing the current need[] for a preclearance system treating States differently from one another today, history since 1965 cannot be ignored. The Fifteenth Amendment is not designed to punish for the past; its purpose is to ensure a better future. To serve that purpose, Congress-if it is to divide the States-must identify those jurisdictions to be singled out on a basis that makes sense in light of current conditions.
%*-05,>,D This Supreme Court decision shows that the part of the Voting Rights Act Roberts finds unconstitutional is not the preclearance requirement, but the antiquity of the formula itself. He also states that Congress can identify jurisdictions, but those jurisdictions must make sense in light of historical changes. This evidence is key for teams to show that while the formula was invalidated, a new formula can be created if Congress desires to, and the Supreme Court decision itself argues that Congress can create a new formula. So essentially Pro teams can show that !"# %"&'()*+, -*. /0#12, 3)4"'-"5 6789
!"#$%&'( *+&,-. 89: concerns about 15 th Amendment violations are not relevant in the round because the court ruling still allows for the protection of 15 th Amendment rights. Remember that Supreme Court justices make decisions on a basis of effects of decisions as well, and one of the major arguments from the dissenting justices was the increase of 14 th and 15 th Amendment violations. A way Pro teams can argue that these do not specifically matter in this round is by arguing that these violations will not increase because of other sections of the VRA, thus these are not particularly impactful.
Warrant: The preclearance formula was not updated for 50 years, so if Congress wants to allow preclearance, it must update the formula accordingly. Basically, there are 15 th Amendment violations going on in states that arent covered by the current formula, which means that the citizens in those states are unequally not having their rights protected. So if Congress wants to adequately protect the rights of its citizens, they must pass laws that do so.
Weiss, Debra. "SCOTUS Leaves Intact Preclearance Requirement in Voting Rights Act, Strikes Down Formula." ABA Journal 25 Jun 2013. Web. 2 Jan. 2014. < http://www.abajournal.com/news/article/scotus_leaves_intact_preclearance_requi rement_in_voting_rights_act_strikes_/>
The court did not rule on Section 5, the provision that requires state and local government entities with a history of discrimination to get federal approval of changes to their voting laws. Roberts also stressed that the ruling did not affect Section 2, the permanent, nationwide ban on on racial discrimination in voting. Roberts said that Sections 4 and 5 of the Voting Rights Act, passed in 1965, were strong medicine intended to address entrenched racial discrimination in voting. The preclearance conditions were originally set to expire in five years, but nearly 50 years later, they are still in effect, Roberts said. "Our country has changed," Roberts said, "and !"# %"&'()*+, -*. /0#12, 3)4"'-"5 6789
!"#$%&'( *+&,-. 89: while any racial discrimination in voting is too much, Congress must ensure that the legislation it passes to remedy that problem speaks to current conditions."
%*-05,;,< This evidence is key to show why the formula that the Supreme Court invalidated could not possibly have been responsive to current needs. It was written over 50 years ago and was supposed to expire a mere 5 years later but Congress kept extending it without adequately revising or looking at where voting violations were actually taking place. Roberts stresses here that Congress can have preclearance, but it must be districts that actually have voting discrimination occurring.
Warrant: The preclearance formula is outdated and can be updated to suit current needs because Section 5 is still in place. The justices in the majority opinion even explicitly say that there needs to be a new formula passed by Congress to protect 15 th Amendment rights.
Liptak, Adam. "Supreme Court Invalidates Key Part of Voting Rights Act." New York Times 25 Jun 2013, A1. Web. 2 Jan. 2014. <http://www.nytimes.com/2013/06/26/us/supreme-court- ruling.html?pagewanted=all&_r=0>
Section 5, which sets out the preclearance requirement, was originally scheduled to expire in five years. Congress repeatedly extended it: for five years in 1970, seven years in 1975, and 25 years in 1982. Congress renewed the act in 2006 after holding extensive hearings on the persistence of racial discrimination at the polls, again extending the preclearance requirement for 25 years. But it relied on data from the 1975 reauthorization to decide which states and localities were covered. The current coverage system, Chief Justice Roberts wrote, is based on 40-year-old facts having no logical relationship to the present day. Congress if it is to divide the states must identify those jurisdictions to be singled out on a basis that makes sense in light of current conditions, he wrote. It cannot simply rely on the past. The decision did not !"# %"&'()*+, -*. /0#12, 3)4"'-"5 6789
!"#$%&'( *+&,-. 89: strike down Section 5, but without Section 4, the later section is without significance unless Congress passes a new bill for determining which states would be covered.
%*-05,;,< The last time the coverage formula of the VRA was updated was 1975. Teams need to stress this because it shows just how unresponsive the coverage formula is to changes in demographic makeup or voting behavior. Congress may pass a new bill, and probably even should pass a new bill, revising the coverage formula. Use this evidence to show that 15 th
Amendment violations will not occur as a result of the passage of the ruling.
Warrant: The process of preclearance is left in place by the Court, it is merely the determination of which states and jurisdictions must go through the process of preclearance that was struck down. Basically, the Court says that it is acceptable to discriminate between states and select certain states that must go through preclearance, but the states selected have to actually have instances of voter discrimination.
Brandeisky, Kara, and Mike Tigas. "Everything That's Happened Since Supreme Court Ruled on the Voting Rights Act." Journalism in the Public Interest. ProPublica, 1 Nov 2013. Web. 3 Jan 2014. < http://www.propublica.org/article/voting- rights-by-state-map>
One important technical point: the Supreme Court actually left Section 5 of the Voting Rights Act the part of the law that describes how preclearance works intact. Instead, the Court struck down Section 4, which explains which states and localities are subject to preclearance. If Congress amends Section 4, the Justice Department can start enforcing Section 5 again.
Analysis: This piece of evidence is key to show that it is not the notion of preclearance itself that was invalidated by the Supreme Court, but the states that had to go through the process of preclearance. Pro teams should use this piece of evidence to show that it is clear that once Congress passes a new formula, states can then begin going through preclearance once more. !"# %"&'()*+, -*. /0#12, 3)4"'-"5 6789
Answer: Congress will not pass a new formula because of a divided Congress.
Warrant: There is simply too much disagreement in Congress right now to get much of anything done, particularly passing a contentious bill that seeks to isolate states that discriminate against their own citizens. This type of bill would be very unlikely to be passed.
Cillizza, Chris. "What the Supreme Court's Voting Rights Act Decision Means for Politics." Washington Post 25 Jun 2013. Web. 3 Jan. 2014. < http://www.washingtonpost.com/blogs/the-fix/wp/2013/06/25/what-the-voting- rights-act-decision-means-for-politics/>
With no Section 4 -- the Court asked Congress to determine a new formula -- there is no section 5, according to a Democratic election lawyer who was granted anonymity to speak candidly. Unless Congress creates a new coverage formula, Section 5 is not in force, said the source. In essence, the Court said that the Justice Department still has the right to approve of line-drawing under the VRA but by invalidating the formula for determining what states/counties are subject to the VRA they made that power moot. Given Congress' inability to do, well, anything, the idea that they would wade into this incredibly contentious issue at any point in the near future seems unlikely.
Analysis: It is extremely important for Con teams to say that while perhaps Congress still has the ability to pass a new formula, they will not actually pass a new formula. The divisiveness in Congress is such that there is very little political will to pass a revised formula for Section 4. As such, Pro teams cannot make the argument that Congress will in fact pass a revised formula.
Answer: The Supreme Court likely will not allow a new formula of Section 4b to pass.
!"# %"&'()*+, -*. /0#12, 3)4"'-"5 6789
!"#$%&'( *+&,-. 89: Warrant: Even if Congress managed to pass a new version of the formula, the Supreme Court will likely still strike down the revised formula. This is especially indicated by Clarence Thomass identification of certain parts of precedent that identify ways in which the Court would be justified in striking down a new formula.
Totenberg, Nina. "Supreme Court: Congress Has To Fix Broken Voting Rights Act." National Public Radio, 25 Jun 2013. Web. 3 Jan 2014. < http://www.npr.org/2013/06/25/195599353/supreme-court-up-to-congress-to-fix- voting-rights-act>
Roberts noted that the court had clearly signaled this problem four years ago, when it avoided a constitutional ruling on the voting rights law. In essence, he said that the court had warned Congress it was time to update the coverage formula, and Congress did nothing. He also noted that Congress is still free to design a new and modernized coverage formula - something that it has not done in the past largely because it was politically impossible. No new jurisdictions wants to be labeled a bad actor under a new formula. And leaders of both parties said repeatedly in 2006 that the laws existing system worked well. Justice Roberts opinion on Tuesday were Justices Anthony Kennedy, Samuel Alito, Antonin Scalia and Clarence Thomas. Thomas wrote separately to say that he would have struck down more than the coverage formula. He would have invalidated the concept of pre-clearance as unconstitutional, too, and he pointed to language in the chief justices opinion that would allow the court to invalidate the pre-clearance provision even if the coverage formula is rewritten.
Analysis: Even if Congress somehow gains the political will to pass a revision of the formula, the new formula would probably still be struck down by the Supreme Court. Con teams should use the evidence, especially Thomass decision, which details that the Supreme Court could still have justification for not allowing a new preclearance formula. This is an excellent answer if Pro teams manage to argue that Congress does have the ability to pass a new formula. Even if Congress does, the Supreme Court will still likely invalidate the formula.
!"# %"&'()*+, -*. /0#12, 3)4"'-"5 6789
!"#$%&'( *+&,-. 8:7 Answer: Republicans will not allow a new formula to pass the House. Warrant: With the Houses current make-up, Republican representatives would likely block legislation attempting to create a new VRA formula. This is partly because the formula would likely target Republican states because many of the states in a new formula would be from the South. Without Republican support for the bill, a new formula is unlikely to appear.
Weiner, Rachel. "A New VRA Formula? Don't Hold Your Breath." Washington Post 25 Jun 2013. Web. 3 Jan. 2014. < http://www.washingtonpost.com/blogs/the- fix/wp/2013/06/25/a-new-vra-map-dont-hold-your-breath/>
If Section 5 of the Voting Rights Act is to survive, Congress must save it. That's the message Tuesday from the Supreme Court, which struck down the formula used to decide which parts of the country need preclearance from the Justice Department to change election practices. Congress may draft another formula based on current conditions, Chief Justice Roberts wrote. How likely is that? Not very. Just ask Sen. Chuck Schumer (D-N.Y.), who sits on the Senate Judiciary Committee. "As long as Republicans have a majority in the House and Democrats don't have 60 votes in the Senate, there will be no preclearance," he said in a statement. Section 5 was reauthorized back in 2006 -- when Republicans controlled the House, the Senate, and the presidency. It passed the Senate unanimously and the House by a huge margin. And until the decision, Republicans largely avoided weighing in on the Supreme Court fight.
Analysis: This evidence is key to explaining why precisely a new Voting Rights Act will not pass Congress. Con teams need to specify that there is very little cooperation in Congress and because of this a new formula is very unlikely to be passed. There is so much opposition to singling out states as violative of minority voting rights that most Congressmen will not support a new formula.
Answer: Supreme Court justices are skeptical of a new formula passing Congress, particularly with recent changes of House make-up.
!"# %"&'()*+, -*. /0#12, 3)4"'-"5 6789
!"#$%&'( *+&,-. 8:8 Warrant: Justice Ginsberg advocated that Congress would not be likely to pass a new formula, especially because of recent political deadlock. One of the main reasons Ginsberg supported Section 4 in the first place was because she felt it adequately protected 15 th Amendment rights, something which are not protected in the absence of Section 4.
George, Rachel. "Voting Rights Act: Can Congress Come Up with a "New Formula" to Protect Voters." PolicyMic., 27 Jun 2013. Web. 3 Jan 2014. < http://www.policymic.com/articles/51629/voting-rights-act-can-congress-come- up-with-a-new-formula-to-protect-voters>
The fear remains, however, that Congress will be politically incapable of protecting minorities in a followup in what Yale Law professor Heather Gerken labels a political "nonstarter." And, even if some compromise was eventually reached, there would undoubtedly be a delay in protecting citizens, as well as a "moving target" problem where demographic and social issues will always remain in flux over time. Justice Ginsburg was quick to point out in her dissent on Tuesday that Congress indeed held numerous hearings in 2006 to reconsider the existing coverage formula without encountering any significant changes, adding to skepticism the Congress is poised to create a fair "new formula" today. Unfortunately, any "new formula" will no doubt be played out in the political ring with more of an eye for 2016 than for protecting the rights of minorities. Today's notoriously gridlocked Congress would of course face giant roadblocks to any maneuvers that could have major implications for party aspirations in contentious districts across the country.
Analysis: Justice Ginsberg along with other political analysts expressed skepticism over Congresss ability to reach any type of consensus to pass a new formula. Both the Supreme Court justice who authored the dissent and members of the Yale Law Journal agree that Congress is extraordinarily unlikely to be able to pass a formula that adequately addresses the needs of the nation. This is essential for Con teams to prove that a new formula will not arise. Additionally, Ginsburg tells us that the result of getting rid of Section 4b, increased violations of voter rights will occur. !"# %"&'()*+, -*. /0#12, 3)4"'-"5 6789
Argument: The Court has upheld in many cases the principle of equal sovereignty between the States under the application of laws.
Warrant: In the case of Northwest Austin that preceded Shelby County the principle of equal sovereignty between the states was upheld. Because the Voting Rights Act only applied to nine states, it did not equally apply the laws to the states, meaning as a matter of precedence the Supreme Court was correct in deciding Shelby County.
Shelby County v. Holder. Supreme Court of the United States. 2013. Web. Jan 6 2014. < http://www.supremecourt.gov/opinions/12pdf/12-96_6k47.pdf>
And despite the tradition of equal sovereignty, the Act applies to only nine States (and several additional counties). While one State waits months or years and expends funds to implement a validly enacted law, its neighbor can typically put the same law into effect immediately, through the normal legislative process. Even if a noncovered jurisdiction is sued, there are important differences between those proceedings and preclearance proceedings; the preclearance proceeding not only switches the burden of proof to the supplicant jurisdiction, but also applies substantive standards quite different from those governing the rest of the nation.
Analysis: This proves that the states need to be treated equally as a matter of equal sovereignty because equal sovereignty is a valued judicial precedence. States cannot be unequally covered by certain laws because it means that there is unequal application of the laws. Thus certain states are favored over other states.
Warrant: Section 4 puts certain states into unequal positions with their neighbors, upsetting the principle of equal federalism between the states.
!"# %"&'()*+, -*. /0#12, 3)4"'-"5 6789
!"#$%&'( *+&,-. 8:; "Shelby County v. Holder." Legal Information Institute. Cornell University Law Library, 27 Feb 2013. Web. 6 Jan 2014. <http://www.law.cornell.edu/supct/cert/12-96>
Another concern shared by many of Shelby Countys amici is that the VRA impinges on federalism and state sovereignty with regard to elections. In particular, the amici point to the supervisory power historically granted to states over their own state elections. While the amici admit that this power is not absolute, they find that the unequal restrictions placed on certain states under the VRA is an infringement on state sovereignty and puts those states on unequal footing from their neighbors, raising federalism concerns.
Analysis: This evidence is key for teams attempting to illustrate how the principle of equal sovereignty means that certain states should not be unfairly separated from their neighbors in terms of their ability to decide and run their own elections. States need the ability to be able to be decisive over the running and operation of their own elections.
Warrant: Federalism argues that the power to regulate elections lies with the states, as established in previous cases. Additionally, equal protection establishes that states must be subject to similar coverage by laws.
Pilon, Roger. "Equal Protection." Cato Supreme Court Review. CATO Institute, 2013. Web. 3 Jan 2014. < http://object.cato.org/sites/cato.org/files/serials/files/supreme- court-review/2013/9/foreword.pdf>
As Chief Justice John Roberts demonstrated, writing for the Courts majority, the covered jurisdictions today, if anything, have better voting records concerning minorities than the jurisdictions not subject to the requirements. Because section 4 has not been updated in more than 40 years, the Court held it unconstitutional, effectively rendering section 5 unenforceable unless Congress updates the coverage formula (which is not likely at this point in time). Thus, the equal protection issue here turns out to be straightforward. As the Court held six years ago in Northwest Austin v. Holder, the !"# %"&'()*+, -*. /0#12, 3)4"'-"5 6789
!"#$%&'( *+&,-. 8:9 Voting Rights Act imposes current burdens and must be justified by current needs. Because current needs no longer justify the laws extraordinary measures, the Court held that it could no longer tolerate a situation whereby one State waits months or years and expends funds to implement a validly enacted law, [while] its neighbor can typically put the same law into effect immediately.
Analysis: The states that were covered could only be covered because they were especially violative of the voting rights of the individuals who inhabited those states. However, these states now have higher rates of minority voting than their neighbors who are not covered by the formula. As such, the precedence for violating the principle of equal sovereignty in these instances is no longer justified.
Warrant: There has been a long history of the Court deciding that states should be treated equally, and afforded the dignity that is allocated to them in the Constitution. The Constitution and its principles of federalism are that each state should be granted a certain degree of autonomy and independence from federal law.
Fishkin, Joseph. "The Dignity of the South." The Yale Law Journal. Yale Law School, 08 Jun 2013. Web. 6 Jan 2014. < http://yalelawjournal.org/the-yale-law-journal- pocket-part/election-law/the-dignity-of-the-south/>
This argument from the equal dignity of the states is both more and less novel than it might seem. The idea that states have dignity, and that this dignity has some constitutional forcealthough not, to be sure, because of any specific piece of constitutional textemerged as an important theme in the new federalism jurisprudence of the 1990s. In a series of sovereign immunity cases, most prominently Alden v. Maine, conservative Supreme Court majorities held that it would violate states dignity if Congress could use its Article I powers to make states subject to lawsuits for money damages without their consent. In those cases, dignity enters the picture in a hierarchical way: it is one state versus the federal government. The invocation of dignity is meant to evoke a pre-democratic idea of the dignity of the !"# %"&'()*+, -*. /0#12, 3)4"'-"5 6789
!"#$%&'( *+&,-. 8:: sovereign, an idea that predates the modern conceptions of human dignity that are now so central to the constitutional law and jurisprudence of many nations and international bodies.
In other words, the dignity claim here is about the sovereignty of a state any state. Maine will do as well as South Carolina.
Analysis: State dignity is critical to the creation of equality between states and the principle of federalism. Teams need to establish that sovereignty is actually a Constitutional principle in order to win this point. Really, what teams need to establish is that equal protection of the laws can only occur with equal sovereignty. For laws to be equally enforced in various states, the equal sovereignty of the states needs to exist.
Answer: There is no Constitutional basis for the claim of equal sovereignty among the states with the application of laws, particularly laws that are left up to Congress.
Warrant: Justice Ginsburg argues that there is actually no Constitutional basis for the argument that states should enjoy equality among the other states because any of the cases cited dont actually make the claim that sovereignty should be extended to all the states in every instance.
Shelby County v. Holder. Supreme Court of the United States. 2013. Web. 6 Jan 2013. < http://www.supremecourt.gov/opinions/12pdf/12-96_6k47.pdf>
The Court stops any application of 5 by holding that 4(b)s coverage formula is unconstitutional. It pins this result, in large measure, to the fundamental principle of equal sovereignty. In Katzenbach, however, the Court held, in no uncertain terms, that the principle applies only to the terms upon which States are admitted to the Union, and not to the remedies for local evils which have subsequently appeared. Katzenbach, the Court acknowledges, rejected the notion that the [equal sovereignty] principle operate[s] as a bar on differential treatment outside [the] context [of the admission of new States]. But the Court clouds that once clear understanding by citing dictum from Northwest Austin to convey that the principle of equal sovereignty remains highly pertinent in assessing subsequent disparate treatment of States.
Analysis: This is critical for Con teams to establish that the court case cited by the majority to justify the notion of equal sovereignty actually only addresses equal sovereignty when discussing the manner in which states are admitted and not when discussing federal laws. This is especially problematic for Pro teams, because the Court case that establishes the Constitutional basis, Katzenbach v. South Carolina, actually only establishes it in terms of when states are admitted to the union. !"# %"&'()*+, -*. /0#12, 3)4"'-"5 6789
!"#$%&'( *+&,-. 8:;
Answer: Every law the federal government ever passes will affect certain states differently than others.
Warrant: The reason every law affects states differently is because states have different populations, different resources, different abilities to enforce the law and different circumstances across the board. This is why a principle of equal sovereignty would be impossible to enforce, and the reason there is no claim of equal sovereignty in the Constitution.
Posner, Eric. "Supreme Court in 2013: The Year in Review." Slate. 25 Jun 2013. Web. 6 Jan. 2014. <http://www.slate.com/articles/news_and_politics/the_breakfast_table/features/20 13/supreme_court_2013/clarence_thomas_is_the_ron_paul_of_the_supreme_cour t.html>
In fact, the federal government doesnt treat states equally and couldnt possibly. Nearly all laws affect different states differently. Disaster-relief laws benefit disaster- prone states at the expense of disaster-free states. Pollution-control laws burden industrial states. Progressive taxes burden states where the rich are concentrated. Thanks to Congress, the Environmental Protection Agency can single out states with serious pollution problems, the Justice Department can keep an eye on states with serious corruption problems, and immigration authorities can single out border states for surveillance. Indeed, Section 2 of the Voting Rights Act will continue to burden states with substantial minority populations relative to other states, just because you cant discriminate against a minority population that doesnt exist. Many more Section 2 claims will be brought in Alabama than in Montana, and so even under Section 2, Alabama has vastly less control over its election law than Montana has over its election law.
Analysis: Eric Posner is a professor at University of Chicago Law School. This evidence is excellent for Con teams wishing to establish that if a court used a principle of equal sovereignty !"# %"&'()*+, -*. /0#12, 3)4"'-"5 6789
!"#$%&'( *+&,-. 8:; to determine whether or not to pass certain laws, they would be unable to pass any laws because every law that is ever passed inevitably effects certain states differently than it effects other states because of the nature of difference between states. So Con teams need to very clearly establish that all laws will create inherent differences between states, so then it is extremely difficult for Pro teams to establish a link between equal sovereignty and Constitutiinality.
Answer: The majority in Shelby County falsely equates equal protection of the states with the equal protection of individuals, something Section 4b of the VRA was actually designed to protect.
Warrant: Equal protection of individuals is outlined in the 14 th Amendment, an amendment that is actually designed to prevent things like discriminatory voting law changes from being passed. However, the majority who decided to overturn Section 4b misinterpreted the 14 th Amendment as arguing that states should enjoy equal coverage of the laws.
Totenberg, Nina. "Supreme Court Weighs Future of Voting Rights Act." National Public Radio. DISQUS, 27 Feb 2013. Web. 6 Jan 2014. < http://www.npr.org/2013/02/27/173012038/supreme-court-weighs-future-of- voting-rights-act>
County Attorney Ellis, however, forcefully objects to the notion that Shelby County tried to use artifice to prevent a black candidate from winning an election. He notes that in a county that is 90 percent white, there have been multiple elections in which black candidates defeated white candidates. In any race, you show where you had a minority candidate happen to lose, I can show you two where they won with a 90 percent white population, Ellis says. He maintains that because the Voting Rights Act has not been updated in its coverage formula since 1975, the law amounts to an unjustified violation of states' equal sovereignty. All of our states are equally sovereign, and if you're going to impose a current burden, he argues, you've got to have a current justification. You can't use a justification that's 49 years old. Defenders of the law counter that the post-Civil War amendments to the Constitution explicitly give !"# %"&'()*+, -*. /0#12, 3)4"'-"5 6789
!"#$%&'( *+&,-. 8:; Congress the power to enact appropriate legislation to enforce and protect the right to vote. As for Shelby County's equality argument, it treats the Constitution as if it's about equal protection for the states, not about equal protection for people, Karlan says.
Analysis: This piece of evidence clearly shows that the Supreme Court misinterpreted the argument about equal protection, specifically that equal protection concerns states and not people, when in fact it only concerns people. This argument is especially problematic because the Constitution doesnt really address the quality of individuals.
Argument: The Necessary and Proper Clause dictates that Congress may only pass laws that are deemed both necessary and proper.
Warrant: Section 4b of the Voting Rights Act is no longer necessary and proper because the states that were covered now actually have higher voter turnout as a result of the Voting Rights Act. However, this actually means that there is no longer a need to have the restrictive formula on certain states.
Fisher, Daniel. "Supreme Court Upholds Voting Rights Act, but Strikes Down How it is Enforced." Forbes. 25 Jun 2013. <http://www.forbes.com/sites/danielfisher/2013/06/25/supreme-court-upholds- voting-rights-act-but-strikes-down-how-its-enforced/>. 6 Jan. 2014.
But Roberts declared Section 4 of that law unconstitutional because it singled out certain states and counties based on 40-year-old evidence of racial discrimination. It was a strong affirmation of federalism and in particular the concept of equal sovereignty among the states. It also highlights the huge economic and social changes that have swept the South since 1965, to the point that voter turnout as a percentage of the minority population is far higher in Mississippi, a covered state, than in Massachusetts, which is not. There is no doubt that these improvements are in large part because of the Voting Rights Act, Roberts wrote. But the formula Congress devised in 1965, separating states into those with low voter turnouts and pernicious tests like literacy requirements, is no longer valid, he said. Today the Nation is no longer divided along those lines, yet the Voting Rights Acts continued to treat it as if it were.
Analysis: This evidence is key for showing that states that are covered by the VRA and the restriction placed on those states is no longer justified because of changes to the ways in which !"# %"&'()*+, -*. /0#12, 3)4"'-"5 6789
!"#$%&'( *+&,-. 8:8 those states allow their citizens to vote and function as bodies. Congress can only pass restrictive laws when they have justification to do so and when the circumstances actually necessitate the restrictions.
Warrant: Constitution specifically outlines that Congress can only pass what it is necessary and proper.
U.S. Const. art 1, sec 8, cl 18. University of Chicago. 2000. <http://press- pubs.uchicago.edu/founders/tocs/a1_8_18.html>.
To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.
Analysis: This is excellent to have on hand to show that Congress can only pass laws that are considered simultaneously necessary and proper. This can be left up to interpretation but Pro teams should take it upon themselves to define this section of the Constitution.
Warrant: States that are not covered by the formula are passing voter ID laws and thus the formula is not reflective of the states that are actually passing laws that create discriminatory outcomes as a result of voting laws.
Bronner, Ethan. "Pennsylvania Judge Keeps Voter ID Law Intact on it Way to Higher Courts." New York Time.s15 Aug 2012. <http://www.nytimes.com/2012/08/16/us/politics/pennsylvania-judge-keeps- voter-id-law-intact.html>. 6 Jan. 2014.
A Pennsylvania judge on Wednesday declined to block a new state law requiring specific kinds of photo identification to vote. Liberal groups, arguing that minorities and the poor would be disproportionately deprived of the ballot, said they would !"# %"&'()*+, -*. /0#12, 3)4"'-"5 6789
!"#$%&'( *+&,-. 8:6 appeal to the State Supreme Court to stop the law before the November elections. The groups said the law, like those recently passed in 10 other states, was a Republican attempt to suppress participation of the less privileged, who tend to vote for Democrats. The laws backers said they were seeking to preserve the integrity of the electoral process. Both parties acknowledge that voter turnout could play a crucial role in what many predict will be a tight race between President Obama and Mitt Romney, the presumptive Republican nominee, especially in battleground states like Pennsylvania. Other court cases under way include federal inquiries into voter ID laws in Texas and South Carolina and a state challenge in Wisconsin. In Ohio, a dispute over rules for early voting ended on Wednesday when the secretary of state set uniform hours statewide.
Analysis: This evidence is excellent for showing that states that actually arent covered by Section 4b are the ones who pass discriminatory voting laws. This means that the law is no longer covering the states that actually need for laws to be passed. Ohio and Pennsylvania are not actually covered by the Voting Rights Act, which means that the formula is no longer responsive to current needs and the current make-up. Pro teams should use this evidence to show that the law is no longer necessary and proper.
Warrant: States that initially had discriminatory voting policies and thus unequal amount of voting at the polls no longer have this level of discrimination.
Shelby County v. Holder. Supreme Court of the United States. 2013. <http://www.supremecourt.gov/opinions/12pdf/12-96_6k47.pdf>. 6 Jan 2013.
Nearly 50 years later, they are still in effect; indeed, they have been made more stringent, and are now scheduled to last until 2031. There is no denying, however, that the conditions that originally justified these measures no longer characterize voting in the covered jurisdictions. By 2009, the racial gap in voter registration and turnout [was] lower in the States originally covered by Section 5 than it [was] nationwide. Since that time, Census Bureau data indicated that African-American voter turnout has !"# %"&'()*+, -*. /0#12, 3)4"'-"5 6789
!"#$%&'( *+&,-. 8:; come to exceed white voter turnout in five of the six States originally covered by Section 5, with a gap in the sixth State of less than one half of one percent. At the same time, voting discrimination still exists; no one doubts that. The question is whether the Acts extraordinary measures, including its disparate treatment of the States, continue to satisfy constitutional requirements. As we put it a short time ago, the Act imposes current burdens and must be justified by current needs.
Analysis: This evidence is critical for Pro teams to show, especially with the last sentence, that necessary and proper was key for the Supreme Court deciding whether or not the Voting Rights Act was merited by current conditions. This is especially indicative that the Voting Rights Act formula is no longer accurate because minority voter turnout in the states that are covered is actually higher than states that are not covered. So Pro teams can now easily argue that the goal of the VRA, increasing minority voter turnout, has actually been met and thus the law is neither necessary nor proper in the context of current conditions, especially current amount of voter turnout.
Answer: As soon as Section 4 was invalidated by the Supreme Court, states covered by the formula immediately began passing discriminatory laws.
Warrant: Preclearance was actually the thing preventing states from passing laws that restrict access to voting. Voter ID laws, while perhaps not intended to be discriminatory on the outset, had discriminatory effects which was all Section 4 required to prove.
Childress, Sarah. "With Voting Rights Out, States Push Voter ID Laws." Frontline. 26 Jun 2013. <http://www.pbs.org/wgbh/pages/frontline/government-elections- politics/with-voting-rights-act-out-states-push-voter-id-laws/>. 6 Jan. 2014.
Within 24 hours of the Supreme Courts decision to strike down the law requiring nine states to submit voting law changes to the federal government for pre- clearance, five are already moving ahead with voter ID laws, some of which had already been rejected as discriminatory under the Voting Rights Act. The spate of new and potentially discriminatory laws is exactly why proponents of the Voting Rights Act argued that Section 4, the pre-clearance requirement, should remain in place. Before 1965, when the law was first passed, state and local governments came up with ever- inventive ways to keep blacks from voting, forcing the federal government to launch countless legal battles. When Texas was prohibited from holding all-white primaries in 1927, for example, it passed a new law to allow the party leadership to decide who could vote. They chose an all-white primary. Early attempts to cope with this vile infection resembled battling the Hydra, said Justice Ruth Bader Ginsburg, in her fierce dissent of the Supreme Courts ruling. Whenever one form of voting discrimination was identified and prohibited, others sprang up in its place. This Court repeatedly encountered the remarkable variety and persistence of laws disenfranchising minority citizens, she continued. Since last year, 41 states have introduced some form of restrictive voting legislation, and of those 18 passed laws. Among the most popular are those that !"# %"&'()*+, -*. /0#12, 3)4"'-"5 6789
!"#$%&'( *+&,-. 8:; require voters to show a photo ID in order to vote, which proponents say helps to counter fraud a phenomenon that almost never happens, analysts say.
Analysis: This evidence is fantastic for Con teams to use to prove that the only thing stopping all the horrible discriminatory voting laws that the majority argued was a thing of the past was actually Section 4 of the Voting Rights Act. Section 4 was actually the only thing prevent en masse discrimination as a result of voter ID laws. After the law was invalidated, states passed laws that had in fact already been shown to have discriminatory outcomes.
Answer: North Carolina immediately passed a discriminatory voter ID law.
Warrant: Immediately after the invalidation of VRA, states felt comfortable passing Voter ID laws that had already been deemed discriminatory and violative of the individuals 15 th
Amendment rights in those states.
Johnson, Carrie. "Justice Department Sues North Carolina Over Voter ID Laws." National Public Radio. DISQUS, 30 Sep 2013. <http://www.npr.org/blogs/thetwo-way/2013/09/30/227591062/justice- department-to-sue-north-carolina-over-voter-id-law>. 6 Jan 2014.
The Justice Department is suing North Carolina over that state's restrictive new voting law. The lawsuit takes aim at provisions that limit early voting periods and require a government photo ID as an illegal form of discrimination against minorities at the ballot box. Federal authorities are challenging four parts of the state law, passed soon after the Supreme Court invalidated a key part of the landmark 1965 Voting Rights Act in June. Those provisions include: the state's decision to cut back on early voting by a week; the elimination of same-day registration during that early voting period; the prohibition on counting certain provisional ballots that are not prepared in a voter's specific precinct; and the adoption of a strict photo identification requirement without protections for voters who lack that required ID. !"# %"&'()*+, -*. /0#12, 3)4"'-"5 6789
!"#$%&'( *+&,-. 8:: Analysis: North Carolina immediately passed an ID law as soon as VRA was dropped which is key for con teams to establish that VRA was actually what was preventing all these horrible and discriminatory outcomes from occurring. Measures that are initially perceived as benevolent are actually incredibly discriminatory and prevent individuals from exercising their 15 th Amendment rights.
Answer: Voter ID laws are always discriminatory.
Warrant: ID laws traditionally disenfranchise low-information voters who are often poor or minorities and thus are blocked out of voting and systematically prevented from having their ideas expressed in the electorate.
Cohen, Andrew. "How Voter ID Laws Are Being Used to Disenfranchise Minorities and the Poor." Atlantic. 16 Mar 2012. <http://www.theatlantic.com/politics/archive/2012/03/how-voter-id-laws-are- being-used-to-disenfranchise-minorities-and-the-poor/254572/>. 6 Jan. 2014.
It's unlikely new legislation is needed -- we can still use the old reliable 1965 statute and apply it to new circumstances like the ones presented now. But does the discriminatory effect of state ID laws have to be so bad -- "violence, terror and subterfuge" is how Justice Thomas put it -- before the federal government may step in against a state? Or is it enough to establish that there is a national effort by conservative groups to press for these types of laws? (Ironic, isn't it, in a dispute conservatives argue is states' rights, that so many of these state voter ID laws would be conceived within the Beltway.) Several commentators over the past week or so have called the current generation of voter ID laws "a solution in search of a problem." But that doesn't give enough respect to the argument that we should as a nation strive to be as accurate as possible with our voting. If voting fraud is the third oldest profession, and if it is somehow rampant in all these states that have Republican leaders at their helm, then there should be reasonable ways to combat it. No responsible lawmaker !"# %"&'()*+, -*. /0#12, 3)4"'-"5 6789
!"#$%&'( *+&,-. 8:; ought to be against that. But no one seems able to find good evidence that a crisis is at hand.
Analysis: This evidence is critical for showing that Voter ID laws, the laws that are not permitted by the VRA are consistently discriminatory and prevent individuals who are especially low-information from having access to the polls. This evidence is key for Con teams to show that the various concerns Pro teams can express are not legitimate, especially about voter fraud or the notion that elections will be delegitimized without IDs. Elections will actually be delegitimized if voters no longer have access to the polls and we have officials who are no longer representative of the electorate.
Argument: Rights of states are reserved and the federal government is limited. Moreover, the Fourteenth Amendment's enforcement clause makes it clear that Congress can only act to remedially, in other words, to cure an existing problem. Therefore, without active evidence of states acting in a discriminatory manner in regards to voting, Section 4 of the VRA is unconstitutional.
Warrant: In McColluch v. Maryland, the Supreme Court established that the powers of the legislature is limited and that this idea of limits must be held to an extremely high standard.
CITY OF BOERNE, PETITIONER v. P. F. FLORES, ARCHBISHOP OF SAN ANTONIO, AND UNITED STATES. SUPREME COURT OF THE UNITED STATES. 25 June 1997. Legal Information Institute at Cornell University Law School. Web. 4 Jan. 2014. <http://www.law.cornell.edu/supct/pdf/95-2074P.ZO>.
"Under our Constitution, the Federal Government is one of enumerated powers. McCulloch v. Maryland, 4 Wheat. 316, 405 (1819); see also The Federalist No. 45, p. 292 (C. Rossiter ed. 1961) (J. Madison). The judicial authority to determine the constitutionality of laws, in cases and controversies, is based on the premise that the 'powers of the legislature are defined and limited; and that those limits may not be mistaken, or forgotten, the constitution is written.' Marbury v. Madison, 1 Cranch 137, 176 (1803)."
Warrant: Congress has enforcement power only in remedial cases. In other words, Congress can only act in retrospect to solve problems regarding racial discrimination in voting rights.
CITY OF BOERNE, PETITIONER v. P. F. FLORES, ARCHBISHOP OF SAN ANTONIO, AND UNITED STATES. SUPREME COURT OF THE UNITED !"# %"&'()*+, -*. /0#12, 3)4"'-"5 6789
!"#$%&'( *+&,-. 8:; STATES. 25 June 1997. Legal Information Institute at Cornell University Law School. Web. 4 Jan. 2014. <http://www.law.cornell.edu/supct/pdf/95-2074P.ZO>.
"The Fourteenth Amendment's history confirms the remedial, rather than substantive, nature of the Enforcement Clause. The Joint Committee on Reconstruction of the 39th Congress began drafting what would become the Fourteenth Amendment in January 1866. The objections to the Committee's first draft, and the rejection of the draft, have a direct bearing on the central issue of defining Congress' enforcement power. In February, Republican Representative John Bingham of Ohio reported the following draft amendment to the House of Representatives on behalf of the Joint Committee: 'The Congress shall have power to make all laws which shall be necessary and proper to secure to the citizens of each State all privileges and immunities of citizens in the several States, and to all persons in the several States equal protection in the rights of life, liberty and property.' Cong. Globe, 39th Cong., 1st Sess., 1034 (1866). The proposal encountered immediate opposition, which continued through three days of debate. Members of Congress from across the political spectrum criticized the Amendment, and the criticisms had a common theme: the proposed Amendment gave Congress too much legislative power at the expense of the existing constitutional structure.'"
Warrant: There must be a current reason for the federal government to meddle with states' rights. Federal government is overstepping their power if they lack proof that their intervention is completely necessary.
"The Voting Rights Case: A Constitutional View." Tenth Amendment Center. N.p., n.d. Web. 04 Jan. 2014. <http://tenthamendmentcenter.com/2013/08/01/the-voting- rights-case-a-constitutional-view/>.
"Time passed, and discriminatory ways were abandoned, Yet Congress did not narrow Section 4s formula to bring it up to date. On the contrary, Congress re- authorized the formula and even expanded it. By 2013, states with excellent records !"# %"&'()*+, -*. /0#12, 3)4"'-"5 6789
!"#$%&'( *+&,-. 8:7 of minority voting were still being punished for misdeeds long in the past. Congress had chosen to visit the iniquity of the ancestors on future generations. In fact, Congress had chosen to punish many alive today who did not even have any culpable ancestors. Thus, the Court voided Section 4 because it was no longer 'appropriate legislation,' leaving Congress free to adopt a more appropriate substitute. Justice Thomas concurred with the result, but wrote separately to say that he would also invalidate Section 5, the list of specified penalties to be imposed on states singled out by Section 4. Thomas is an African-American son of the segregated South. But he pointed out that the evils the law was designed to solve had long since been solved. There was no longer reason for federal meddling in matters the Constitution ordinarily reserves to the states."
Analysis: The 10th Amendment gives states reserved rights and is supposed to limit the power of the federal government over the states. Federal power seems to be expanded by the enforcement clause of the Fourteenth Amendment, but not in the case of to allow the VRA. The federal government can only act remedially, meaning that evidence of racial discrimination must be present. Without this evidence the federal government is unconstitutionally stepping on the toes of state governments. !"# %"&'()*+, -*. /0#12, 3)4"'-"5 6789
Answer: Congress is not limited to act remedially.
Warrant: Katzenbach v. Morgan is cited in NAMUDNO v. Mukasey to expand Congress's ability to enforce the Fourteenth Amendment to not only remedy racial discrimination by the States but to prevent it.
NORTHWEST AUSTIN MUNICIPAL UTILITY DISTRICT NUMBER ONE v. MICHAEL B. MUKASEY. UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA. N.d. Brennan Center for Justice. Web. 4 Jan. 2014. <http://www.brennancenter.org/sites/default/files/legacy/Democracy/5.30.08.nam undo.decision.pdf>.
"Indeed, citing Morgan and viewing section 4(e) as a measure aimed at 'racial discrimination,' Justice Scalia announced in Lane, the most recent of the City of Boerne cases, that 'I shall leave it to Congress, under constraints no tighter than those of the Necessary and Proper Clause, to decide what measures are appropriate under 5 [of the Fourteenth Amendment] to prevent or remedy racial discrimination by the States.'"
Answer: The Supreme Court granted Congress enforcement powers of the Fourteenth Amendment.
Warrant: The Supreme Court exploits precedence to expand federal power to enforce Fourteenth Amendment. Therefore, the same should be done in the case of Shelby County v. Holder.
!"# %"&'()*+, -*. /0#12, 3)4"'-"5 6789
!"#$%&'( *+&,-. 8:6 Katzenbach v. Morgan. SUPREME COURT OF THE UNITED STATES. 13 June 1966. Legal Information Institute at Cornell University Law School. Web. 4 Jan. 2014. <http://www.law.cornell.edu/supremecourt/text/384/641>.
"Ex parte Virginia, 100 U.S. at 345-346, decided 12 years after the adoption of the Fourteenth Amendment, held that congressional power under 5 had this same broad scope. Whatever legislation is appropriate, that is, adapted to carry out the objects the amendments have in view, whatever tends to enforce submission to the prohibitions they contain, and to secure to all persons the enjoyment of perfect equality of civil rights and the equal protection of the laws against State denial or invasion, if not prohibited, is brought within the domain of congressional power."
Answer: The Supreme Court uses the tests established by McCulloch v. Maryland to determine the constitutionality of actions by Congress that enforce the Fourteenth Amendment.
Warrant: 5 of the Fourteenth Amendment broadens Congress's powers to those established by the Necessary and Proper Clause.
Katzenbach v. Morgan. SUPREME COURT OF THE UNITED STATES. 13 June 1966. Legal Information Institute at Cornell University Law School. Web. 4 Jan. 2014. <http://www.law.cornell.edu/supremecourt/text/384/641>.
"By including 5, the draftsmen sought to grant to Congress, by a specific provision applicable to the Fourteenth Amendment, the same broad powers expressed in the Necessary and Proper Clause, Art. I, 8, cl. 18. The classic formulation of the reach of those powers was established by Chief Justice Marshall in McCulloch v. Maryland, 4 Wheat. 316, 421: Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional."
!"# %"&'()*+, -*. /0#12, 3)4"'-"5 6789
!"#$%&'( *+&,-. 8:; Warrant: An action by Congress must meet these standards to be legitimate as was done in the case of Katzenbach v. Morgan. Katzenbach v. Morgan. SUPREME COURT OF THE UNITED STATES. 13 June 1966. Legal Information Institute at Cornell University Law School. Web. 4 Jan. 2014. <http://www.law.cornell.edu/supremecourt/text/384/641>.
"We therefore proceed to the consideration whether 4(e) is 'appropriate legislation' to enforce the Equal Protection Clause, that is, under the McCulloch v. Maryland standard, whether 4(e) may be regarded as an enactment to enforce the Equal Protection Clause, whether it is "plainly adapted to that end," and whether it is not prohibited by, but is consistent with, 'the letter and spirit of the constitution.'"
Warrant: The VRA clearly meets the 1st standard: "an enactment to enforce" an Amendment. It has the intent to prevent discrimination in voting.
"The Voting Rights Act of 1965." Civil Rights Division Home Page. U.S. Department of Justice, n.d. Web. 02 Jan. 2014. <http://www.justice.gov/crt/about/vot/intro/intro_b.php>.
"Congress determined that the existing federal anti-discrimination laws were not sufficient to overcome the resistance by state officials to enforcement of the 15th Amendment. The legislative hearings showed that the Department of Justice's efforts to eliminate discriminatory election practices by litigation on a case-by-case basis had been unsuccessful in opening up the registration process; as soon as one discriminatory practice or procedure was proven to be unconstitutional and enjoined, a new one would be substituted in its place and litigation would have to commence anew."
Warrant: The VRA also meets the 2nd standard: a law "plainly adapted to that end." It is targets areas where discrimination is the greatest and adds a check, the Attorney General and the U.S. District Court for the District of Columbia, to prevent that discrimination.
!"# %"&'()*+, -*. /0#12, 3)4"'-"5 6789
!"#$%&'( *+&,-. 8:9 "The Voting Rights Act of 1965." Civil Rights Division Home Page. U.S. Department of Justice, n.d. Web. 02 Jan. 2014. <http://www.justice.gov/crt/about/vot/intro/intro_b.php>.
"President Johnson signed the resulting legislation into law on August 6, 1965. Section 2 of the Act, which closely followed the language of the 15th amendment, applied a nationwide prohibition against the denial or abridgment of the right to vote on the literacy tests on a nationwide basis. Among its other provisions, the Act contained special enforcement provisions targeted at those areas of the country where Congress believed the potential for discrimination to be the greatest. Under Section 5, jurisdictions covered by these special provisions could not implement any change affecting voting until the Attorney General or the United States District Court for the District of Columbia determined that the change did not have a discriminatory purpose and would not have a discriminatory effect. In addition, the Attorney General could designate a county covered by these special provisions for the appointment of a federal examiner to review the qualifications of persons who wanted to register to vote. Further, in those counties where a federal examiner was serving, the Attorney General could request that federal observers monitor activities within the county's polling place."
Warrant: The VRA meets the last standard: "is consistent with, 'the letter and spirit of the constitution.'" It acts in favor of the enforcement clause of the Constitution.
"In Need of a Constitutional Rationale." MSNBC. NBC Universal, 25 June 2013. Web. 04 Jan. 2014. <http://www.msnbc.com/rachel-maddow-show/need-constitutional- rationale?lite=>.
"Assuming Id missed something important, I asked the Constitutional Accountability Centers David Gans to help me out. He told me: 'Your question highlights a fundamental flaw in Chief Justice Roberts majority opinion in Shelby County v. Holder. The Court strikes down a core provision of the Voting Rights Act as unconstitutional without ever explaining what provision of the Constitution commands this result. Chief !"# %"&'()*+, -*. /0#12, 3)4"'-"5 6789
!"#$%&'( *+&,-. 8:; Justice Roberts opinion for the conservative majority argued that the Voting Rights Act provision was inconsistent with the letter and spirit of the Constitution, but he never really explained why. 'His majority opinion emphasized that the Voting Rights Act diminished the sovereignty of states, ignoring that Fifteenth Amendment expressly gives to Congress broad power to prevent all forms of racial discrimination in voting by the states. As Justice Ginsburgs powerful dissent demonstrates, the Courts opinion cannot be squared with the text, history, and meaning of the Fifteenth Amendment.'"
Analysis: First, Congress is not limited to act only in retrospect, so it does not necessarily need the most up-to-date evidence of racial discrimination. Instead, it can act to prevent discrimination. More importantly, however, the Supreme Court decided that the same tests used to limit the federal government established in McCulloch v. Maryland are all passed by the VRA. It clearly cannot be deemed correctly unconstitutional.
Con Arguments with Pro Responses Champion Briefs February 2013 Public Forum Brief !"# %&'()*#+, -#. /0"12, 3*4&(-&5 6789
Argument: The jurisdictions listed in Section Four of the Voting Rights Act still have the worst voting conditions in the nation.
Warrant: Covered jurisdictions continue to submit voting laws that seek to bar minority voting.
Justice Ginsburg. "SHELBY COUNTY v. HOLDER." Legal Information Institute. Cornell University Law School, 25 June 2013. Web. 04 Jan. 2014. <http://www.law.cornell.edu/supremecourt/text/12-96>.
Although the VRA wrought dramatic changes in the realization of minority voting rights, the Act, to date, surely has not eliminated all vestiges of discrimination against the exercise of the franchise by minority citizens. Jurisdictions covered by the preclearance requirement continued to submit, in large numbers, proposed changes to voting laws that the Attorney General declined to approve, auguring that barriers to minority voting would quickly resurface were the preclearance remedy eliminated.
Warrant: In 2006, Texas was prevented from enacting a congressional redistricting that reduced the strength of Latino voters.
Justice Ginsburg. "SHELBY COUNTY v. HOLDER." Legal Information Institute. Cornell University Law School, 25 June 2013. Web. 04 Jan. 2014. <http://www.law.cornell.edu/supremecourt/text/12-96>.
In 2006, this Court found that Texas attempt to redraw a congressional district to reduce the strength of Latino voters bore the mark of intentional discrimination that could give rise to an equal protection violation, and ordered the district redrawn in compliance with the VRA. League of United Latin American Citizens v. !"# %&'()*#+, -#. /0"12, 3*4&(-&5 6789
!"#$%&'( *+&,-. 8:; Perry, 548 U. S. 399, 440 (2006). In response, Texas sought to undermine this Courts order by curtailing early voting in the district, but was blocked by an action to enforce the 5 preclearance requirement. See Order in League of United Latin American Citizens v. Texas, No. 06cv1046 (WD Tex.), Doc. 8.
Warrant: There were more preclearance objections in covered jurisdictions between 1982 and 2004 than there were from 1965 and 1982.
Machen, Ronald C. "Memorandum Of Law In Opposition To Plaintiffs Motion For Summary Judgment And In Support Of Defendants Motion For Summary Judgment." Department of Justice. Department of Justice, 25 June 2012. Web. 5 Jan. 2014. <http://www.justice.gov/crt/about/app/briefs/floridabrief.pdf>.
It also found further categories of evidence that supported Congresss conclusion that intentional racial discrimination in voting remains serious and widespread and that Section 5 preclearance is still needed: Over 700 objections by the Attorney General between 1982 and mid-2006, including at least 423 purpose-based objections between 1980 and 2004; A consistent number of objections both pre-and post-1982 Reauthorization, including 626 objections from 1982 to 2004 and 490 between 1965 and 1982;
Warrant: Covered jurisdictions disproportionally represent the countrys most successful VRA preclearance litigation.
McDonald, M. Laughlin. "Brief For Respondent-Intervenors Bobby Pierson, Willie Goldsmith, Sr., Mary Paxton-Lee, Kenneth Dukes, And Alabama State Conference Of The National Association For The Advancement Of Colored People." American Civil Liberties Union. Web. <http://www.aclu.org/files/assets/12- 96_bs_bobby_pierson_et_al._0.pdf>.
!"# %&'()*#+, -#. /0"12, 3*4&(-&5 6789
!"#$%&'( *+&,-. 8:; While the covered jurisdictions contained less than 25% of the countrys population, they accounted for 56% of successful Section 2 litigation since 1982.
Impact: By examining lawsuits, study found that most racial discrimination remains concentrated in covered jurisdictions.
Justice Ginsburg. "SHELBY COUNTY v. HOLDER." Legal Information Institute. Cornell University Law School, 25 June 2013. Web. 04 Jan. 2014. <http://www.law.cornell.edu/supremecourt/text/12-96>.
Because the private right of action authorized by 2 of the VRA applies nationwide, a comparison of 2 lawsuits in covered and noncovered jurisdictions provides an appropriate yardstick for measuring differences between covered and noncovered jurisdictions. If differences in the risk of voting discrimination between covered and noncovered jurisdictions had disappeared, one would expect that the rate of successful 2 lawsuits would be roughly the same in both areas. 6 The studys findings, however, indicated that racial discrimination in voting remains concentrated in the jurisdictions singled out for preclearance.
Warrant: The standard of Supreme Court review is whether or not Congress has the rational means to prevent racial discrimination.
Justice Ginsburg. "SHELBY COUNTY v. HOLDER." Legal Information Institute. Cornell University Law School, 25 June 2013. Web. 04 Jan. 2014. <http://www.law.cornell.edu/supremecourt/text/12-96>.
Until today, in considering the constitutionality of the VRA, the Court has accorded Congress the full measure of respect its judgments in this domain should garner. South Carolina v. Katzenbach supplies the standard of review: As against the reserved !"# %&'()*#+, -#. /0"12, 3*4&(-&5 6789
!"#$%&'( *+&,-. 8:7 powers of the States, Congress may use any rational means to effectuate the constitutional prohibition of racial discrimination in voting.
Impact: Section four of VRA was constitutional because geographical areas had evidence of voting discrimination. The coverage formula proved rational in both practice and theory.
Whitaker, L. Paige. "Congressional Redistricting and the Voting Rights Act: A Legal Overview." Congressional Research Service. Federation of American Scientists, 30 Aug. 2013. Web. 5 Jan. 2014. <http://www.fas.org/sgp/crs/misc/R42482.pdf>.
Contrasting voting conditions in 1966 with the current day, the Court observed that when it upheld the constitutionality of the preclearance regime, it was justified by the presence of extensive racial discrimination in voting. At that time, the Court said, the coverage formula made sense because it tailored the preclearance requirement to those geographical areas where there was evidence of voting discrimination. Therefore, the Court had concluded that the coverage formula was rational in both practice and theory.
Analysis: Although the original drafting of the VRA legislation was based on past discrimination, it is evident through empirical evidence that this discrimination still exists. Although discrimination exists elsewhere, its overwhelming presence in the covered jurisdictions fulfills the coverage formula, giving the Congress the ability to reauthorize that legislation.
Answer: Racism is no longer confined to the covered jurisdictions.
Warrant: Racial discrimination no longer confined to the lines set up by the VRA.
Whitaker, L. Paige. "Congressional Redistricting and the Voting Rights Act: A Legal Overview." Congressional Research Service. Federation of American Scientists, 30 Aug. 2013. Web. 5 Jan. 2014. <http://www.fas.org/sgp/crs/misc/R42482.pdf>.
While such factors could appropriately be used to divide the country in 1965, the Court in Shelby County observed that the country is no longer divided along those lines. In order for Congress to divide the states in such a manner that some are subjected to preclearance, while others are not, the Court ruled that it must do so on a basis that makes sense in light of current conditions.
Warrant: Protections against voters that were discriminated against were only confined to the covered states.
Henderson, Wade. "Voting Rights Act's Section 5 Still Stopping Discrimination Today." US News. U.S.News & World Report, 27 Feb. 2013. Web. 04 Jan. 2014. <http://www.usnews.com/debate-club/should-the-supreme-court-strike-down-the- preclearance-provision-of-the-voting-rights-act/voting-rights-acts-section-5-still- stopping-discrimination-today>.
Sadly, efforts to deny the right to vote based on race are not a thing of the pastthey are a contemporary reality. In the 2012 election alone, efforts to discriminate against millions of minority voters were stopped only because they were in geographic areas protected by Section 5. For example, Section 5 stopped the implementation of discriminatory voter ID laws in Texas and South Carolina; prevented the use of !"# %&'()*#+, -#. /0"12, 3*4&(-&5 6789
!"#$%&'( *+&,-. 8:6 discriminatory congressional and state legislative district maps in Texas; and kept covered counties in Florida from shortening the early voting period that would have had a significant impact on minority voters.
Warrant: Low voting trends are more prevalent outside of covered jurisdictions.
Shapiro, Ilya. "What Changes After Supreme Court Ruling On Voting Rights Act." National Public Radio. National Public Radio, 25 June 2013. Web. 5 Jan. 2014. <http://www.npr.org/2013/06/25/195557564/what-changes-after-supreme-court- ruling-on-voting-rights-act>.
That's right. If you look at the disparities in voting registration, for example, the best state in the Union is Mississippi and the worst is Massachusetts. Something similar is going on for voter turnout in terms of, you know, kind of self-segregation by race and by other types of communities. Indeed, those sort of trends are more prevalent outside of the coverage jurisdictions, and that's because the coverage formula has not been changed since the facts on the ground, the statistics from 1968 to 1972.
Warrant: Requirements should be allocated to cases of discrimination in all jurisdictions.
Shapiro, Ilya. "What Changes After Supreme Court Ruling On Voting Rights Act." National Public Radio. National Public Radio, 25 June 2013. Web. 5 Jan. 2014. <http://www.npr.org/2013/06/25/195557564/what-changes-after-supreme-court- ruling-on-voting-rights-act>.
Indeed in the covered jurisdictions, the voting rates are better for blacks than they are in the uncovered jurisdictions. So if one thing is clear, it's that indeed, the Supreme Court four years ago gave Congress a chance to update, to put some real facts on the bones of an antiquated system, and Congress hasn't done that. And they're welcome to try !"# %&'()*#+, -#. /0"12, 3*4&(-&5 6789
!"#$%&'( *+&,-. 8:; again, but really on the question of resources, I think we need to reallocate those from these superfluous and burdensome pre-clearance requirements onto the actual cases of discrimination and other areas where the Department of Justice should be taking - going into court.
Impact: The VRA should protect all Americans Section 5 is still the most effective tool to do that.
Henderson, Wade. "Voting Rights Act's Section 5 Still Stopping Discrimination Today." US News. U.S.News & World Report, 27 Feb. 2013. Web. 04 Jan. 2014. <http://www.usnews.com/debate-club/should-the-supreme-court-strike-down-the- preclearance-provision-of-the-voting-rights-act/voting-rights-acts-section-5-still- stopping-discrimination-today>.
The Voting Rights Act is necessary to ensure that our aspirations for a stronger democracy are a reality for all citizens. Ongoing evidence shows that Section 5 of the Voting Rights Act is the most effective tool our nation has to stop discrimination against minorities at the ballot box. It stops real discrimination against real voters and we must ensure that Section 5 can continue to do this important work.
Analysis: Although the VRA has been successful in mitigating the effects of racial discrimination in covered jurisdictions, discriminatory voting practices are no longer confined to these areas. It is therefore constitutional and most beneficial if Section 5 is applied to all citizens. !"# %&'()*#+, -#. /0"12, 3*4&(-&5 6789
Framework: This argument relies on an alternate definition of the word rightly in the resolution. Instead of using rightly to mean correctly, you define rightly as meaning justly. (This is the second definition on the Miriam Webster entry for rightly).
Argument: Section 5 relies on section 4.
Warrant: Since section 4 was overturned, and since section 4 dictated with states were covered under section 5, section 5 is meaningless as a result of the decision.
Liptak, Adam. "Supreme Court Invalidates Key Part of Voting Rights Act." The New York Times. The New York Times, 25 June 2013. Web. 6 Jan. 2014. <http://www.nytimes.com/2013/06/26/us/supreme-court- ruling.html?pagewanted=all>.
The majority held that the coverage formula in Section 4 of the Voting Rights Act, originally passed in 1965 and most recently updated by Congress in 1975, was unconstitutional. The section determined which states must receive clearance from the Justice Department or a federal court in Washington before they made minor changes to voting procedures, like moving a polling place, or major ones, like redrawing electoral districts. Section 5, which sets out the preclearance requirement, was originally scheduled to expire in five years. Congress repeatedly extended it: for five years in 1970, seven years in 1975, and 25 years in 1982. Congress renewed the act in 2006 after holding extensive hearings on the persistence of racial discrimination at the polls, again extending the preclearance requirement for 25 years. But it relied on data from the 1975 reauthorization to decide which states and localities were covered. The current coverage system, Chief Justice Roberts wrote, is based on 40-year-old facts having no logical relationship to the present day. Congress if it is to divide the states must identify those jurisdictions to be singled out on a basis that makes sense in light !"# %&'()*#+, -#. /0"12, 3*4&(-&5 6789
!"#$%&'( *+&,-. 8:; of current conditions, he wrote. It cannot simply rely on the past. The decision did not strike down Section 5, but without Section 4, the later section is without significance unless Congress passes a new bill for determining which states would be covered.
Warrant: It is unlikely that Congress will fix section 4 because of Republican opposition.
Davis, Susan. "Congress unlikely to act on voting rights ruling." USA Today. Gannett, 25 June 2013. Web. 6 Jan. 2014. <http://www.usatoday.com/story/news/politics/2013/06/25/congress-reacts- voting-rights-rulling/2456477/>.
A divided Congress has no clear path to heed the call of Chief Justice John Roberts and President Obama to legislate in response to Tuesday's 5-4 Supreme Court decision that invalidated a portion of the landmark 1965 Voting Rights Act. Reaction on Capitol Hill largely mirrored the court's ideological divide: Democrats called for legislation to establish new formulas to determine whether states must get federal permission before instituting changes in voting practices, while Republicans were more reticent on the necessity to pass a new law.
Argument: Not having this protection against discrimination is immoral because discrimination is still prevalent in the areas that were covered by the law before it was overturned.
Warrant: There have been 2400 blocked discriminatory voting changes since 1982 in the area covered under section four.
Rosdeitcher, Sidney. "Supreme Court Preview: Constitutionality of the Preclearance and Coverage Provisions of the Voting Rights Act Reauthorization of 2006 | Brennan Center for Justice." Brennan Center for Justice at New York University School of Law, n.d. Web. 3 Jan. 2014. <http://www.brennancenter.org/analysis/supreme- !"# %&'()*#+, -#. /0"12, 3*4&(-&5 6789
Respondents detail the extensive record of racially discriminatory voting practices in the covered jurisdictions before Congress, that they maintain demonstrate current needs for the preclearance provision. This record shows, they maintain, that since 1982, approximately 2400 discriminatory voting changes had been blocked by more than 750 Section 5 objections and that without Section 5 these voting changes could have been challenged only through case-by-case litigation, a system that would have resulted in years of discriminatory treatment of minority voters pending the outcome of those litigations and would have required an enormous expenditure of resources. Among other evidence before Congress of voting discrimination in the covered jurisdictions, Respondents point to the number of successful suits under Section 2 of the Voting Rights Act filed in covered jurisdictions; continued disparities between minority voters registration and participation rates as compared to those of non-Hispanic white voters; the Attorney Generals experience in certifying and dispatching election observers; the persistence of severe racially polarized voting in covered jurisdictions that indicates the political vulnerability of racial-minority voting rights; and testimony of experts, voters, and practitioners about ongoing intimidation, harassment, voter suppression and intentionally dilutive practices.
Warrant: Voter-id laws that were blocked in five states will now become law, depress minority turnout.
Greenman, Emma . "Part 1: Gutting the Voting Rights Act: How the Supreme Courts Shelby v. Holder decision Strikes at the Heart of Voting Rights and Our Political Process." Wellstone. N.p., 14 July 2013. Web. 3 Jan. 2014. <http://www.wellstone.org/blog/2013/07/part-1-gutting-voting-rights-act-how- supreme-court%E2%80%99s-shelby-v-holder-decision-strikes>.
!"# %&'()*#+, -#. /0"12, 3*4&(-&5 6789
!"#$%&'( *+&,-. 8:; Take voter ID laws for starters. Until Shelby, Section 5 prevented covered states from implementing strict voter ID requirements that would depress minority turnout. Now freed of the federal government review, many of the formally covered jurisdictions will go ahead with those laws to the determinant of minority voters. In fact, they already have. Hours after the ruling, Texas announced it is putting a strict voter ID law into effect. The law had been blocked by Section 5 because, as the D.C. federal court observed, it imposes strict, unforgiving burdens on the poor, and racial minorities in Texas are disproportionately likely to live in poverty. And Texas is not alone. At last count, four more previously covered states are moving ahead with voter ID laws that will likely take effect before 2014 Congressional elections.
Warrant: Redistricting will dilute the influence of minority voters.
Greenman, Emma . "Part 1: Gutting the Voting Rights Act: How the Supreme Courts Shelby v. Holder decision Strikes at the Heart of Voting Rights and Our Political Process." Wellstone. N.p., 14 July 2013. Web. 3 Jan. 2014. <http://www.wellstone.org/blog/2013/07/part-1-gutting-voting-rights-act-how- supreme-court%E2%80%99s-shelby-v-holder-decision-strikes>.
And then there is redistricting. Section 5 has been very effective at preventing local jurisdictions from changing their rules to dilute the ability of minority voters to elect candidates of their choice. Strategies like packing minority voters into one highly concentrated district, or cracking their voting strength by distributing minority voters across many districts or at-large elections dilute the power of minority voters to influence and elect leaders of their choice. Shelby County, Alabama, the jurisdiction that took their challenge to the VRA to the Supreme Court, provides a telling example of what we may expect in the absence of Section 5 pre-clearance. In 2008, Calera, a city in Selby County, passed a redistricting plan that would have eliminated the citys single majority-black city council district. Section 5 enforcement blocked the change and saved the seat of the citys only black city council person. With federal review gone, there is nothing preventing the city from now implementing the change.
!"# %&'()*#+, -#. /0"12, 3*4&(-&5 6789
!"#$%&'( *+&,-. 8:: Analysis: This argument relies on an alternative interpretation of the resolution that the term rightly means justly. Thus, the con only needs to prove that the implications of the decision are unjust. Con does this by arguing that discrimination still exists, and that thus section 4 is still needed morally. !"# %&'()*#+, -#. /0"12, 3*4&(-&5 6789
Logical response: Since the resolution uses the term constitution, the best interpretation of the resolution is that it is asking us to evaluate the constitutionality, not morality, of the law. Con can respond to this by arguing that the resolution could have used the term correctly decided, which is more specific, but uses the term rightly decided, which is inherently more general and allows for alternative interpretations of the resolution.
Answer: Section 2 can act as a replacement to the loss of section 5.
Background: Explanation of Section 2 of the VRA.
"Section 2 of the Voting Rights Act." Civil Rights Division Voting Rights About Section 2 page. US Department of Justice, n.d. Web. 5 Jan. 2014. <http://www.justice.gov/crt/about/vot/sec_2/about_sec2.php>.
Section 2 of the Voting Rights Act of 1965 prohibits voting practices or procedures that discriminate on the basis of race, color, or membership in one of the language minority groups identified in Section 4(f)(2) of the Act. Most of the cases arising under Section 2 since its enactment involved challenges to at-large election schemes, but the section's prohibition against discrimination in voting applies nationwide to any voting standard, practice, or procedure that results in the denial or abridgement of the right of any citizen to vote on account of race, color, or membership in a language minority group. Section 2 is permanent and has no expiration date as do certain other provisions of the Voting Rights Act.
Warrant: The Justice Department is beginning to use status quo as a replacement to section 5.
Stephanopoulos, Nicholas. "New Research: The Part of the Voting Rights Act the Supreme Court Left Alone Works Better Than Expected." Slate Magazine. Slate !"# %&'()*#+, -#. /0"12, 3*4&(-&5 6789
A voting rights battle royal began last month when the Department of Justice sued North Carolina over its restrictive new election law. DOJ alleged that the law, which imposes a photo ID requirement for voting, ends same-day voter registration, and cuts back on early voting, violates Section 2 of the Voting Rights Act. Earlier this summer the DOJ also filed two Section 2 suits against Texas, arguing that its photo ID law and electoral district maps are illegal.
Warrant: Though it is weaker than section 5, section 2 has a 50% success rate, and will be successful against photo-id laws in the future.
Stephanopoulos, Nicholas. "New Research: The Part of the Voting Rights Act the Supreme Court Left Alone Works Better Than Expected." Slate Magazine. Slate Magazine, 23 Oct. 2013. Web. 6 Jan. 2014. <http://www.slate.com/articles/news_and_politics/jurisprudence/2013/10/section_ 2_of_the_voting_rights_act_is_more_effective_than_expected_new_research.htm l>.
As a shield against voting restrictions, however, Section 2 looks better than its reputation suggests. I counted 18 wins since 1982 in cases in which minority voters sued over tightened voter registration rules, absentee voting policies, polling place cutbacks, and the like. I also calculated a success rate of about 50 percent in these cases, which is higher than the 40 percent figure for all Section 2 suits. Slate contributor and UCIrvine law professor Richard Hasen has pointed out that there has yet to be a successful Section 2 challenge to a photo ID law. But only two such challenges have been decided so far (in Arizona and Georgia). And each failed because the plaintiffs couldnt show that minorities were less likely than whites to possess valid IDsproof that is now becoming !"# %&'()*#+, -#. /0"12, 3*4&(-&5 6789
!"#$%&'( *+&,-. 8:8 more available. This means that Section 2 should be an increasingly useful weapon against the voting restrictions popping up around the country.
Analysis: If there is an alternative to section 5, then not having section 5 is not immoral. Thus, you can respond to this argument even if you lose the framework argument.
Argument: Congress may fix this problem and create a new section 4.
Warrant: Many leading Republicans support fixing the Voting Rights Act.
Ball, Molly. "The Atlantic." The Atlantic. The Atlantic, 28 June 2013. Web. 6 Jan. 2014. <http://www.theatlantic.com/politics/archive/2013/06/no-the-voting-rights-act-is- not-dead/277281/>.
Rep. Jim Sensenbrenner of Wisconsin, a Republican who then chaired the Judiciary Committee, took the lead in rounding up support from the GOP in 2006. Sensenbrenner had worked on a previous renewal of the law in 1982 and believed strongly in its necessity. Today, Sensenbrenner again seems poised to advocate forcefully for Republicans to support a fix to the legislation. The Voting Rights Act is vital to America's commitment to never again permit racial prejudices in the electoral process, Sensenbrenner said in a Wednesday statement. My colleagues and I will work in a bipartisan fashion to update Section 4 to ensure Section 5 can be properly implemented to protect voting rights, especially for minorities. Sensenbrenner is not alone. Two other Midwestern Republicans, Sean Duffy of Wisconsin and Steve Chabot of Ohio, also have expressed support for passing a fix to the legislation in response to the Court, according to The Hill. House Majority Leader Eric Cantor, meanwhile, said he hoped his colleagues would put politics aside ... and find a responsible path forward that ensures that the sacred obligation of voting in this country remains protected.
Analysis: This may only be a short-term problem, because there is a chance that Congress with fix the law. If they dont, the moral failings fall on Congress, not the Supreme Court, because Congress has the power to fix the law in a way that is constitutional. !"# %&'()*#+, -#. /0"12, 3*4&(-&5 6789
"Section 2 of the Voting Rights Act." Civil Rights Division Voting Rights About Section 2 page. US Department of Justice, n.d. Web. 5 Jan. 2014. <http://www.justice.gov/crt/about/vot/sec_2/about_sec2.php>.
Section 2 of the Voting Rights Act of 1965 prohibits voting practices or procedures that discriminate on the basis of race, color, or membership in one of the language minority groups identified in Section 4(f)(2) of the Act. Most of the cases arising under Section 2 since its enactment involved challenges to at-large election schemes, but the section's prohibition against discrimination in voting applies nationwide to any voting standard, practice, or procedure that results in the denial or abridgement of the right of any citizen to vote on account of race, color, or membership in a language minority group. Section 2 is permanent and has no expiration date as do certain other provisions of the Voting Rights Act.
Argument: The conservative justices relied on the argument that section 2 was an adequate replacement for section 5 in order to rule section 4 unconstitutional.
Berman, Ari. "Three Questions That Will Decide the Fate of Voting Rights in North Carolina | The Nation." Three Questions That Will Decide the Fate of Voting Rights in North Carolina | The Nation. The Nation, 14 Aug. 2013. Web. 6 Jan. 2014. <http://www.thenation.com/blog/175761/three-questions-will-decide-fate- voting-rights-north-carolina#>.
Conservatives opposed to Section 5 of the Voting Rights Act strenuously made the argument before and after the Supreme Courts decision in Shelby County v. Holder that Section 2 was an adequate replacement for Section 5, which forced states with the worst !"# %&'()*#+, -#. /0"12, 3*4&(-&5 6789
!"#$%&'( *+&,-. 8:; history of voting discrimination to approve their voting changes with the federal government. Our decision in no way affects the permanent, nationwide ban on racial discrimination in voting found in Section 2, Chief Justice Roberts wrote for the majority. Testifying before the House, Hans van Spakovsky of the Heritage Foundation called Section 2 the heart of the VRA and said theres no reason for Congress to take any action to resurrect Section 5 with a new coverage map.
Argument: Since Section 2 is not an adequate replacement, the law should have been upheld.
Warrant: Section 2 is rarely used, is difficult to adjudicate in court.
Berman, Ari. "Three Questions That Will Decide the Fate of Voting Rights in North Carolina | The Nation." Three Questions That Will Decide the Fate of Voting Rights in North Carolina | The Nation. The Nation, 14 Aug. 2013. Web. 6 Jan. 2014. <http://www.thenation.com/blog/175761/three-questions-will-decide-fate- voting-rights-north-carolina#>.
This is a clever and disingenuous marketing job. In truth, Section 2 has been used mostly to challenge at-large election schemes and to protect majority-minority districts during redistricting, and has been narrowed in recent years by the Supreme Court, most recently in Bartlett v. Strickland in 2009. The Department of Justice hasnt filed a Section 2 lawsuit since 2009 and no major voting restrictions were blocked under Section 2 during the last election. Its difficult to challenge voting changes before they go into effect under Section 2 and the cases often take years and millions of dollars to defend. This is one of the fixes we need from Congress, says Spencer Overton, a professor at George Washington University Law School. We need some better, clearer standards for Section 2. The law is not well-developed. Moreover, the more cases that are filed under Section 2, the more likely it is that anti-VRA conservatives will challenge its constitutionality.
Warrant: Section 2 is only case by case and after the fact !"# %&'()*#+, -#. /0"12, 3*4&(-&5 6789
!"#$%&'( *+&,-. 8:9 Rosdeitcher, Sidney, and James Beha. "Supreme Court Preview: Constitutionality of the Preclearance and Coverage Provisions of the Voting Rights Act Reauthorization of 2006 | Brennan Center for Justice." Supreme Court Preview: Constitutionality of the Preclearance and Coverage Provisions of the Voting Rights Act Reauthorization of 2006 | Brennan Center for Justice. The Brennan Center for Justice, 15 Feb. 2013. Web. 3 Jan. 2014. <http://www.brennancenter.org/analysis/supreme-court-preview-constitutionality- preclearance-and-coverage-provisions-voting-rights>.
Among other things, Section 2 of the Act created a nationwide cause of action to enjoin voting practices or procedures that had the purpose or effect of denying or abridging the right to vote on account of race. Recognizing the limits of case-by-case, after-the-fact litigation, however, the Act also included prophylactic measures limited to those geographic areas with a history of such practices. Specifically, certain temporary provisions of the Act applied only to States and political subdivisions deemed covered under Section 4(b) of the Act. Under Section 4(b), a jurisdiction was covered if it maintained on November 1, 1964, any test or device prohibited under 4(b) and had less than 50 percent voter registration or participation as of the 1964 presidential election. These criteria were deliberately designed to capture the states of the old Confederacy with the worst history of racially discriminatory voting practices.
Warrant: Section 5 was preventing voting changes that would harm minorities in Texas.
Roth, Zachary. "How Section 5 blocked a GOP power grab in Texas." MSNBC. MSNBC, 6 June 2013. Web. 6 Jan. 2014. <http://www.msnbc.com/msnbc/how-section-5- blocked-gop-power-grab-tex>.
But Texas Republicans were eager to win back Davis seat and increase their Senate majority. And in 2011, they used their control of the redistricting process to improve their chances. !"# %&'()*#+, -#. /0"12, 3*4&(-&5 6789
!"#$%&'( *+&,-. 8:; Redistricting requires state and congressional district lines to be modified each decade to reflect the latest Census data. The GOP plan radically changed the demographic makeup of Davis district, among others, moving tens of thousands of black and Hispanic voters into neighboring districts. In fact, of the 94 precincts that were over 70% minority, Republicans cut out 48 (see maps of District 10 below). In the new map, blacks and Hispanics were placed in separate districts from each other and were outnumbered by the white conservative majority, which tends to vote Republican. Davis and her constituents had one recourse: The Voting Rights Act. Under Section 5 of the landmark civil-rights law, election changes made in certain areas with a history of discriminationincluding Texas and most other southern states can be blocked by the federal government if they might reduce the voting power of minorities.
Analysis: This argument is relatively straightforward part of the courts decision in Shelby revolved around the argument that section 2 of the VRA, which allows lawsuits if voting rights are infringed upon, is an adequate replacement for section 5. The difference, however, is that section 2 is retroactive, while section 5 is proactive. In other words, people can only sue after their rights are infringed. Thus, on the con side, you can make the argument that a proactive law is superior, and that without a proactive law, peoples rights, such as in Texas, will be infringed upon.
!"# %&'()*#+, -#. /0"12, 3*4&(-&5 6789
!"#$%&'( *+&,-. 8:; %<6 = >*1+?"# 6 "@ +A* BC% ?, -# D)E*&@*1+ C*E0-1*)*#+ Answer: Section 2 is actually a powerful tool to prevent discriminatory practices.
Warrant: The Justice Department is beginning to use status quo as a replacement to section 5.
Stephanopoulos, Nicholas. "New Research: The Part of the Voting Rights Act the Supreme Court Left Alone Works Better Than Expected." Slate Magazine. Slate Magazine, 23 Oct. 2013. Web. 6 Jan. 2014. <http://www.slate.com/articles/news_and_politics/jurisprudence/2013/10/section_2_of_t he_voting_rights_act_is_more_effective_than_expected_new_research.html>.
A voting rights battle royal began last month when the Department of Justice sued North Carolina over its restrictive new election law. DOJ alleged that the law, which imposes a photo ID requirement for voting, ends same-day voter registration, and cuts back on early voting, violates Section 2 of the Voting Rights Act. Earlier this summer the DOJ also filed two Section 2 suits against Texas, arguing that its photo ID law and electoral district maps are illegal.
Warrant: Though it is weaker than section 5, section 2 has a 50% success rate, and will be successful against photo-id laws in the future.
Stephanopoulos, Nicholas. "New Research: The Part of the Voting Rights Act the Supreme Court Left Alone Works Better Than Expected." Slate Magazine. Slate Magazine, 23 Oct. 2013. Web. 6 Jan. 2014. <http://www.slate.com/articles/news_and_politics/jurisprudence/2013/10/section_2_of_t he_voting_rights_act_is_more_effective_than_expected_new_research.html>.
As a shield against voting restrictions, however, Section 2 looks better than its reputation suggests. I counted 18 wins since 1982 in cases in which minority voters sued !"# %&'()*#+, -#. /0"12, 3*4&(-&5 6789
!"#$%&'( *+&,-. 8:; over tightened voter registration rules, absentee voting policies, polling place cutbacks, and the like. I also calculated a success rate of about 50 percent in these cases, which is higher than the 40 percent figure for all Section 2 suits. Slate contributor and UCIrvine law professor Richard Hasen has pointed out that there has yet to be a successful Section 2 challenge to a photo ID law. But only two such challenges have been decided so far (in Arizona and Georgia). And each failed because the plaintiffs couldnt show that minorities were less likely than whites to possess valid IDsproof that is now becoming more available. This means that Section 2 should be an increasingly useful weapon against the voting restrictions popping up around the country.
Analysis: This argument directly undercuts the argument that section 2 is ineffective. If it can be effective, then the courts reasoning was sound in undercutting section 5.
Answer: The crux of the decision was not about section 2, but rather about how section 4 was not based on modern criteria. Warrant: There is less racism now than before, the law was necessary before, but not now. Thernstrom, Abigail. "American Enterprise Institute." Redistricting, Race, and the Voting Rights Act. N.p., 6 Apr. 2010. Web. 3 Jan. 2014. <http://www.aei.org/article/society-and-culture/race-and-gender/redistricting-race-and- the-voting-rights-act/>.
During the 2006 Voting Rights Act reauthorization process, the House Judiciary Committee argued in its official report that Discrimination today is more subtle than the visible methods used in 1965. However, the effects and results are the same. Rarely in the rich annals of congressional deceit and self-deception have more false and foolish words been written. No meaningful evidence supported this extraordinary claim, which did a disservice to the nation by refusing to recognize the remarkable revolution in race relations that occurred in the second half of the 20th century. Without question, the Voting Rights Act of 1965 was essential to the demise of the Jim Crow South. It ended whites' exclusive hold on political power, which had made all other forms !"# %&'()*#+, -#. /0"12, 3*4&(-&5 6789
!"#$%&'( *+&,-. 8:; of southern racial subjugation possible. It was an indispensable and beautifully designed response to a profound moral wrong.
Warrant: African-American participation in government is high.
Thernstrom, Abigail. "American Enterprise Institute." Redistricting, Race, and the Voting Rights Act. N.p., 6 Apr. 2010. Web. 3 Jan. 2014. <http://www.aei.org/article/society-and-culture/race-and-gender/redistricting- race-and-the-voting-rights-act/>.
Consider that in 1964, only five blacks held seats in Congress--none from any southern state--and just 94 blacks served in any of the 50 state legislatures, with only 16 in the southern states that were home to half of the nation's black population. But largely as a consequence of race-conscious districting, the Congressional Black Caucus today has 42 members, 17 of them from the South. And as of 2008, almost 600 blacks held seats in state legislatures; another 8,800 were mayors, sheriffs, school-board members, and other officeholders. Fully 47% of these public officials lived in the seven states originally covered by the Voting Rights Act, even though those states now contain only 30% of the nation's black population. Especially striking is the fact that Mississippi--which once had a well-deserved reputation as the most white-supremacist stat e in the union--now leads the nation in the number of blacks elected to political office.
Analysis: This response is effective because it undercuts the whole premise of the cons argument. If the question in the debate is about constitutionality, then the court should really only examine the part of the VRA in question, not other parts of it.
Argument: The Voting Rights Amendment previously allowed for reevaluation that benefitted both states and citizens.
Warrant: The VRA has a temporal limitation that makes reauthorization necessary.
Justice Ginsburg. "SHELBY COUNTY v. HOLDER." Legal Information Institute. Cornell University Law School, 25 June 2013. Web. 04 Jan. 2014. <http://www.law.cornell.edu/supremecourt/text/12-96>.
Second, the very fact that reauthorization is necessary arises because Congress has built a temporal limitation into the Act. It has pledged to review, after a span of years (first 15, then 25) and in light of contemporary evidence, the continued need for the VRA.
Warrant: Legislative record works as a reference for future reauthorization.
Justice Ginsburg. "SHELBY COUNTY v. HOLDER." Legal Information Institute. Cornell University Law School, 25 June 2013. Web. 04 Jan. 2014. <http://www.law.cornell.edu/supremecourt/text/12-96>.
First, when reauthorization is at issue, Congress has already assembled a legislative record justifying the initial legislation. Congress is entitled to consider that preexisting record as well as the record before it at the time of the vote on reauthorization. This is especially true where, as here, the Court has repeatedly affirmed the statutes constitutionality and Congress has adhered to the very model the Court has upheld.
!"# %&'()*#+, -#. /0"12, 3*4&(-&5 6789
!"#$%&'( *+&,-. 677 Warrant: Law also allows Department of Justice to request more information that helps modify/withdraw a proposed change; this has helped improve a districts obligation of helping their minority citizens.
Justice Ginsburg. "SHELBY COUNTY v. HOLDER." Legal Information Institute. Cornell University Law School, 25 June 2013. Web. 04 Jan. 2014. <http://www.law.cornell.edu/supremecourt/text/12-96>.
In addition to blocking proposed voting changes through preclearance, DOJ may request more information from a jurisdiction proposing a change. In turn, the jurisdiction may modify or withdraw the proposed change. The number of such modifications or withdrawals provides an indication of how many discriminatory proposals are deterred without need for formal objection. Congress received evidence that more than 800 proposed changes were altered or withdrawn since the last reauthorization in 1982. H. R. Rep. No. 109478, at 4041. 4 Congress also received empirical studies finding that DOJs requests for more information had a significant effect on the degree to which covered jurisdictions compl[ied] with their obligatio[n] to protect minority voting rights.*
*Original source includes ellipsis
Warrant: Law gives jurisdictions the opportunity to bail out and bail into preclearance.
Justice Ginsburg. "SHELBY COUNTY v. HOLDER." Legal Information Institute. Cornell University Law School, 25 June 2013. Web. 04 Jan. 2014. <http://www.law.cornell.edu/supremecourt/text/12-96>.
Congress might have been charged with rigidity had it afforded covered jurisdictions no way out or ignored jurisdictions that needed superintendence. Congress, however, responded to this concern. Critical components of the congressional design are the statutory provisions allowing jurisdictions to bail out !"# %&'()*#+, -#. /0"12, 3*4&(-&5 6789
!"#$%&'( *+&,-. 678 of preclearance, and for court-ordered bail ins. See Northwest Austin, 557 U. S., at 199. The VRA permits a jurisdiction to bail out by showing that it has complied with the Act for ten years, and has engaged in efforts to eliminate intimidation and harassment of vot-ers. 42 U. S. C. 1973b(a) (2006 ed. and Supp. V). It also authorizes a court to subject a noncovered jurisdiction to federal preclearance upon finding that violations of the Fourteenth and Fifteenth Amendments have occurred there. 1973a(c) (2006 ed.).
Warrant: Bail in and out system effective.
Justice Ginsburg. "SHELBY COUNTY v. HOLDER." Legal Information Institute. Cornell University Law School, 25 June 2013. Web. 04 Jan. 2014. <http://www.law.cornell.edu/supremecourt/text/12-96>.
Nearly 200 jurisdictions have successfully bailed out of the preclearance requirement, and DOJ has consented to every bailout application filed by an eligible jurisdiction since the current bailout procedure became effective in 1984. Brief for Federal Respondent 54. The bail-in mechanism has also worked. Several jurisdictions have been subject to federal preclearance by court orders, including the States of New Mexico and Arkansas.
Warrant: Last reauthorization found evidence of continued racism in the jurisdictions.
Justice Ginsburg. "SHELBY COUNTY v. HOLDER." Legal Information Institute. Cornell University Law School, 25 June 2013. Web. 04 Jan. 2014. <http://www.law.cornell.edu/supremecourt/text/12-96>.
In the long course of the legislative process, Congress amassed a sizable record. The House and Senate Judiciary Committees held 21 hearings, heard from scores of witnesses, received a number of investigative reports and other written documentation of continuing discrimination in covered jurisdictions. In all, the legislative record Congress compiled filled more than 15,000 pages. The compilation presents countless examples !"# %&'()*#+, -#. /0"12, 3*4&(-&5 6789
!"#$%&'( *+&,-. 676 of flagrant racial discrimination since the last reauthorization; Congress also brought to light systematic evidence that intentional racial discrimination in voting remains so serious and widespread in covered jurisdictions that section 5 preclearance is still needed.
Warrant: Jurisdictions no longer subject to preclearance requirement.
Whitaker, L. Paige. "Congressional Redistricting and the Voting Rights Act: A Legal Overview." Congressional Research Service. Federation of American Scientists, 30 Aug. 2013. Web. 5 Jan. 2014. <http://www.fas.org/sgp/crs/misc/R42482.pdf>.
As a result of the Courts decision, the nine states, and jurisdictions within six states, that were previously covered under the formula are no longer subject to the VRAs preclearance requirement.
Warrant: There will be no political will to expand section 5 nationwide.
Berman, Ari. "What the Supreme Court Doesn't Understand About the Voting Rights Act The Nation." The Nation. The Nation, 25 June 2013. Web. 06 Jan. 2014. <http://www.thenation.com/blog/174973/what-supreme-court-doesnt-understand- about-voting-rights-act>.
There was no political will or necessity to expand Section 5 nationwide, and no objective statistical criteria could have added the most recent bad actors (Ohio and Florida) to the list of currently covered jurisdictions, wrote Nate Persily, a law professor at Columbia University. The fact that Section 5 was geographically targeted has always been seen as one of its constitutional saving graces.
Impact: Because it will be politically impossible to single out new districts, the VRA is no longer effective. !"# %&'()*#+, -#. /0"12, 3*4&(-&5 6789
!"#$%&'( *+&,-. 67: Shapiro, Ilya. "What Changes After Supreme Court Ruling On Voting Rights Act." National Public Radio. National Public Radio, 25 June 2013. Web. 5 Jan. 2014. <http://www.npr.org/2013/06/25/195557564/what-changes-after-supreme-court- ruling-on-voting-rights-act>.
That's why in 2006 they didn't adjust the coverage formula. Politically it would be impossible to single out new jurisdictions which have a greater risk of discriminating against minority voters. And so this is effectively the death of the Voting Rights Act but with the fig leaf that all that's being done here is asking Congress to tweak the coverage formula.
Analysis: Currently, the VRA has been constantly reauthorized so that it can adapt to different conditions. This has led to provisions such as the bail out and bail in program. The alternative is the creation of legislation that augments the act but political will does not seem to support that happening. In result, the Congress is no longer able to effectively enforce voter anti- discrimination measures.
Answer: Parts of the Voter Rights Act are still effective.
Warrant: Decision did not affect section three, bail in provision.
Whitaker, L. Paige. "Congressional Redistricting and the Voting Rights Act: A Legal Overview." Congressional Research Service. Federation of American Scientists, 30 Aug. 2013. Web. 5 Jan. 2014. <http://www.fas.org/sgp/crs/misc/R42482.pdf>.
As a result of the Courts decision, the nine states, and jurisdictions within six states, that were previously covered under the formula are no longer subject to the VRAs preclearance requirement. The covered states were: Alabama, Alaska, Arizona, Georgia, Louisiana, Mississippi, South Carolina, Texas, and Virginia. The six states containing covered jurisdictions were: California, Florida, Michigan, New York, North Carolina, and South Dakota.23 It does not appear, however, that the Courts decision affected Section 3(c) of the Act, known as the bail in provision, under which jurisdictions can be ordered to obtain preclearance of voting laws if a court finds that violations of the 14th or 15th Amendment justifying equitable relief have occurred.
Warrant: Section 2 is the core of the VRA.
Stephanopoulos, Nicholas. "The Future of the Voting Rights Act." Slate Magazine. Slate, 23 Oct. 2013. Web. 06 Jan. 2014. <http://www.slate.com/articles/news_and_politics/jurisprudence/2013/10/section_ 2_of_the_voting_rights_act_is_more_effective_than_expected_new_research.htm l>.
Section 2 is the VRAs core remaining prohibition of racial discrimination in voting. It bans practices that make it more difficult for minority voters to !"# %&'()*#+, -#. /0"12, 3*4&(-&5 6789
!"#$%&'( *+&,-. 67: participate in the political process and elect representatives of their choice. It applies to both redistricting (as in Texas) and voting restrictions (as in North Carolina). And it just became a whole lot more important thanks to the Supreme Courts June decision in Shelby County v. Holder, which neutered the VRAs other key provision, Section 5.
Warrant: Section 2 can be easily expanded by Congress.
Stephanopoulos, Nicholas. "The Future of the Voting Rights Act." Slate Magazine. Slate, 23 Oct. 2013. Web. 06 Jan. 2014. <http://www.slate.com/articles/news_and_politics/jurisprudence/2013/10/section_ 2_of_the_voting_rights_act_is_more_effective_than_expected_new_research.htm l>.
Congress could also strengthen Section 2 in a couple of ways. As to redistricting, lawmakers could amend the provision so that it applied to districts with odd shapes or with minority populations that were relatively small or heterogeneous. The idea would be for Section 2, like Section 5, to protect all districts in which minority voters are capable of electing their preferred candidates. And as to voting restrictions, Congress could make Section 2 a shield whenever a law harmed minority voters more than white voters. Unequal impact used to be enough to block a law under Section 5. It could be made the standard for Section 2 too.
Warrant: Section Two allows lawsuits to be brought by discrimination or civil rights statutes.
Burling, James. "What the Voting Rights Act Ruling Means for Voters." PBS. PBS, 5 July 2013. Web. 07 Jan. 2014. <http://www.pbs.org/newshour/bb/politics/july- dec13/vra_07-05.html>.
And I really think this does give us a good opportunity through Section 2 of the Voting Rights Act, which allows people to bring lawsuits if there are discrimination !"# %&'()*#+, -#. /0"12, 3*4&(-&5 6789
!"#$%&'( *+&,-. 67: problems, and through other civil rights statutes as well. I think that we can move forward. And this is a way of moving forward.
Impact: In the future, section two could be used to combat voter ID laws.
Stoughton, Kathleen M. "A New Approach to Voter ID Challenges: Section 2 of the Voting Rights Act." The George Washington Law Review. GW Law Review, Jan. 2013. Web. 7 Jan. 2014. <http://www.gwlr.org/wp- content/uploads/2013/01/Stoughton_81_1.pdf>.
This Note argues that a remedy can be found in section 2 of the Voting Rights Act: plaintiffs can challenge strict voter ID laws by showing that they so disproportionately affect minority voters that they dilute the vote of the minority group as a whole, effectively abridging the right to vote on account of race or color in violation of the Voting Rights Act.
Analysis: Instead of commonly looking to section four and five as the only effective parts of the VRA, you can also look to the second and third sections that still exist in the status quo. In result, these provisions can be improved and tailored to continue to have the benefits of the VRA but extend it to the entire nation. !"# %&'()*#+, -#. /0"12, 3*4&(-&5 6789
Argument: Since the Constitution is open to many competing interpretations the Supreme Court, SC, should only be able to strike down a law if it is unconstitutional beyond a reasonable doubt. In the case of section 4 of the Voting Rights Act it is clearly not unconstitutional beyond a reasonable doubt.
Warrant: Court not intended to have broad reviewing power.
Gabin, Sanford B. "Judicial Review, James Bradley Thayer, and the "Reasonable Doubt" Test." Hastings Constitutional Law Quarterly 3.4 (1976): 961-1014. Hastings Constitutional Law Quarterly. Web. 04 Jan. 2014. <http://www.hastingsconlawquarterly.org/archives/V3/I4/Gabin.pdf>.
Had a broader reviewing power been intended, Thayer argued, the judiciary would have been allowed to hand down advisory opinions prior to the enactment of legislation. The Philadelphia convention, however, declined to equate the Court with a council of revision. The absence of an immediate judicial judgment of an acts constitutionality reinforced the legislatures duty, imposed by the oath provision of article VI of the Constitution, to make that original and possibly final judgment. By the time constitutional questions reach the judiciary, the legislative decision might have accomplished results of the profoundest importance throughout the country. Thayer concluded that a power as momentous as the legislatures primary authority to interpret entitles the actual determination of the legislature to a corresponding respect; and this not on mere grounds of courtesy or conventional respect, but on very solid grounds of policy and law
Warrant: The SC undermines the democratic process.
!"# %&'()*#+, -#. /0"12, 3*4&(-&5 6789
!"#$%&'( *+&,-. 67: Posner, Richard A. "The Rise and Fall of Judicial Self Restraint." California Law Review100.3 (2012): 519-56. California Law Review. Web. 04 Jan. 2014. <http://www.californialawreview.org/assets/pdfs/100-3/01-Posner.pdf>.
More important, the law made me do it protestations that pepper his correspondence obscure the Darwinian streak that is so pronounced in his free- speech dissents
and in Buck v. Bell (Three generations of imbeciles are enough). For Holmes, political struggle was closely analogous to natural selectioneven an exemplification of it. The strongest would win. Not that they necessarily deserved to win, though he wanted the imbeciles to lose by not being allowed to reproduce and though he contemplated the Darwinian character of the social struggle with unmistakable relish.
Darwinism is a theory of adaptation, not of improvement. Judicial rulings invalidating modern liberal legislation might be wise or foolish but in either case they would merely delay the inevitable. The first requirement of a sound body of law is, that it should correspond with the actual feelings and demands of the community, whether right or wrong.
So judges should get out of the way of the struggle between unions and employers, socialists and capitalists, no matter which side the judges wanted to prevail. (Thayer shared Holmess disquietremarked emphatically in Holmess essay The Path of the Law, published four years after Thayers articlewith the tendency of the judges of his time to interpret the Constitution to forbid socialistic measures.) The democratic political process was merely the civilized (because nonviolent) method of registering the relative strength of the competing forces in societya substitute for civil war in much the same way that settlement is a substitute for trial.
Warrant: Laws should only be overruled when unconstitutional beyond a reasonable doubt.
Thayer, James B. "The Origin and Scope of the American Doctrine of Constitutional Law." Harvard Law Review 7.3 (1893): 129-56. American Memory. Library of Congress. Web. 04 Jan. 2014. <http://memory.loc.gov/service/gdc/scd0001/2007/20078131004or/20078131004 or.pdf>. !"# %&'()*#+, -#. /0"12, 3*4&(-&5 6789
!"#$%&'( *+&,-. 67:
I have accumulated these citations and run them back to the beginning, in order that it may be clear that the rule in question is something more than a mere form of language, a mere expression of courtesy and deference. It means far more than that. The courts have perceived with more or less distinctness that this exercise of the judicial function does in truth go far beyond the simple business which judges sometimes describe. If their duty were in truth merely and nakedly to ascertain the meaning of the text of the constitution and of the impeached Act of the legislature, and to determine, as an academic question, whether in the court's judgment the two were in conflict, it would, to be sure, be an elevated and important office, one dealing with great matters, involving large public considerations, but yet a function far simpler than it really is. Having ascertained all this, yet there remains a question -- the really momentous questionwhether, after all the court can disregard the Act. It cannot do this as a mere matter of course, -merely because it is concluded that upon a just and true construction the law is unconstitutional. That is precisely the significance of the rule of administration that the courts lay down. It can only disregard the Act when those who have the right to make laws have not merely made a mistake, but have made a very clear one, -so clear that it is not open to rational question. That is the standard of duty to which the courts bring legislative Acts; that is the test which they apply, -not merely their own judgment as to constitutionality, but their conclusion as to what judgment is permissible to another department which the constitution has charged with the duty of making it. This rule recognizes that, having regard to the great, complex, ever- unfolding exigencies of government, much which will seem unconstitutional to one man, or body of men, may reasonably not seem so to another; that the constitution often admits of different interpretations; that there is often a range of choice and judgment; that in such cases the constitution does not impose upon the legislature any one specific opinion, but leaves open this range of choice; and that whatever choice is rational is constitutional. This is the principle, which the rule that I have been illustrating affirms and supports. The meaning and effect of it are shortly and very strikingly intimated by a remark of Judge Cooley, to the effect that one who is a member of a legislature may vote against a measure as being, in his judgment, !"# %&'()*#+, -#. /0"12, 3*4&(-&5 6789
!"#$%&'( *+&,-. 687 unconstitutional; and, being subsequently placed on the bench, when this measure, having been passed by the legislature in spite of his opposition, comes before him judicially, may there find it his duty, although he has in no degree changed his opinion, to declare it constitutional.
Warrant: Section 4 of the voting rights act is not unconstitutional beyond a reasonable doubt.
Persily, Nathaniel. "The Promise and Pitfalls of the New Voting Rights Act." Yale Law Journal 117.174 (2007): 174-253. Web. 4 Jan. 2014. <http://yalelawjournal.org/images/pdfs/606.pdf>.
At the same time, any attempt to avoid disparate partisan treatment while reforming the coverage formula must also comply with the congruence and proportionality standard. In other words, the new coverage formula would have to be both politically fair and justifiable as preventing or remedying violations of voting rights. A slapdash choice of jurisdictions arising from a political compromise to balance out the partisan effects of a new coverage regime would be incongruent with the geography of voting rights violators almost by definition. As unsatisfying and constitutionally risky as resigning the VRA regime to its current geographical reach may be, tinkering with it would have invited a whole host of unknown problems. Whatever its drawbacks, the current coverage formula had the virtue of already having been upheld by the Supreme Court.150 While the coverage formula might be outdated, advocates for the law at least would have stare decisis on their side and could force the Court into the position of explaining why a previously constitutional law was now unconstitutional.
Analysis: While most arguments on this topic will focus on specific arguments about the constitutionality of section 4 of the VRA, arguments like this can open up new ground on an otherwise severely restricted resolution. In order to make sure the argument gives you offense you will need to warrant the final link that section 4 is not unconstitutional without a reasonable doubt. The card above serves to warrant this but simply pointing out that there is much debate over the decision and that the decision was 5-4 should probably be sufficient to convince a judge !"# %&'()*#+, -#. /0"12, 3*4&(-&5 6789
!"#$%&'( *+&,-. 688 of this. Despite its absence from current judicial practice, there is a myriad of literature on the merits of judicial restraint with Justice Holmes perhaps being its most notable proponent. By redefining the judicial framework of the SC this argument provides you with a couple of strategic advantages over the Pro. First, arguments about the judicial framework of the SC will obviously come before specific arguments about the VRA so this argument will be able to outweigh any specific arguments made by the Pro. At the very least this will serve as a major time suck as the Pro will likely need to block it to have a chance at winning. Second, since this argument lies outside the immediately obvious scope of the resolution it is likely that many Pro teams will simply not be prepared to engage this debate and thus you should have little trouble winning it.
Warrant: Thayerisms weakest parts have been largely rejected by current legal theorists.
Posner, Richard A. "The Rise and Fall of Judicial Self Restraint." California Law Review100.3 (2012): 519-56. California Law Review. Web. 04 Jan. 2014. <http://www.californialawreview.org/assets/pdfs/100-3/01-Posner.pdf>.
I have tried to explain the vulnerability of Thayerian theory (it might better be called a rhetoric than a theory), but I have not explained its death. It died on two fronts: in the academy (except for the handful of hyper- Thayerians), and in the courts. Its academic death is attributable in part to its incoherence, but more to the rise of the constitutional theories that I mentioned earlier, which claim to show how correct constitutional decisions can be generated confidently. They highlight the weakest part of Thayers theory: that it tells judges to uphold statutes that they consider unconstitutional. If they knew a statute was unconstitutional theyd have to strike it down even in Thayers account; and the modern theorists have proved (though only to their own satisfaction) that they can tell judges which outcomes in constitutional cases are correct and which incorrect. The rise in academics confidence that they have the keys to unlocking the Constitutions secrets is related to the vastly increased number of professors specializing in constitutional law (because the reach of that law expanded significantly during the 1960s and has continued to expand) and to the rising intellectual ambition of legal academics as they draw further and further apart from legal practice.
Analysis: This answers the argument for severe judicial restraint by attacking its academic legitimacy. Current legal theorists believe that even in complicated cases it is possible to rightly decided on constitutionality and thus it would be incoherent to rule something that is rightly believed to be unconstitutional as constitutional. !"# %&'()*#+, -#. /0"12, 3*4&(-&5 6789
!"#$%&'( *+&,-. 68:
Answer: Thayerism is empirically unrealistic.
Warrant: Imperfections of American politics undermine the theory.
Posner, Richard A. "The Rise and Fall of Judicial Self Restraint." California Law Review100.3 (2012): 519-56. California Law Review. Web. 04 Jan. 2014. <http://www.californialawreview.org/assets/pdfs/100-3/01-Posner.pdf>.
Brown v. Board of Education illustrates the Warren Courts activism, but it illustrates something else as wellthe empirical unreality of Thayerism. Think of how a Thayerian (Frankfurter, for example, an enthusiastic supporter of Brown) might defend the decision. He could argue that the legislatures that had enacted public school segregation and other racist legislation in the southern and border states could not be considered authentic popular bodies because the large black populations in those states had been effectively disfranchised. A similar argument could be made, in defense of Baker v. Carr, about malapportioned legislatures: malapportionment entrenches electoral minorities. But once one begins questioning Thayers sunny view of legislatures, there is no stopping point. The U.S. Senate is malapportioned. The American political process at all levels is corrupted by money, interest groups, public ignorance and apathy, and inherent limitations of representative democracy, in which the people vote for persons rather than for policies. Holmes was a realist in the tradition of Thrasymachus, who famously declared that everywhere justice is the same thing, the advantage of the stronger.
In a democracy, as in any other form of government, might ultimately prevails, although the identity of the mighty differs in a democracy. In America today the mighty are not oligarchs, aristocrats, or securities; they are the old people, the ubiquitous seniors with their subsidized public pensions and health care and propensity for single-issue voting. Judges, Holmes argued, had best get out of the juggernauts path, though on occasion a piece of legislation might be so revolting that they must take a stand. Holmess view of the legislative process is overdramatized, but comes closer to the truth than Thayers view of legislators as !"# %&'()*#+, -#. /0"12, 3*4&(-&5 6789
!"#$%&'( *+&,-. 689 constitutional deliberators who if only left alone by judges would legislate as statesmen. Frankfurter had, like Thayer, an exaggerated view of legislators ability and high- mindedness; Bickel thought them at least educable by Justices who shared his values.
Warrant: Legislatures not able to judge constitution.
Calabresi, Steven G. "Thayer's Clear Mistake." Northwestern University Law Review88.269 (1993): n. pag. Lexis Nexis. Web. 6 Jan. 2014. <http://www.lexisnexis.com.proxy.uchicago.edu/lnacui2api/api/version1/getDocC ui?oc=00240&hnsd=f&hgn=t&lni=3S3T-VYX0-00CW- 00BH&hns=t&perma=true&hv=t&hl=t&csi=7350&secondRedirectIndicator=true >. Moreover, legislatures are less disinterested than courts when it comes to enforcing constitutional limits on government power. While such limits generally apply to courts as well as to legislatures, it is nonetheless true that constitutional constraints tend to impinge far more on legislative power than on judicial power. Accordingly, when legislatures enforce constitutional guarantees they face an inherent conflict of interest. They become to some degree "judges in their own cause." n24 While it might be possible for legislators to triumph over the temptation created by this conflict of interest in ordinary times, they will probably not be able so to triumph when a momentary passion is sweeping the body politic. And yet it is precisely at such times that constitutional guarantees are most needed. Additionally, legislatures are notoriously and particularly incompetent at responding to the claims of individuals and small groups, since these entities tend to be less important in winning re-election. And yet it is particularly individuals and members of such groups who may need constitutional guarantees to protect against the tyranny of the majority. Generally speaking, legislators will focus their energy mostly on the claims of large populous interests, or on the claims of the wealthy and the powerful, since that tends to be the best route to re-election. Once again, courts do this to a lesser degree because judges possess life tenure and do not need to worry about re-election.
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!"#$%&'( *+&,-. 68:
Analysis: This shows that the theory of judicial restraint is faulty because it champions a legislature that is in reality corrupt, unrepresentative, and unqualified. A theory of judicial restraint so reliant on the legislature makes it hard to even consider Brown v. Board of Education as the right decision, which is a conclusion that is hard to be content with. Answer: Judicial review good for human rights.
Warrant: Progress in human rights inextricably linked to judicial review.
Chang, Wen-Chen. "Judicial Activism and Human Rights: A Comparative Approach in the Context of Transitions" Paper presented at the annual meeting of the The Law and Society Association, Renaissance Hotel, Chicago, Illinois, May 27, 2004 <Not Available>. 2009-05- 26 <http://www.allacademic.com/meta/p117220_index.html>
One of the most remarkable achievements in the twentieth-century is constitutional development is the assertion of human rights. On one hand, we have seen the codification and constitutionalization of human rights. On the other, constitutional or high courts of many countries have begun to implement human rights by way of judicial review. Consequently, an intertwined relationship between courts and human rights is established. It remains to be examined, however, for what reasons courts, instead of other political institutions, are linked to the assertion of human rights and what are the institutional backgrounds and normative foundations for such a relationship. !"# %&'()*#+, -#. /0"12, 3*4&(-&5 6789
Argument: The elections clause gives Congress broad Constitutional authority to make laws regulating federal elections.
Warrant: Text of the election clause.
Chin, Gabriel et al. Amicus Curiae for Shelby County v. U.S. American Bar Association. February 1, 2013. Web. January 6, 2014.< http://www.americanbar.org/content/dam/aba/publications/supreme_court_previe w/briefs-v2/12-96_resp_amcu_gcae-etal.authcheckdam.pdf>
The Elections Clause provides: The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of choosing Senators.
Warrant: Necessary and proper clause enhances the elections clause.
Chin, Gabriel et al. Amicus Curiae for Shelby County v. U.S. American Bar Association. February 1, 2013. Web. January 6, 2014.< http://www.americanbar.org/content/dam/aba/publications/supreme_court_previe w/briefs-v2/12-96_resp_amcu_gcae-etal.authcheckdam.pdf>
Id. Congress Elections Clause power is broad and plenary. Ex parte Siebold, 100 U.S. 371, 388 (1879). Congress enjoys general supervisory power over the whole subject of federal elections. Id. at 387. Like all other powers directly granted to Congress, Congress legislative authority over federal elections is enhanced by the Necessary and Proper Clause, which applies to all . . . powers vested by [the] Constitution in the government of the United States. U.S. Const. art. I, 8, cl. 18. In !"# %&'()*#+, -#. /0"12, 3*4&(-&5 6789
!"#$%&'( *+&,-. 68: combination with the Necessary and Proper Clause, Congress has the discretion to effect all means which are appropriate, MCulloch v. Maryland, 17 U.S. 316, 421 (1819), to meet the legitimate goal of protection of the integrity of elections. United States v. Classic, 313 U.S. 299, 319 (1941) (internal quotation marks omitted). Section 5 is a legitimate exercise of Congress authority to protect the integrity of federal elections. This Court should not disturb it.
Warrant: Supreme court precedent has given Congress broad power through elections clause.
Smiley v. Holm. Supreme Court of the United States. 11 Apr. 1932. Bloomberg Law. Web. 06 Jan. 2014. <http://www2.bloomberglaw.com/public/desktop/document/Smiley_v_Holm_285 _US_355_52_S_Ct_397_76_L_Ed_795_1932_Court_Opini/1>.
Consideration of the subject matter and of the terms of the provision requires affirmative answer. The subject matter is the "times, places and manner of holding elections for Senators and Representatives." It cannot be doubted that these comprehensive words embrace authority to provide a complete code for congressional elections, not only as to times and places, but in relation to notices, registration, supervision of voting, protection of voters, prevention of fraud and corrupt practices, counting of votes, duties of inspectors and canvassers, and making and publication of election returns; in short, to enact the numerous requirements as to procedure and safeguards which experience shows are necessary in order to enforce the fundamental right involved. And these requirements would be nugatory if they did not have appropriate sanctions in the definition of offenses and punishments. All this is comprised in the subject of "times, places and manner of holding elections" and involves lawmaking in its essential features and most important aspect.
Warrant: Elections clause is not limited by state sovereignty.
!"# %&'()*#+, -#. /0"12, 3*4&(-&5 6789
!"#$%&'( *+&,-. 68: Chin, Gabriel et al. Amicus Curiae for Shelby County v. U.S. American Bar Association. February 1, 2013. Web. January 6, 2014.< http://www.americanbar.org/content/dam/aba/publications/supreme_court_previe w/briefs-v2/12-96_resp_amcu_gcae-etal.authcheckdam.pdf>
Our Constitution split the atom of sovereignty. U.S. Term Limits, 514 U.S. at 838 (Kennedy, J., concurring). Both the federal and state governments possess spheres of ultimate sovereign authority. History is full of difficult cases and heated, even bloody, disputes over where to draw the line between federal and state sovereign authority. But when it comes to the authority over the regulations and means for electing federal legislators, there is and has never been any doubt: Congress is sovereign. 5 When it acts pursuant to its Elections Clause authority, Congress is not intruding on state sovereign authority, even when it replaces or alters laws that the states, in the first instance, had the authority (in fact, obligation) to adopt. State sovereignty provides no limit on the authority of Congress to act pursuant to the Elections Clause.
Warrant: Case is facial challenge making election clause sufficient for constitutionality.
Tokaji, Daniel. "Shelby County v. Holder: Don't Forget the Elections Clause."SCOTUSblog RSS. Bloomberg Law, 13 Feb. 2013. Web. 06 Jan. 2014. <http://www.scotusblog.com/2013/02/shelby-county-v-holder-dont-forget-the- elections-clause/>.
To be sure, there are some applications of Section 5 to state and local redistricting plans, for example that cant be justified under the Elections Clause. But remember, Shelby County has brought a facial challenge to the VRAs preclearance requirements. Such challenges are disfavored because they run contrary to established principles of judicial restraint. A facial challenge should be rejected where there are some circumstances in which a statute may constitutionally be applied. Like other local electoral jurisdictions, Shelby County administers federal !"# %&'()*#+, -#. /0"12, 3*4&(-&5 6789
!"#$%&'( *+&,-. 68: elections as well as state and local elections. The Elections Clause is therefore a sufficient basis upon which to reject Shelby Countys facial challenge without considering the scope of Congresss power under the Fourteenth and Fifteenth Amendments.
Analysis: The elections clause will be perhaps an underutilized argument by competitors, since the Supreme Court decision never makes direct mention of it. There is, however, both Supreme Court precedent and current legal opinion that views the elections clause as sufficient to uphold the constitutionality of the coverage formula. This is especially true because Shelby County brought a facial challenge to section 5 of the Voting Rights Act. This means that the plaintiff must prove the law unconstitutional in all situations, not just in their applied situation. Competitors will be able to demonstrate impressive knowledge of constitutional challenges to judges if they possess a good grasp over the difference between facial and as-applied challenges.
Answer: States should retain power in regulating elections.
Warrant: Framers and precedent give power to states.
Shelby County v. Holder. 570 U.S. __.Supreme Court of the United State. 2013. Supremecourt.gov. Web. 1/3/2014. <http://www.supremecourt.gov/opinions/12pdf/12-96_6k47.pdf>
More specifically, the Framers of the Constitution intended the States to keep for themselves, as provided in the Tenth Amendment, the power to regulate elections. Gregory v. Ashcroft, 501 U. S. 452, 461462 (1991) (quot- ing Sugarman v. Dougall, 413 U. S. 634, 647 (1973); some internal quotation marks omitted). Of course, the Federal Government retains significant control over federal elections. For instance, the Constitution authorizes Congress to establish the time and manner for electing Senators and Representatives. Art. I, 4, cl. 1; see also Arizona v. Inter Tribal Council of Ariz., Inc., ante, at 46. But States have broad powers to determine the conditions under which the right of suffrage may be exercised. Carrington v. Rash, 380 U. S. 89, 91 (1965) (internal quotation marks omitted); see also Arizona, ante, at 1315. And [e]ach State has the power to prescribe the qualifications of its officers and the manner in which they shall be chosen. Boyd v. Nebraska ex rel. Thayer, 143 U. S. 135, 161 (1892). Drawing lines for congressional districts is likewise primarily the duty and responsibility of the State. Perry v. Perez, 565 U. S. ___, ___ (2012) (per curiam) (slip op., at 3) (internal quotation marks omitted).
Analysis: This provides precedent that states remain some power in regulating elections, such that the elections clause should not completely override equal sovereignty.
Answer: Elections clause does not justify all of preclearance. !"# %&'()*#+, -#. /0"12, 3*4&(-&5 6789
!"#$%&'( *+&,-. 668
Warrant: A decision on just the election clause would leave preclearance open to future challenges.
Tokaji, Daniel. "Shelby County v. Holder: Don't Forget the Elections Clause."SCOTUSblog RSS. Bloomberg Law, 13 Feb. 2013. Web. 06 Jan. 2014. <http://www.scotusblog.com/2013/02/shelby-county-v-holder-dont-forget-the- elections-clause/>.
Its true that a ruling based only on the Elections Clause would leave open the possibility of VRA preclearance being challenged piecemeal in the future. For example, a covered jurisdiction might challenge the statutes application to state or local redistricting plans. At that point, the Fourteenth and Fifteenth Amendment questions would have to be addressed. Its possible that the Court would ultimately conclude that some applications of the statute exceed Congresss authority as to some state or local jurisdictions. But again, the Court shouldnt declare VRA preclearance facially unconstitutional, if it concludes that the Elections Clause authorizes some applications of the statute. For supporters of preclearance, that would be a much better outcome than having Sections 4(b) and 5 struck down on their face.
Warrant: Elections clause does not justify certain types of preclearance.
Balkin, Jack. "Balkinization: Teaching Materials for Shelby County v. Holder."Balkinization: Teaching Materials for Shelby County v. Holder. 20 July 2013. Web. 06 Jan. 2014. <http://balkin.blogspot.com/2013/07/teaching- materials-for-shelby-county-v.html>.
Could Congress have passedor could it reenactsection 4 of the Voting Rights Act under the Elections Clause? Note that under the Elections Clause, Congress could not require preclearance of changes in voting rules affecting only state and local government officesand a very large number of preclearance issues concern !"# %&'()*#+, -#. /0"12, 3*4&(-&5 6789
!"#$%&'( *+&,-. 666 elections for state and local officials. In addition, Congress could not require preclearance of changes in voter eligibility rules, only changes in the way that states proved eligibility to register or vote, the kinds of voting machines used, the number and location of polling places, the hours and days available for polling, and so on. For example, Congress could probably not require preclearance of voting rules that disenfranchise felons, but it might be able to regulate how states purge voter rolls of suspected felons and non-citizens.
Analysis: This first card doesnt necessarily respond to the arguments about the elections clause being sufficient to overcome a facial challenge. If your opponent however does not have a good grasp over explaining facial challenges this may be sufficient to show that the elections clause does not justify all of the preclearance requirements. If reading the first card, however, please be prepared to acknowledge that Tokaji does indeed believe that the Supreme Court made the wrong decision. You will need to perhaps supply your own analysis to overcome arguments about the facial challenge. !"# %&'()*#+, -#. /0"12, 3*4&(-&5 6789
Argument: Section Five is the enforcement clause of the unequal and unconstitutional elements of the VRA, not Section Four.
Warrant: Section 5 is the pre-clearance clause of the VRA.
Roth, Zachary. "Supreme Court Guts Landmark Civil Rights Law." Msnbc. Nbc Universal, 25 June 2013. Web. 07 Jan. 2014. <http://www.msnbc.com/msnbc/supreme-court-guts-landmark-civil-rights-law>.
Section 5 of the Voting Rights Act requires that certain jurisdictions with a history of racial discrimination, including most southern states, submit any changes to their election systems to the U.S. Justice Department for pre-clearance.
Warrant: Section 5 meant to supplement and specifically use the goals of section 2 in certain areas.
Shapiro, Ilya. "The Voting Rights Act Doesnt Reflect Current Political Conditions." Cato Institute. Cato Institute, 27 Feb. 2013. Web. 07 Jan. 2014. <http://www.cato.org/publications/commentary/voting-rights-act-doesnt-reflect- current-political-conditions>.
Moreover, it is Section 2the nationwide ban on racial discrimination in voting that is the heart of the Voting Rights Act. Section 5, meanwhile, was a temporary tool that supplemented Section 2 and overcame widespread and persistent discrimination in votingthus eliminating the extraordinary circumstances that originally justified it.
Warrant: Conditions necessary for Section 5 no longer met. !"# %&'()*#+, -#. /0"12, 3*4&(-&5 6789
!"#$%&'( *+&,-. 669 Justice Ginsburg. "SHELBY COUNTY v. HOLDER." Legal Information Institute. Cornell University Law School, 25 June 2013. Web. 04 Jan. 2014. <http://www.law.cornell.edu/supremecourt/text/12-96>.
Though 5s preclearance requirement represented a shar[p] depart[ure] from basic principles of federalism and the equal sovereignty of the States, ante, at 9, 11, the Court upheld the measure against early constitutional challenges because it was necessary at the time to address voting discrimination where it persist[ed] on a pervasive scale.
Today, our Nation has changed. [T]he conditions that originally justified [5] no longer characterize voting in the covered jurisdictions.
Warrant: Section 5 is an expansion of federal power that is no longer needed.
Weinstein, Matthew. "Beyond the Sensationalism." Harvard Political Review RSS. Harvard Political Review, 18 May 2013. Web. 06 Jan. 2014. <http://harvardpolitics.com/united-states/beyond-the-sensationalism/>.
Section 5 is widely considered a vast expansion of federal power, necessary to prevent voter discrimination in the 1960s. Nevertheless, preclearance significantly intrudes upon traditional state powers to set voting standards. Such an intrusion may no longer be justified in light of reduced levels of discrimination. Ilya Shapiro, senior fellow of constitutional studies at the Cato Institute, described preclearance to the HPR as a big blunt intrusion into state powers that was outside the constitutional norm and originally justified by the exceptional conditions on the ground.
Impact: The level of discrimination in the 21 st century is no longer proportional to Section 5.
Pitts, Michael J. "Section 5 Of The Voting Rights Act: A Once And Future Remedy?" Denver University Law Review. Robert H. McKinney School of Law, 19 Apr. !"# %&'()*#+, -#. /0"12, 3*4&(-&5 6789
However, because the level of purposeful discrimination in voting has by all accounts diminished, the Court, especially one with a generally conservative federalist bent, seems unlikely to find the same unique and stringent Section 5 remedy initially passed in 1965 to be congruent and proportional to the modern-day dilemma of voting discrimination.
Analysis: Section 4 merely acted as a list of countries that section five rules would abide to. By not ruling section five unconstitutional in conjunction with Section 4, the Court did not rightfully eliminate the unequal and outdated elements of the VRA. !"# %&'()*#+, -#. /0"12, 3*4&(-&5 6789
Answer: Section 5 is a crucial part of the fourteenth amendment, unlike section 4.
Warrant: Multiple parts of the fourteenth amendment are focused on preclearance of certain states.
Reed Amar, Akhil. "The Lawfulness of Section 5 and Thus of Section 5." Harvard Law Review Forum. Harvard Law Review, 2013. Web. 06 Jan. 2014. <http://www.harvardlawreview.org/issues/126/february13/forum_989.php>.
But if section 5 of the VRA is unconstitutional, why wasnt section 5 of the Fourteenth Amendment itself unconstitutional? For that section and indeed every section of the Fourteenth Amendment was itself adopted by a process in which certain states were subject to a kind of selective preclearance. In the very process by which section 5 and the rest of the Fourteenth Amendment were adopted, certain states with sorry electoral track records were obliged to get preapproval from federal officials in order to do things that other states with cleaner electoral track records were allowed to do automatically.
Answer: Section 5 was invalidated when section four was ruled unconstitutional.
Warrant: Multiple parts of the fourteenth amendment are focused on preclearance of certain states.
Whitaker, L. Paige. "Congressional Redistricting and the Voting Rights Act: A Legal Overview." Congressional Research Service. Federation of American Scientists, 30 Aug. 2013. Web. 5 Jan. 2014. <http://www.fas.org/sgp/crs/misc/R42482.pdf>.
!"# %&'()*#+, -#. /0"12, 3*4&(-&5 6789
!"#$%&'( *+&,-. 66: Although the Court invalidated only the coverage formula in Section 4, by extension, Section 5 has been rendered currently inoperable. As a result, the nine states and six jurisdictions previously covered under the formula are no longer subject to the VRAs preclearance requirement.
Warrant: Section 5 does not have significance without section four.
Liptak, Adam. "Supreme Court Invalidates Key Part of Voting Rights Act." The New York Times. The New York Times, 25 June 2013. Web. 5 Jan. 2014. <http://www.nytimes.com/2013/06/26/us/supreme-court- ruling.html?pagewanted=all&_r=0>.
The decision did not strike down Section 5, but without Section 4, the later section is without significance unless Congress passes a new bill for determining which states would be covered.
Answer: Section 5 has successfully pre-cleared a significant amount of racially discriminatory laws in the covered districts.
Warrant: There were more preclearance objections in covered jurisdictions between 1982 and 2004 than there were from 1965 and 1982.
Machen, Ronald C. "Memorandum Of Law In Opposition To Plaintiffs Motion For Summary Judgment And In Support Of Defendants Motion For Summary Judgment." Department of Justice. Department of Justice, 25 June 2012. Web. 5 Jan. 2014. <http://www.justice.gov/crt/about/app/briefs/floridabrief.pdf>.
It also found further categories of evidence that supported Congresss conclusion that intentional racial discrimination in voting remains serious and widespread and that Section 5 preclearance is still needed: !"# %&'()*#+, -#. /0"12, 3*4&(-&5 6789
!"#$%&'( *+&,-. 66: Over 700 objections by the Attorney General between 1982 and mid-2006, including at least 423 purpose-based objections between 1980 and 2004; A consistent number of objections both pre-and post-1982 Reauthorization, including 626 objections from 1982 to 2004 and 490 between 1965 and 1982;
Analysis: Depending on the strategy you have present in your case, you can either differentiate the importance of section five from section four, argue that section five was invalidated by the unconstitutional ruling of four, or outweigh the harms of government intrusion with the amount of objections the preclearance clause has raised.
Argument: The Supreme Court has ruled that the coverage formula is constitutional in the past because it was necessary to address voting discrimination. Preclearance is still necessary to combat voting discrimination and thus the logic should still be constitutional.
Warrant: Roberts concedes that coverage formula was rightly called constitutional in past.
Shelby County v. Holder. 570 U.S. __.Supreme Court of the United State. 2013. supremecourt.gov. Web. 1/3/2014. <http://www.supremecourt.gov/opinions/12pdf/12-96_6k47.pdf>
The Voting Rights Act of 1965 employed extraordinary measures to address an extraordinary problem. Section 5 of the Act required States to obtain federal permission before enacting any law related to votinga drastic departure from basic principles of federalism. And 4 of the Act applied that requirement only to some Statesan equally dramatic departure from the principle that all States enjoy equal sovereignty. This was strong medicine, but Congress determined it was needed to address entrenched racial discrimination in voting, an insidious and pervasive evil which had been perpetuated in certain parts of our country through unremitting and ingenious defiance of the Constitution. South Carolina v. Katzenbach, 383 U. S. 301, 309 (1966). As we explained in upholding the law, exceptional conditions can justify legislative measures not otherwise appropriate. Id., at 334. Reflecting the unprecedented nature of these measures, they were scheduled to expire after five years. See Voting Rights Act of 1965, 4(a), 79 Stat. 438.
Warrant: The legislative record to warrant the 2006 reauthorization is vast.
!"# %&'()*#+, -#. /0"12, 3*4&(-&5 6789
!"#$%&'( *+&,-. 6:7 Shelby County v. Holder. 570 U.S. __.Supreme Court of the United State. 2013. supremecourt.gov. Web. 1/3/2014. http://www.supremecourt.gov/opinions/12pdf/12-96_6k47.pdf
The number of discriminatory changes blocked or deterred by the preclearance requirement suggests that the state of voting rights in the covered jurisdictions would have been significantly different absent this remedy. Surveying the type of changes stopped by the preclearance procedure conveys a sense of the extent to which 5 continues to protect minority voting rights. Set out below are characteristic examples of changes blocked in the years leading up to the 2006 reauthorization: In 1995, Mississippi sought to reenact a dual voter registration system, which was initially enacted in 1892 to disenfranchise Black voters, and for that reason, was struck down by a federal court in 1987. H. R. Rep. No. 109478, at 39. Following the 2000 census, the City of Albany, Georgia, proposed a redistricting plan that DOJ found to be designed with the purpose to limit and retrogress the increased black voting strength . . . in the city as a whole. Id., at 37 (internal quotation marks omitted). In 2001, the mayor and all-white five-member Board of Aldermen of Kilmichael, Mississippi, abruptly canceled the towns election after an unprecedented number of African-American candidates announced they were running for office. DOJ required an election, and the town elected its first black mayor and three black aldermen. Id., at 3637. In 2006, this Court found that Texas attempt to re- draw a congressional district to reduce the strength of Latino voters bore the mark of intentional dis- crimination that could give rise to an equal protection violation, and ordered the district redrawn in compliance with the VRA. League of United Latin American Citizens v. Perry, 548 U.S. 399, 440 (2006). In response, Texas sought to undermine this Courts order by curtailing early voting in the district, but was blocked by an action to enforce the 5 preclearance requirement.
Warrant: Preclearance rejection data under representative of attempted discrimination.
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!"#$%&'( *+&,-. 6:8 Persily, Nathaniel. "The Promise and Pitfalls of the New Voting Rights Act." Yale Law Journal 117.174 (2007): 174-253. Web. 4 Jan. 2014. <http://yalelawjournal.org/images/pdfs/606.pdf>.
A better indicator of section 5s deterrent effect, however, might be the number of DOJ Requests for More Information (MIRs) and the rate of withdrawal of voting changes pursuant to such requests.106 After all, the fact that the preclearance regime leads to few denials could simply mean that the section is working as intended. Like any other law, section 5s effectiveness should not be evaluated by the number of times it is broken. The Voting Section of the Civil Rights Division files a Request for More Information when the submission from the jurisdiction does not provide all the information needed to evaluate the potential retrogressive effect of a voting change.107 An MIR also represents a DOJ signal that the voting change might be found retrogressive (and denied preclearance) unless the jurisdiction allays the DOJs concerns. Since 1982, DOJ has sent over 800 requests for more information regarding voting changes, leading jurisdictions to withdraw their submissions in 205 instances and change their submissions in many others.108 Again, as a total share of preclearance submissions, this represents a small fraction, but it gives a sense of how many dogs did not bark as a result of the threat of a denial of preclearance.
Analysis: This may be a stock argument but it can certainly be an effective one if argued well. There are tons of examples and empirical evidence pointing to the fact that the preclearance requirements are still working and necessary to prevent voter discrimination in the regions covered by section 4s coverage formula. Remember that the coverage formula was ruled Constitutional in the original VRA so you should make sure to point out that it is the Pros burden to prove sufficient improvement since then.
Warrant: The coverage formula doesnt cover some of the worst offenders.
Persily, Nathaniel. "The Promise and Pitfalls of the New Voting Rights Act." Yale Law Journal 117.174 (2007): 174-253. Web. 4 Jan. 2014. <http://yalelawjournal.org/images/pdfs/606.pdf>.
Nothing akin to the neutral triggers of past reauthorizations could have achieved that easily. Those seeking to expand coverage struggled to find a formula similar to the existing one that would capture an appropriate group of jurisdictions while passing constitutional muster and not giving rise to concerted political opposition. That turned out to be an impossible task. As described above, voter turnout rates (either in the aggregate or racial disparities) would not do so,146 nor would a history of successful voting rights lawsuits (for example, cover all those jurisdictions that had been found guilty of a violation of section 2 of the VRA). Moreover, no objective statistical criteria could have added the most recent bad actors (Ohio and Florida) to the list of currently covered jurisdictions. Indeed, as Richard Pildes has argued, the bad actors of recent elections were discovered principally after the fact when a competitive election and subsequent litigation exposed the problems in those states election laws and administration.
Analysis: This proves both that circumstances have changed since 1965 and thus that the current coverage formula is outdated, and also that the current coverage formula is not still effective in stopping voter discrimination across the entire country . Answer: Covered districts not unique from uncovered districts.
!"# %&'()*#+, -#. /0"12, 3*4&(-&5 6789
!"#$%&'( *+&,-. 6:: Warrant: Covered and uncovered districts have similar voter turnout rates.
Persily, Nathaniel. "The Promise and Pitfalls of the New Voting Rights Act." Yale Law Journal 117.174 (2007): 174-253. Web. 4 Jan. 2014. <http://yalelawjournal.org/images/pdfs/606.pdf>.
For the 2006 reauthorization, voter registration and turnout statistics either aggregate registration and turnout by state or differential registration and turnout by racial group did not help the cause much.84 Turnout rates in the covered and uncovered jurisdictions do not differ consistently.85 Both the House and the Senate Reports also noted the remarkable decrease in differential registration and turnout rates among racial groups. The Senate Report emphasized success, noting that in some covered jurisdictions (California, Georgia, North Carolina, Mississippi, and Texas) African American turnout exceeded that of whites.86 The House Report also noted success, but made express findings as to differential turnout rates for African Americans in Virginia and South Carolina, and Hispanics in Texas and Florida, that provided evidence of the continued need for section 5.
Warrant: This is the standard for constitutionality.
Shelby County v. Holder. 570 U.S. __.Supreme Court of the United State. 2013. supremecourt.gov. Web. 1/3/2014. http://www.supremecourt.gov/opinions/12pdf/12-96_6k47.pdf
We explained that 5 imposes substantial federalism costs and differentiates between the States, despite our historic tradition that all the States enjoy equal sovereignty. Id., at 202, 203 (internal quotation marks omitted). We also noted that [t]hings have changed in the South. Voter turnout and registration rates now approach parity. Blatantly discriminatory evasions of federal decrees are rare. And minority candidates hold office at unprece- dented levels. Id., at 202. Finally, we questioned whether the problems that 5 meant to address were still concen- trated in !"# %&'()*#+, -#. /0"12, 3*4&(-&5 6789
!"#$%&'( *+&,-. 6:9 the jurisdictions singled out for preclearance. Id., at 203.
Analysis: This shows that the VRA has achieved its purpose since 1965 and that the coverage formula is no longer up to date as the covered jurisdictions no longer have generally less minority turnout. The first card does mention that there were still problems in Virginia and South Carolina but that does not justify the coverage formula covering all the other jurisdictions.
Answer: The VRA has sufficiently achieved its goal no longer needed.
Warrant: The rate of preclearance denials has decreased.
Persily, Nathaniel. "The Promise and Pitfalls of the New Voting Rights Act." Yale Law Journal 117.174 (2007): 174-253. Web. 4 Jan. 2014. <http://yalelawjournal.org/images/pdfs/606.pdf>.
Despite large increases in the volume of preclearance requests, the rate and absolute number of DOJ denials of preclearance have declined in recent years. Although the total number of preclearance denials (682) was greater for the twenty-five years after the 1982 amendments than during the first seventeen years of the VRA,100 the rate of DOJ objections to preclearance requests has decreased from over 4% in the first five years after the Voting Rights Act, to between 0.05% and 0.23% from 1983 to 2002.101 With only ninety-two total objections in the last ten years, the annual objection rate since the mid-1990s has dropped to an average of less than 0.2%.
Analysis: This shows that the preclearance process is no longer as necessary as it was in the years immediately following the VRA. This demonstrates the necessary change since the VRA, such that the circumstances are no longer as drastic to demand the measures of the coverage formula.
Argument: Department of Justice uses bad behavior in judging preclearance. !"# %&'()*#+, -#. /0"12, 3*4&(-&5 6789
!"#$%&'( *+&,-. 6:;
Warrant: They are lobbied by leftist groups.
Adams, Christian. "Shelby County v. Holder: Bad Behavior by DOJ Contributes to the Fall of Section 5." SCOTUSblog RSS. Bloomberg Law, 12 Feb. 2013. Web. 06 Jan. 2014. <http://www.scotusblog.com/2013/02/shelby-county-v-holderbad- behavior-by-doj-contributes-to-the-fall-of-section-5/>.
First, the long record of abuse of power by Justice Department lawyers enforcing Section 5 is a constitutional disgrace. Abuse, you ask? Yes, the DOJ has been forced to pay hundreds of thousands of dollars in sanctions because of its corrupt collaboration with leftist third-party groups in Section 5 reviews. And thats just for starters. Substantively, the DOJ has again returned to the good old days of collaboration and black-max, impermissibly granting extraordinary access to the process to certain organizations. DOJ has also adopted indefensible and opaque substantive guidelines, such as a reverse Arlington Heights inquiry on the intent prong of Section 5. It demands that states prove a circumstantial negative. This abuse of power was evident in the photo identification cases in Texas and South Carolina. DOJ demanded evidence of copious voter fraud as circumstantial proof of lack of discriminatory intent. This was but one outlandish theory ultimately rejected entirely by the district court. But DOJ continues to abuse its power in other ways, continuing to require states and counties to prove a negative, and to prove an absence of circumstantial evidence of discriminatory intent. This abuse is compounded by the fact many of the lawyers conducting the DOJ inquiry come from activist backgrounds wholly at odds with an objective and fair-minded evidentiary inquiry.
Analysis: This arguments shows that the current system of preclearance is not conducted in such a way that is fair to continue. The states covered by the coverage formula are unfairly treated to the point where they are harmed and equal sovereignty is violated.
Argument: Removal of section four voids the effectiveness of the VRA, thus eliminating the progress made to prevent voter discrimination.
Warrant: Ruling section 4 unconstitutional made section 5, in addition, and the preclearance rules invalid.
Liptak, Adam. "Supreme Court Invalidates Key Part of Voting Rights Act." The New York Times. The New York Times, 25 June 2013. Web. 5 Jan. 2014. <http://www.nytimes.com/2013/06/26/us/supreme-court- ruling.html?pagewanted=all&_r=0>.
The decision did not strike down Section 5, but without Section 4, the later section is without significance unless Congress passes a new bill for determining which states would be covered.
Warrant: Section 5 requires that states have voting procedures approved by the government.
Peralta, Eyder, Scott Neuman, and Mark Memmott. "Supreme Court Strikes Down Key Provision Of Voting Rights Law." National Public Radio. NPR, 25 June 2012. Web. 05 Jan. 2014. <http://www.npr.org/blogs/thetwo- way/2013/06/25/195506795/supreme-court-strikes-down-key-provision-of- voting-rights-law>.
As the AP explains it, the Supreme Court has essentially decided that Section 5 of the act the part that requires certain states with a history of discrimination to have changes to any voting procedures approved by the federal government cannot be enforced until Congress "comes up with a new way of determining which states and localities require federal monitoring of elections." !"# %&'()*#+, -#. /0"12, 3*4&(-&5 6789
!"#$%&'( *+&,-. 6:;
Warrant: It is politically impossible to redefine what jurisdictions should now be covered by the VRA.
Shapiro, Ilya. "What Changes After Supreme Court Ruling On Voting Rights Act." National Public Radio. National Public Radio, 25 June 2013. Web. 5 Jan. 2014. <http://www.npr.org/2013/06/25/195557564/what-changes-after-supreme-court- ruling-on-voting-rights-act>.
That's why in 2006 they didn't adjust the coverage formula. Politically it would be impossible to single out new jurisdictions which have a greater risk of discriminating against minority voters. And so this is effectively the death of the Voting Rights Act but with the fig leaf that all that's being done here is asking Congress to tweak the coverage formula.
Warrant: The most effective part of the VRA is the federal preclearance.
Justice Ginsburg. "SHELBY COUNTY v. HOLDER." Legal Information Institute. Cornell University Law School, 25 June 2013. Web. 04 Jan. 2014. <http://www.law.cornell.edu/supremecourt/text/12-96>.
[V]oting discrimination still exists; no one doubts that. Ante, at 2. But the Court today terminates the remedy that proved to be best suited to block that discrimination. The Voting Rights Act of 1965 (VRA) has worked to combat voting discrimination where other remedies had been tried and failed. Particularly effective is the VRAs requirement of federal preclearance for all changes to voting laws in the regions of the country with the most aggravated records of rank discrimination against minority voting rights.
!"# %&'()*#+, -#. /0"12, 3*4&(-&5 6789
!"#$%&'( *+&,-. 6:; Impact: Absent of the preclearance, the districts would likely have a different state of voting rights.
Justice Ginsburg. "SHELBY COUNTY v. HOLDER." Legal Information Institute. Cornell University Law School, 25 June 2013. Web. 04 Jan. 2014. <http://www.law.cornell.edu/supremecourt/text/12-96>.
The number of discriminatory changes blocked or deterred by the preclearance requirement suggests that the state of voting rights in the covered jurisdictions would have been significantly different absent this remedy.
Impact: VRA has made progress in eliminating first-generation barriers but second-generation barriers still exist.
Justice Ginsburg. "SHELBY COUNTY v. HOLDER." Legal Information Institute. Cornell University Law School, 25 June 2013. Web. 04 Jan. 2014. <http://www.law.cornell.edu/supremecourt/text/12-96>.
After considering the full legislative record, Congress made the following findings: The VRA has directly caused significant progress in eliminating first-generation barriers to ballot access, leading to a marked increase in minority voter registration and turnout and the number of minority elected officials. 2006 Reauthorization 2(b)(1). But despite this progress, second generation barriers constructed to prevent minority voters from fully participating in the electoral process continued to exist, as well as racially polarized voting in the covered jurisdictions, which increased the political vulnerability of racial and language minorities in those jurisdictions.
Analysis: By voiding section four of the VRA, the Supreme Court has impacted the ability of the federal government to ensure that voting discrimination is prevented. Since Congress is unlikely to pass new legislation, all the progress made by the VRA is less likely to help second-generation minority voters in the future.
!"# %&'()*#+, -#. /0"12, 3*4&(-&5 6789
!"#$%&'( *+&,-. 6:; %<6 = >*1?,?"# @*)"A*, B&"'&*,, C-.* +" B&"A?.* DE(-0?+5 Answer: There are other factors involved in overcoming barriers to minority voting that VRA did not address.
Warrant: Definition of racially polarized voting.
Buscemi, Peter. "Brief For Professors Richard L. Engstrom, Theodore S. Arrington, And David T. Canon As Amici Curiae In Support Of Respondents." The Ohio State University, Michael E. Moritz College of Law. Counsel for Amici Curiae, 1 Feb. 2013. Web. 5 Jan. 2014. <http://moritzlaw.osu.edu/electionlaw/litigation/documents/BriefforEngstrometal asAmiciCuriae.pdf>.
Racially polarized voting exists when there is an empirical correlation between the race of a voter and the way in which the voter votes.
Warrant: Racially polarized voting increases the vulnerability of racial minorities to discriminatory changes in voting law.
Justice Ginsburg. "SHELBY COUNTY v. HOLDER." Legal Information Institute. Cornell University Law School, 25 June 2013. Web. 04 Jan. 2014. <http://www.law.cornell.edu/supremecourt/text/12-96>.
While racially polarized voting alone does not signal a constitutional violation, it is a factor that increases the vulnerability of racial minorities to discriminatory changes in voting law. The reason is twofold. First, racial polarization means that racial minorities are at risk of being systematically outvoted and having their interests underrepresented in legislatures. Second, when political preferences fall along racial lines, the natural inclinations of incumbents and ruling parties to !"# %&'()*#+, -#. /0"12, 3*4&(-&5 6789
!"#$%&'( *+&,-. 697 entrench themselves have predictable racial effects. Under circumstances of severe racial polarization, efforts to gain political advantage translate into race-specific disadvantages.
Buscemi, Peter. "Brief For Professors Richard L. Engstrom, Theodore S. Arrington, And David T. Canon As Amici Curiae In Support Of Respondents." The Ohio State University, Michael E. Moritz College of Law. Counsel for Amici Curiae, 1 Feb. 2013. Web. 5 Jan. 2014. <http://moritzlaw.osu.edu/electionlaw/litigation/documents/BriefforEngstrometal asAmiciCuriae.pdf>.
Although racially polarized voting is not itself state action, there is a link between racially polarized voting and discriminatory exclusion of minority voters from the democratic process. Specifically, racially polarized voting makes certain discriminatory voting practices, such as vote dilution, increasingly possible. Vote dilution occurs when the effectiveness of minority voters is minimized or canceled out through state action.
Warrant: For decades, racially polarized voting has been consistent throughout the country for certain minorities.
Persily, Nathaniel. "Regional Differences in Racial Polarization in the 2012 Presidential Election: Implications for the Constitutionality of Section 5 of the Voting Rights Act." Harvard Law Review. Harvard Law Review, 2013. Web. 05 Jan. 2014. <http://www.harvardlawreview.org/issues/126/april13/forum_1005.php>.
Our previous article detailed the well-known racial and regional differences in presidential voting patterns according to statewide exit polls from 1984 to 2004. Over this period, minority voters supported the Democratic candidate relatively !"# %&'()*#+, -#. /0"12, 3*4&(-&5 6789
!"#$%&'( *+&,-. 698 consistently and regardless of the coverage status of a jurisdiction. African Americans, in either type of jurisdiction, supported the Democratic candidate at a rate of 84%. Latinos were less pronounced or consistent in their support, but 61% of Latinos in the covered and 64% in the noncovered (or partially covered) jurisdictions supported the Democratic candidate, on average.
Warrant: Racially polarized voting has increased.
Persily, Nathaniel. "Regional Differences in Racial Polarization in the 2012 Presidential Election: Implications for the Constitutionality of Section 5 of the Voting Rights Act." Harvard Law Review. Harvard Law Review, 2013. Web. 05 Jan. 2014. <http://www.harvardlawreview.org/issues/126/april13/forum_1005.php>.
As compared to the twenty-year trend that preceded it, racial polarization increased in the 2008 presidential election. In both the covered and noncovered states, Barack Obama received a large, above-average share of the minority vote, such that the white-black and white-Latino gap increased.
Analysis: Although the VRA has made significant progress in certain jurisdictions, certain factors such as racially polarized voting still infringe on every Americans ability to vote. By passing legislation for the whole country, this factor can also be focused on to allow for the maximized prevention of discrimination. !"# %&'()*#+, -#. /0"12, 3*4&(-&5 6789
Argument: The notion that states must be treated equally by federal legislation is not supported by constitutional text or precedent.
Warrant: Federal assumption of state equality unfounded.
Price, Zachary S. "Namudnos Non-Existent Principle Of State Equality." NYU Law Review 88 (2013): 24-40. NYU Law Review Online. Web. 06 Jan. 2014. <http://www.nyulawreview.org/sites/default/files/NYULawReviewOnline-88-1- Price_0.pdf>.
The Court should not do so. The suggestion that federal legislation must treat states equally is a chimera, without support in constitutional text, history, or precedent. It is particularly unfounded with respect to legislation, like section 5 of the VRA, that is based on Congresss authority under the Fourteenth and Fifteenth Amendments to eradicate discriminatory denials of the right to vote. A constitutional requirement that legislation cannot treat states differently would call into question many typical legislative acts. The idea should be put to rest before it causes mischief.
Warrant: States are already given protection by representation in the legislature.
Price, Zachary. "Shelby County v. Holder: The Voting Rights Act Doesn't Need to Treat States Equally." SCOTUSblog RSS. Bloomberg Law, 16 Feb. 2014. Web. 06 Jan. 2014. <http://www.scotusblog.com/2013/02/shelby-county-v-holder-the-voting- rights-act-doesnt-need-to-treat-states-equally/>.
To see why NAMUDNO is wrong about state equality, consider what the Constitution actually says about states. To begin with, it guarantees each state representation (in proportion to population) in both the House of Representatives and the Electoral !"# %&'()*#+, -#. /0"12, 3*4&(-&5 6789
!"#$%&'( *+&,-. 69: College. Even more importantly, it guarantees each state (regardless of population) equal representation in the Senate. States thus do not appear to be in need of the type of protection against discriminatory action that heightened scrutiny normally provides. Although its conceivable that a majority of states might gang up repeatedly on some minority of states, these guarantees of political representation in Congress and the Electoral College are normally sufficient to ensure that losers today may be winners tomorrow.
Warrant: Constitution is specific about when states are guaranteed equality, suggesting no general rule of state equality.
Price, Zachary. "Shelby County v. Holder: The Voting Rights Act Doesn't Need to Treat States Equally." SCOTUSblog RSS. Bloomberg Law, 16 Feb. 2014. Web. 06 Jan. 2014. <http://www.scotusblog.com/2013/02/shelby-county-v-holder-the-voting- rights-act-doesnt-need-to-treat-states-equally/>.
Whats more, the Constitution guarantees some other, quite specific forms of equality. Congress cannot adopt unequal Duties, Imposts, and Excises, nor can it enact any Preference . . . given by any Regulation of Commerce or Revenue to the Ports of one State over those of another. At least in the absence of some compelling reason to infer a broader unenumerated principle of state equality, the specificity of such guarantees suggests that no general rule otherwise guards states against unequal treatment in federal legislation.
Warrant: Katzenbach case only applies to equality of state when entering the Union.
Shelby County v. Holder. 570 U.S. __.Supreme Court of the United State. 2013. supremecourt.gov. Web. 1/3/2014. <http://www.supremecourt.gov/opinions/12pdf/12-96_6k47.pdf>
The Court stops any application of 5 by holding that 4(b)s coverage formula is !"# %&'()*#+, -#. /0"12, 3*4&(-&5 6789
!"#$%&'( *+&,-. 699 unconstitutional. It pins this result, in large measure, to the fundamental principle of equal sovereignty. Ante, at 1011, 23. In Katzenbach, however, the Court held, in no uncertain terms, that the principle applies only to the terms upon which States are admitted to the Union, and not to the remedies for local evils which have subsequently appeared. 383 U. S., at 328329 (emphasis added).
Warrant: State equality specifically inapplicable to 14 th /15 th amendments.
Price, Zachary S. "Namudnos Non-Existent Principle Of State Equality." NYU Law Review 88 (2013): 24-40. NYU Law Review Online. Web. 06 Jan. 2014. <http://www.nyulawreview.org/sites/default/files/NYULawReviewOnline-88-1- Price_0.pdf>.
It would be particularly surprising to apply a principle of state equal treatment to Congresss enforcement powers under the Fourteenth and Fifteenth Amendments. These two amendments were adopted during Reconstruction principally to address concerns about discrimination against former slaves. 39 Thus, although the Fourteenth and Fifteenth Amendments guarantee voting rights and equal protection of the laws throughout the nation, and although Congress typically has enforced them with general, nationwide legislation, there is little doubt that their drafters were concerned principally with discriminatory practices concentrated in one region of the countrythe former Confederacy.
Warrant: Supreme Court precedent that some laws should discriminate against states.
Price, Zachary S. "Namudnos Non-Existent Principle Of State Equality." NYU Law Review 88 (2013): 24-40. NYU Law Review Online. Web. 06 Jan. 2014. <http://www.nyulawreview.org/sites/default/files/NYULawReviewOnline-88-1- Price_0.pdf>.
!"# %&'()*#+, -#. /0"12, 3*4&(-&5 6789
!"#$%&'( *+&,-. 69: In fact, in the Civil Rights Cases, a seminal early decision interpreting the Fourteenth Amendment, the Supreme Court struck down the Civil Rights Act of 1875 precisely because it did not discriminate between states.
The 1875 Act guaranteed full and equal enjoyment of various public accommodations to citizens of every race and color, regardless of any previous condition of servitude.
The Supreme Court held that this legislation was unconstitutionally overbroad because it applie[d] equally to cases arising in States which have the justest laws respecting the personal rights of citizens, and whose authorities are ever ready to enforce such laws, as to those which arise in States that may have violated the prohibition of the amendment.
Today, courts typically cite the Civil Rights Cases for the proposition that the Fourteenth Amendment applies only to state action and thus does not permit Congress to ban private discrimination.
Modern doctrine, moreover, likely would not support facial invalidation of the 1875 Act based on the putative unconstitutionality of its application to particular states.
Nevertheless, the holding of the Civil Rights Cases that the Fourteenth Amendment requires Congress to differentiate between states highlights the irony in NAMUDNOs suggestion that some unenumerated, implicit requirement of the Constitution may prohibit such disparate treatment of states.
Analysis: This argument may seem defensive but, with some creative framework, debaters should be able to make this an effective offensive argument. The stock argument used by most Pro teams will likely be the same argument that the Court uses to rule section 4(b) unconstitutionalthat it violates the principle of equal sovereignty. Since this argument will be so common, being able to apply this argument defensively will certainly be important. But this argument can be used as offense by interpreting the resolution such that they evaluate whether the specific decision about the Supreme Court is right. That is, even if Pro teams dont try to argue that the law is unconstitutional under equal sovereignty, Con teams could still generate offense with this argument by claiming that since the Supreme Court used said principle to rule section 4(b) unconstitutional, then they are not right in their ruling if equal sovereignty does not apply to the law.
Answer: Principle of equal sovereignty fundamental.
Warrant: Comes from equal footing.
Denniston, Lyle. "Constitution Check: Do the States Have a Right to Be Treated Equally?" Constitution Daily. National Constitution Center, 04 July 2013. Web. 03 Jan. 2014. <http://blog.constitutioncenter.org/2013/07/constitution-check-do- the-states-have-a-right-to-be-treated-equally/>.
When James Madison was working on drafts of the proposed Constitution, he suggested that there be a provision for bringing in new states, beyond the original 13. His draft suggested that any new state shall be admitted on the same terms with the original states. That idea got some support during the Philadelphia Convention, but the final version part of Article IV said only that new states may be admitted by the Congress into this Union. When the third new state, Tennessee, joined the Union in 1796, Congress explicitly declared for the first time that Tennessees entry would be on an equal footing. Other new states have been given the same promise. The most enthusiastic Supreme Court embrace of that idea came in a 1911 Supreme Court decision, Coyle v. Smith. But, that, too, was in the context of the rights that states would have at the point of becoming part of the United States. In recent times, the Court had only hinted that is, until last month that it would rely upon that principle to protect the equality of the states from differing treatment by Congress. The broadest hint (though few observers paid much attention to it at the time) came in 2009, in the case of Northwest Austin Municipal Utility District v. Holden. In that case, Chief Justice Roberts wrote a strongly worded opinion suggesting that the Voting Rights Act of 1965 might at some point be declared unconstitutional because it differentiates between the states, despite our historic tradition that all the states enjoy equal sovereignty. !"# %&'()*#+, -#. /0"12, 3*4&(-&5 6789
!"#$%&'( *+&,-. 69:
Warrant: Equality among states necessary for harmonious function of country.
Shelby County v. Holder. 570 U.S. __.Supreme Court of the United State. 2013. supremecourt.gov. Web. 1/3/2014. <http://www.supremecourt.gov/opinions/12pdf/12-96_6k47.pdf>
Not only do States retain sovereignty under the Constitution, there is also a fundamental principle of equal sovereignty among the States. Northwest Austin, supra, at 203 (citing United States v. Louisiana, 363 U. S. 1, 16 (1960); Lessee of Pollard v. Hagan, 3 How. 212, 223 (1845); and Texas v. White, 7 Wall. 700, 725726 (1869); emphasis added). Over a hundred years ago, this Court explained that our Nation was and is a union of States, equal in power, dignity and authority. Coyle v. Smith, 221 U. S. 559, 567 (1911). Indeed, the constitutional equality of the States is essential to the harmonious operation of the scheme upon which the Republic was organized. Id., at 580. Coyle concerned the admission of new States, and Katzenbach rejected the notion that the principle operated as a bar on differential treatment outside that context. 383 U. S., at 328329. At the same time, as we made clear in Northwest Austin, the fundamental principle of equal sovereignty remains highly pertinent in assessing subsequent disparate treatment of States.
Analysis: This responds to the argument that Katzenbach is not a bar on differential treatment outside admission of new states by arguing that the principle of equal sovereignty remains fundamental from the equal footing principle.
Argument: The Roberts court decision was based off of the principle that states must be treated equally.
Lemiux, Scott. "The Supreme Court v. Civil Rights." The American Prospect. 24 Oct. 2013. Web. 3 Jan. 2014. <http://prospect.org/article/supreme-court-v-civil-rights>.
The Supreme Court's decision earlier this year to strike down Section 4 of the Civil Rights Act shares this tendency of inventing extraconstitutional limitations on the authority of Congress to protect civil rights. Morrison, at least, explicitly singled out Section 4 as an enforcement of the Civil War amendments that was appropriate. Chief Justice Roberts's majority opinion in Shelby County doesn't even cite Morrisonor the "congruence and proportionality" test: the opinion is in such risible shambles that it doesn't bother explaining what standard is being used to evaluate congressional authority under the 15th Amendment at all. The only relevant limitation on Congress's authority to enforce the 15th Amendment cited by the Court is an alleged equal sovereignty of the states requirement not linked to any specific constitutional provision. To accept the Roberts Court's theory, one would have to accept that the Civil War Amendments were intended to implicitly enact the proto-Confederate theory of state sovereignty asserted by the Court in Dred Scott, a decision held in such contempt by the Reconstruction Congress that its other holdings were overturned by not one but two constitutional amendments. The idea is so absurd that to restate it is to refute it.
Argument: This is a flawed analysis.
Warrant: This justification is not found explicitly in the constitution.
Lemiux, Scott. "The Supreme Court v. Civil Rights." The American Prospect. 24 Oct. 2013. Web. 3 Jan. 2014. <http://prospect.org/article/supreme-court-v-civil-rights>. !"# %&'()*#+, -#. /0"12, 3*4&(-&5 6789
!"#$%&'( *+&,-. 69: In civics textbooks, the Supreme Court protects minority rights against the encroachment of congressional majorities. Bare majorities of the Roberts and Rehnquist Courts, conversely, have repeatedly acted to deny Congress's ability to protect the civil rights of disadvantaged groups, generally based on states' rights that are found not in the Constitution but in the imagination of the justices. Democratic administrations need to continue to nominate justices who will allow Congress to fully exercise its explicit authority to protect civil rights.
Warrant: The federal government has historically treated states unequally Posner, Richard . "Supreme Court 2013: The Year in Review." Slate Magazine. 26 June 2013. Web. 3 Jan. 2014. <http://www.slate.com/articles/news_and_politics/the_breakfast_table/features/2013/ supreme_court_2013/the_supreme_court_and_the_voting_rights_act_striking_down _the_law_is_all.html>.
Section 3 of Article IV of the Constitution authorizes Congress to admit new states to the Union, as it has done many times, but says nothing about the terms on which they are to be admitted. Usually when new states are admitted it is on the same terms as the existing ones. But not always: Utah and several other western states were required as a condition of admission to outlaw polygamya novel condition. Not that any other state permitted polygamy. But other states, not having been subjected to such a condition when they were admitted, were free to permit polygamy without risk of being expelled from the Union.
Warrant: We treat some states unequally in the status quo.
Price, Zachary. "Shelby County v. Holder: The Voting Rights Act doesn't need to treat states equally." SCOTUSblog. 16 Feb. 2013. Web. 3 Jan. 2014. <http://www.scotusblog.com/2013/02/shelby-county-v-holder-the-voting-rights- act-doesnt-need-to-treat-states-equally/>.
!"# %&'()*#+, -#. /0"12, 3*4&(-&5 6789
!"#$%&'( *+&,-. 6:7 What about tradition? Is there a historic practice of treating states equally? No, there isnt. Congress routinely passes legislation that presumes that only some rational basis is necessary for unequal treatment of states. Earmarks are one example: Congress routinely appropriates funds for particular states or localities without necessarily doing the same for other equally deserving jurisdictions. Congress also sometimes adopts pilot projects that let one state or locality try out a program before it gets imposed nationwide. Congresss management of federal property can also affect states unequally. Just ask Nevada about Yucca Mountain, which federal legislation designated as a repository for much of the nations nuclear waste. (Nevada tried to argue that this law violated a constitutional principle of state equality, but the D.C. Circuit gave that argument the back of its hand.) There are also regulatory laws that treat states unequally. The Clean Air Act permits California alone to adopt its own standards for certain emissions, while requiring other states to follow either Californias standards or federal regulations.
Argument: Since section four is not arbitrary, it is constitutional.
Posner, Richard . "Supreme Court 2013: The Year in Review." Slate Magazine. 26 June 2013. Web. 3 Jan. 2014. <http://www.slate.com/articles/news_and_politics/the_breakfast_table/features/2013/ supreme_court_2013/the_supreme_court_and_the_voting_rights_act_striking_down _the_law_is_all.html>.
Its possible that the federal government would subject a state to unequal treatment so arbitrary and oppressive as to justify a ruling that Congress exceeded its constitutional authority. But Justice Ruth Bader Ginsburgs very impressive opinion (in part because of its even tone), at a length (37 pages) that, remarkably, one would not like to see shortenedmarshals convincing evidence that the reasons Congress has for treating some states differently for purposes of the Voting Rights Act are not arbitrary, though they are less needful than they were in 1965, when the law was first enacted. !"# %&'()*#+, -#. /0"12, 3*4&(-&5 6789
Denniston, Lyle. "Constitution Check: Do the states have a right to be treated equally?." Constitution Daily. 8 July 2013. Web. 3 Jan. 2014. <http://blog.constitutioncenter.org/2013/07/constitution-check-do-the-states-have- a-right-to-be-treated-equally/>.
When James Madison was working on drafts of the proposed Constitution, he suggested that there be a provision for bringing in new states, beyond the original 13. His draft suggested that any new state shall be admitted on the same terms with the original states. That idea got some support during the Philadelphia Convention, but the final version part of Article IV said only that new states may be admitted by the Congress into this Union.
When the third new state, Tennessee, joined the Union in 1796, Congress explicitly declared for the first time that Tennessees entry would be on an equal footing. Other new states have been given the same promise. The most enthusiastic Supreme Court embrace of that idea came in a 1911 Supreme Court decision, Coyle v. Smith. But, that, too, was in the context of the rights that states would have at the point of becoming part of the United States.
Answer: States enjoy equal sovereignty.
Denniston, Lyle. "Constitution Check: Do the states have a right to be treated equally?." Constitution Daily. 8 July 2013. Web. 3 Jan. 2014. <http://blog.constitutioncenter.org/2013/07/constitution-check-do-the-states-have- a-right-to-be-treated-equally/>.
!"# %&'()*#+, -#. /0"12, 3*4&(-&5 6789
!"#$%&'( *+&,-. 6:6 In recent times, the Court had only hinted that is, until last month that it would rely upon that principle to protect the equality of the states from differing treatment by Congress. The broadest hint (though few observers paid much attention to it at the time) came in 2009, in the case of Northwest Austin Municipal Utility District v. Holden. In that case, Chief Justice Roberts wrote a strongly worded opinion suggesting that the Voting Rights Act of 1965 might at some point be declared unconstitutional because it differentiates between the states, despite our historic tradition that all the states enjoy equal sovereignty.
Answer: Roberts argument is that states have some individual level of dignity, has supreme court precedent.
Fishkin, Joseph. "The Yale Law Journal Online - The Dignity of the South." The Yale Law Journal Online - The Dignity of the South. 8 June 2013. Web. 3 Jan. 2014. <http://yalelawjournal.org/the-yale-law-journal-pocket-part/election-law/the- dignity-of-the-south/>.
This argument from the equal dignity of the states is both more and less novel than it might seem. The idea that states have dignity, and that this dignity has some constitutional forcealthough not, to be sure, because of any specific piece of constitutional textemerged as an important theme in the new federalism jurisprudence of the 1990s. In a series of sovereign immunity cases, most prominently Alden v. Maine,
conservative Supreme Court majorities held that it would violate states dignity if Congress could use its Article I powers to make states subject to lawsuits for money damages without their consent. In those cases, dignity enters the picture in a hierarchical way: it is one state versus the federal government. The invocation of dignity is meant to evoke a pre-democratic idea of the dignity of the sovereign, an idea that predates the modern conceptions of human dignity that are now so central to the constitutional law and jurisprudence of many nations and international bodies. 7 In other words, the dignity claim here is about the sovereignty of a stateany state. Maine will do as well as South Carolina. What seems novel, in !"# %&'()*#+, -#. /0"12, 3*4&(-&5 6789
!"#$%&'( *+&,-. 6:; the Shelby County variant of the dignity-of-states argument, is the comparative element: here, what is supposed to be undignified is the federal government treating some states differently from others.
Analysis: Winning either side of this argument is the key to winning this debate, but this argument is made problematic by the fact that there is no clear winner. Section 4 is unconstitutional, according to the court decision, because it violates the principle of states having equal sovereignty essentially, there needs to be a good reason to treat states differently. If there is no good reason, then any such law is unconstitutional. This argument is very convincing, because we tend to think as states as being equal. However, it is important to note that there is no explicit constitutional principal setting this forth. Basically, this debate will come down to persuasion. The pro can respond to the argument that it is not in the constitution but arguing that states have a certain level of dignity and sovereignty however, again note that this will rely on persuasion to win.
Argument: In 2006 changing the coverage formula was not politically feasible, and the current Republican congress makes it such that a new coverage formula is unlikely to be passed. Thus Roberts should not assume a different coverage formula is possible, the standard for declaring it unconstitutional should be higher if it is necessary to combat racial discrimination.
Warrant: Roberts decision wants different coverage formula.
Shelby County v. Holder. 570 U.S. __.Supreme Court of the United State. 2013. supremecourt.gov. Web. 1/3/2014. http://www.supremecourt.gov/opinions/12pdf/12-96_6k47.pdf
Striking down an Act of Congress is the gravest and most delicate duty that this Court is called on to perform. Blodgett v. Holden, 275 U.S. 142, 148 (18277) (Holmes, J. concurring). We do not do so lightly. That is why, in 2009, we took care to avoid ruling on the constitutionality of the Voting Rights Act when asked to do so, and instead resolved the case then before us on statutory grounds. But in issuing the decision, we expressed our broader concerns about the constitutionality of the Act. Congress could have updated the coverage formula at that time, but did not do so. Its failure to act leaves us today with no choice but to declare section 4(b) unconstitutional. The formula in that section can longer be used as a basis for subjecting jurisdictions to preclearance. Our decision in no way affects the permanent nationwide ban on racial discrimination in voting found in section 2. We issue no holding on section 5 itself, only on the coverage formula. Congress may draft another formula based on current conditions. Such a formula is an initial prerequisite to a determination that exceptional conditions still exist justifying such an extraordinary departure from the traditional course of relations between the States and the Federal Government. Presley, 502 U.S., at 500-501. Our country has changed, and while any racial discrimination in voting is !"# %&'()*#+, -#. /0"12, 3*4&(-&5 6789
!"#$%&'( *+&,-. 6:: too much, Congress must ensure that the legislation it passes to remedy that problem speaks to current conditions.
Warrant: A new coverage formula wouldve changed focus of debate and unraveled the bill.
Persily, Nathaniel. "The Promise and Pitfalls of the New Voting Rights Act." Yale Law Journal 117.174 (2007): 174-253. Web. 4 Jan. 2014. <http://yalelawjournal.org/images/pdfs/606.pdf>.
What became clear throughout the reauthorization process was that a debate over the coverage formula would turn into a debate about the purpose and utility of section 5 itself. Such a debate likely would have led to the complete unraveling of the bill. If Congress had added or subtracted jurisdictions based on some new criteria then the justification for those criteria would become the central political and constitutional question underlying the bill. Congress would have needed to make some findings as to why these new criteria roughly correspond (or more precisely, were proportional and congruent) to areas of concern with respect to minority voting rights violations.
Warrant: A formula covering more recent offenders was not politically plausible.
Persily, Nathaniel. "The Promise and Pitfalls of the New Voting Rights Act." Yale Law Journal 117.174 (2007): 174-253. Web. 4 Jan. 2014. <http://yalelawjournal.org/images/pdfs/606.pdf>.
As described above, voter turnout rates (either in the aggregate or racial disparities) would not do so, nor would a history of successful voting rights lawsuits (for example, cover all those jurisdictions that had been found guilty of a violation of section 2 of the VRA). Moreover, no objective statistical criteria could have added the most recent bad actors (Ohio and Florida) to the list of currently covered jurisdictions. Indeed, as Richard Pildes has argued, the bad actors of recent elections were discovered principally after the fact when a competitive election and subsequent litigation exposed !"# %&'()*#+, -#. /0"12, 3*4&(-&5 6789
!"#$%&'( *+&,-. 6:; the problems in those states election laws and administration. As with a decision to apply section 5 nationally, a decision to cherry-pick such large and politically powerful states as Ohio and Florida would have sunk the bill. It is one thing to retain coverage of jurisdictions that have lived with the constraints of section 5 for some time; it is quite another to heap a new and costly administrative scheme onto jurisdictions unaccustomed to needing federal permission for their voting laws. Moreover, if the formula were tailored to capture the most notorious alleged recent violators of minority rights, the likely targets of increased coverage would have been Republican-controlled statesand the Republican Congress should hardly be expected to increase coverage to include solely those areas Democrats considered bad actors in recent elections. Perhaps a deal could have been struck to include some Democratic states that have been the subject of controversy, such as Washington, which demonstrated its share of voting irregularities in its 2004 gubernatorial recount. Yet, those complaints were not race-based, and if section 5 was going to become a generic troubleshooter for voting violations, let alone fraud however defined, then the whole structure would need to have been rethought.
Warrant: A coverage formula to appease the Republicans would have been ineffective.
Persily, Nathaniel. "The Promise and Pitfalls of the New Voting Rights Act." Yale Law Journal 117.174 (2007): 174-253. Web. 4 Jan. 2014. <http://yalelawjournal.org/images/pdfs/606.pdf>.
In 2006, any decision to expand coverage would have needed to appear politically evenhanded. As insulted as the currently covered jurisdictions were to remain under the section 5 umbrella, any newly covered state would have considered its addition to the preclearance regime as a national condemnation of its recent voting rights record. The only way such a signal could have been politically acceptable is if the eventual targets were not uniformly dominated by one party (that is, Republicans). Extending coverage to the most high-profile recent violators (or at least, to those that had received the most !"# %&'()*#+, -#. /0"12, 3*4&(-&5 6789
!"#$%&'( *+&,-. 6:; attention because competitive elections in those states exposed vulnerabilities that were more widely shared), therefore, would have required finding some criterion that also added a few Democratic jurisdictions. At the same time, any attempt to avoid disparate partisan treatment while reforming the coverage formula must also comply with the congruence and proportionality standard. In other words, the new coverage formula would have to be both politically fair and justifiable as preventing or remedying violations of voting rights. A slapdash choice of jurisdictions arising from a political compromise to balance out the partisan effects of a new coverage regime would be incongruent with the geography of voting rights violators almost by definition. As unsatisfying and constitutionally risky as resigning the VRA regime to its current geographical reach may be, tinkering with it would have invited a whole host of unknown problems. Whatever its drawbacks, the current coverage formula had the virtue of already having been upheld by the Supreme Court.150 While the coverage formula might be outdated, advocates for the law at least would have stare decisis on their side and could force the Court into the position of explaining why a previously constitutional law was now unconstitutional.
Warrant: A new coverage formula is politically unfeasible in the status quo as well.
Totenberg, Nina. "Supreme Court: Congress Has To Fix Broken Voting Rights Act."NPR. NPR, 25 June 2013. Web. 03 Jan. 2014. <http://www.npr.org/2013/06/25/195599353/supreme-court-up-to-congress-to- fix-voting-rights-act>.
Reaction to the ruling was swift in the civil rights community and elsewhere. Sherrilyn Ifill, president of the NAACP Legal Defense Fund, called the decision "a game changer" that "leaves virtually unprotected minority voters in communities all over this country." Standing outside the Supreme Court immediately after the decision was announced, she said, "We will not soft-soap it. This is a real threat, but we believe strongly Congress can fix it." President Obama and Attorney General Eric Holder echoed that thought. "I am hopeful that new protections can and will pass this session of Congress," Holder said !"# %&'()*#+, -#. /0"12, 3*4&(-&5 6789
!"#$%&'( *+&,-. 6:; "This is not a partisan issue, it's an American issue because our democracy is founded on ensuring that every eligible citizen has access to the ballot box." Privately, though, most voting-rights experts are more than skeptical that the current polarized Congress can enact any fix. As a political matter, it's "a nonstarter," says Yale Law professor and voting specialist Heather Gerken. Voting-rights expert Richard Hasen of the University of California, Irvine, calls the pre-clearance section of the law "effectively dead." "It's hard for me to imagine that Congress is going to come up with any new kind of new coverage formula," he says. Instead, Hasen says, states with records of discrimination are likely "to flex their muscles, putting more controversial voting laws into place."
Analysis: When making this argument it will be important to make the link to constitutionality very clear to the judges. Just an argument that other coverage formulas are impossible is not going to be topical. That is why the first card in the argument is important to illustrate that Robertss decision implicitly relies on the notion that other coverage formulas are possible. This argument is also best made in tandem with an argument that preclearance is still necessary to prevent racial discrimination in voting. This is because it only matters that this is the only possible coverage formula if we need a coverage formula at all.
Fortunately, there is an alternative: Congress can rewrite Section 4 to make it apply to all 50 states in perpetuity, thereby reviving and universalizing Section 5s federal pre-clearance of state and local electoral law changes. The rationale for universal federal pre-clearance of changes in state and local electoral laws is independent of the legacy of anti-black racism in the U.S. as a whole and the South in particular. In any ethnically diverse democracy that is also a federal system, the national government needs to be able to restrain the power of ethnic groups, including those that are national minorities but local majorities, from manipulating the electoral laws in sub- national jurisdictions to create tyrannical ethnocracies like the older White South. Today, non-Hispanic whites are a minority in California, Texas and other states. By the middle of the 21st century, non-Hispanic whites will be a minority in the U.S. population as a whole, according to some projections. Who knows? Maybe in the future the outnumbered non-Hispanic white group, or other minority communities, will need to be protected against unjust attempts to dilute their votes by new, post- white majorities that prove to be as ethnocentric and undemocratic as non-Hispanic whites frequently were when they enjoyed majority status. In other words, the rationale for congressionally authorized federal pre-clearance of changes in electoral systems at the state and local level would be compelling, even if there had never been any history of racism in the U.S. at all. The mere prospect of potential state and local !"# %&'()*#+, -#. /0"12, 3*4&(-&5 6789
!"#$%&'( *+&,-. 6:7 majority tyranny in the electoral arena is rationale enough for a universal, permanent pre-clearance policy by the federal government.
Warrant: It is politically feasible. Lind, Michael. "Salon." Saloncom RSS. N.p., 27 June 2013. Web. 04 Jan. 2014. http://www.salon.com/2013/06/27/a_no_lose_fix_for_the_voting_righ ts_act/ . Universalizing Section 4 of the Voting Rights Act, then, makes excellent sense on its merits. It would make for smart politics, too. Proposing to universalize Section 4 would be a no-lose proposition for progressives, centrists and non-racist conservatives. If a law universalizing Section 4 were enacted, then the Northern and Western states would have nothing to fear unless, of course, their state governments were trying to use devious methods to restrict or dilute the voting power of particular groups, like the disproportionately minority poor. But that is as it should be. Why should race-motivated voter ID laws or redistricting schemes to dilute minority voters by packing them in ghettoized electoral districts be subject to more federal scrutiny in the South than in the Midwest or West Coast or New England? The same level of federal scrutiny should be brought to bear everywhere in the United States. If a law universalizing Section 4 were to die in Congress, it would almost certainly be killed by Republicans based in the former Confederacy. Their success in stopping universalization of Section 4 would be a Pyrrhic victory, further identifying the Republican Party in the national mind with the most benighted white reactionaries in the former homeland of slavery and segregation. This outcome would strengthen not only Democrats but also reformist Republicans making the case that their party must be freed from its Southern captivity.
Would a universalized version of Section 4 be acceptable to this Supreme Court? Because all states would be treated equally, the argument that it treated some unfairly would be irrelevant. Opponents would have to argue that by permanently universalizing Sections 4 and 5 of the Voting Rights Act, Congress was exceeding its constitutional authority. That would be a hard argument to make, given the clear language of the 15th Amendment to the U.S. Constitution, ratified in 1870: Section 1. 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. Section 2. The Congress shall have power to enforce this article by appropriate legislation. If universal, perpetual federal pre-clearance of changes in electoral laws by all state and local governments, to make sure they do not disadvantage particular minorities, is not appropriate legislation for defending the right of citizens of the United States to vote under the 15th Amendment, it is hard to imagine what appropriate legislation would be.
Analysis: This argument serves as a good response because it shows that there is an alternatively possible coverage formula. It addresses political feasibility by arguing that if Republicans tried to block it they would be demonized as segregationists. However, if making this response remember that this alternative has never been proposed in Congress and this is simply one author who acknowledges that the bill would not necessarily pass. So dont be too cavalier in saying that this is a political slam-dunk. That being said it would almost definitely overcome any Constitutional challenges as it applies to all states equally and thus would not violate the equal sovereignty clause. Furthermore, this response may allow you to generate some offense of your own by talking about how this plan would prevent future voter discrimination when American demographics change. !"# %&'()*#+, -#. /0"12, 3*4&(-&5 6789
Argument: Past precedent gives Congress the ability to implement the 14 th and 15 th amendments in any way they see fit.
Warrant: Civil War Amendments were meant to arm Congress with the power to use all appropriate and plainly adapted means to prevent racial discrimination.
Justice Ginsburg. "SHELBY COUNTY v. HOLDER." Legal Information Institute. Cornell University Law School, 25 June 2013. Web. 04 Jan. 2014. <http://www.law.cornell.edu/supremecourt/text/12-96>.
The stated purpose of the Civil War Amendments was to arm Congress with the power and authority to protect all persons within the Nation from violations of their rights by the States. In exercising that power, then, Congress may use all means which are appropriate, which are plainly adapted to the constitutional ends declared by these Amendments.
Warrant: Congressional enforcement of 15 th amendment rooted in constitutional text and precedent.
Justice Ginsburg. "SHELBY COUNTY v. HOLDER." Legal Information Institute. Cornell University Law School, 25 June 2013. Web. 04 Jan. 2014. <http://www.law.cornell.edu/supremecourt/text/12-96>.
The basis for this deference is firmly rooted in both constitutional text and precedent. The Fifteenth Amendment, which targets precisely and only racial discrimination in voting rights, states that, in this domain, Congress shall have power to enforce this article by appropriate legislation. In choosing this language, the Amendments framers invoked Chief Justice Marshalls formulation of the scope !"# %&'()*#+, -#. /0"12, 3*4&(-&5 6789
!"#$%&'( *+&,-. 6:; of Congress powers under the Necessary and Proper Clause: Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional. McCulloch v. Maryland
Warrant: There is past judicial precedent supporting Congresss ability to prevent racial discrimination.
Justice Ginsburg. "SHELBY COUNTY v. HOLDER." Legal Information Institute. Cornell University Law School, 25 June 2013. Web. 04 Jan. 2014. <http://www.law.cornell.edu/supremecourt/text/12-96>.
Until today, in considering the constitutionality of the VRA, the Court has accorded Congress the full measure of respect its judgments in this domain should garner. South Carolina v. Katzenbach supplies the standard of review: As against the reserved powers of the States, Congress may use any rational means to effectuate the constitutional prohibition of racial discrimination in voting.
Warrant: The burden is on the courts to satisfy that Congress does not have rational means, especially when its an act that has been reauthorized based on contemporary evidence.
Justice Ginsburg. "SHELBY COUNTY v. HOLDER." Legal Information Institute. Cornell University Law School, 25 June 2013. Web. 04 Jan. 2014. <http://www.law.cornell.edu/supremecourt/text/12-96>.
In summary, the Constitution vests broad power in Congress to protect the right to vote, and in particular to combat racial discrimination in voting. This Court has repeatedly reaffirmed Congress prerogative to use any rational means in exercise of its power in this area. And both precedent and logic dictate that the rational-means test should be easier to satisfy, and the burden on the statutes challenger should be !"# %&'()*#+, -#. /0"12, 3*4&(-&5 6789
!"#$%&'( *+&,-. 6:9 higher, when what is at issue is the reauthorization of a remedy that the Court has previously affirmed, and that Congress found, from contemporary evidence, to be working to advance the legislatures legitimate objective.
Warrant: Court lacks authority to substitute judgment based on compiled evidence.
Gespass, David. "Brief Of Amicus Curiae National Lawyers Guild In Support Of Respondents." The Lawyers' Committee for Civil Rights Under Law. Counsel for Amicus Curiae, 1 Feb. 2013. Web. 5 Jan. 2014. <http://www.lawyerscommittee.org/admin/voting_rights/documents/files/12-96- bsac-NationalLawyersGuild.pdf>.
The Court lacks the authority to substitute its judgment for the measured findings of elected officials that racism still runs rampant in this land and that covered jurisdictions remain appropriate subjects of the greater attention the Voting Rights Act imposes when that attention places minimal burdens on them.
Warrant: Courts defer to Congress on matters of fact. Congress has the time and resources that the Court does not.
Gespass, David. "Brief Of Amicus Curiae National Lawyers Guild In Support Of Respondents." The Lawyers' Committee for Civil Rights Under Law. Counsel for Amicus Curiae, 1 Feb. 2013. Web. 5 Jan. 2014. <http://www.lawyerscommittee.org/admin/voting_rights/documents/files/12-96- bsac-NationalLawyersGuild.pdf>.
Federal courts have deferred to Congress and state legislatures in findings of fact. And, indeed, legislatures have resources and time to dedicate to the process of collecting and evaluating information necessary to take action. Members of Congress and other legislatures may engage in a range of activities to assemble their facts, including consulting staff, friends and constituents, and educating !"# %&'()*#+, -#. /0"12, 3*4&(-&5 6789
!"#$%&'( *+&,-. 6:; themselves by reviewing past legislation or even by reading a novel or watching television.
Impact: Congressional power is at its highest in the issue of racial discrimination.
Justice Ginsburg. "SHELBY COUNTY v. HOLDER." Legal Information Institute. Cornell University Law School, 25 June 2013. Web. 04 Jan. 2014. <http://www.law.cornell.edu/supremecourt/text/12-96>.
When confronting the most constitutionally invidious form of discrimination, and the most fundamental right in our democratic system, Congress power to act is at its height.
Impact: The Court deferring to Congress upholds branch separation of power.
Gespass, David. "Brief Of Amicus Curiae National Lawyers Guild In Support Of Respondents." The Lawyers' Committee for Civil Rights Under Law. Counsel for Amicus Curiae, 1 Feb. 2013. Web. 5 Jan. 2014. <http://www.lawyerscommittee.org/admin/voting_rights/documents/files/12-96- bsac-NationalLawyersGuild.pdf>.
This case affords the Court the opportunity to step back to acknowledge and adhere to the principles of a fair government envisioned in 1787 by the founders: three separate, distinct and coequal branches of government with overlapping but separate spheres of authority, created to prevent abuse of power and ensure the protection of individual freedoms. While the specific legal and moral imperative of eliminating racism within our society is an imposing one, members of the Court are also duty- bound to exercise judicial deference to the lawmakers whose exhaustive fact-finding formed the basis for their decision.
!"# %&'()*#+, -#. /0"12, 3*4&(-&5 6789
!"#$%&'( *+&,-. 6:: Analysis: Both the constitutional writings of the 14 th and 15 th amendments and past judicial precedent give Congress the discretion of creating legislation meant to combat racial discrimination. Congress alone is the only branch that has the resources, time and enforceability to effectively combat discrimination. Therefore, they should be given the highest level of power in deciding what works to protect citizens from voter discrimination, not the Court.
Answer: The Court did not substitute the judgment of Congress but critique the method of implementation.
Warrant: The Courts role is to decide whether or not the provisions in place were appropriate methods.
Justice Ginsburg. "SHELBY COUNTY v. HOLDER." Legal Information Institute. Cornell University Law School, 25 June 2013. Web. 04 Jan. 2014. <http://www.law.cornell.edu/supremecourt/text/12-96>.
The Courts role, then, is not to substitute its judgment for that of Congress, but to determine whether the legislative record sufficed to show that Congress could rationally have determined that [its chosen] provisions were appropriate methods.
Warrant: Section 2 along with the 14 th and 15 th amendment provide federal voting protections for minorities.
Weinstein, Matthew. "Beyond the Sensationalism." Harvard Political Review RSS. Harvard Political Review, 18 May 2013. Web. 06 Jan. 2014. <http://harvardpolitics.com/united-states/beyond-the-sensationalism/>.
Section 2, combined with the Constitutions 14th (equal protection) and 15th (universal male voting rights) Amendments provides a basic level of federal protection of minority voting rights.
Warrant: Section 2 of the VRA still allows for racial discrimination cases to be tried. !"# %&'()*#+, -#. /0"12, 3*4&(-&5 6789
!"#$%&'( *+&,-. 6:; Weinstein, Matthew. "Beyond the Sensationalism." Harvard Political Review RSS. Harvard Political Review, 18 May 2013. Web. 06 Jan. 2014. <http://harvardpolitics.com/united-states/beyond-the-sensationalism/>.
The most important part of the VRA is Section 2, which prohibits states, counties, and cities from enacting voting procedures that racially discriminate. The federal government, and specifically the Department of Justice, has power to enforce Section 2 through litigation. The DOJ may ask courts for preliminary injunctions to prevent enactment of discriminatory voting procedures, and private individuals can also bring Section 2 lawsuits. Between 2000 and 2009, the DOJ brought only 26 lawsuits under Section 2, yet the threat of litigation is often enough to pressure jurisdictions into election reform. However, Section 2 is not at issue in Shelby, and the DOJ and individuals will retain their power regardless of the Courts decision.
Warrant: The mechanisms for choosing who is covered by the VRA are no longer valid.
Fisher, Daniel. "Supreme Court Upholds Voting Rights Act, But Strikes Down How It's Enforced." Forbes. Forbes Magazine, 25 June 2013. Web. 06 Jan. 2014. <http://www.forbes.com/sites/danielfisher/2013/06/25/supreme-court-upholds- voting-rights-act-but-strikes-down-how-its-enforced/>.
There is no doubt that these improvements are in large part because of the Voting Rights Act, Roberts wrote. But the formula Congress devised in 1965, separating states into those with low voter turnouts and pernicious tests like literacy requirements, is no longer valid, he said. Today the Nation is no longer divided along those lines, yet the Voting Rights Act continues to treat it as if it were.
Impact: Court ruled that the procedures can stay the same if the methods for choosing who it applies to changes.
!"# %&'()*#+, -#. /0"12, 3*4&(-&5 6789
!"#$%&'( *+&,-. 6:; Fisher, Daniel. "Supreme Court Upholds Voting Rights Act, But Strikes Down How It's Enforced." Forbes. Forbes Magazine, 25 June 2013. Web. 06 Jan. 2014. <http://www.forbes.com/sites/danielfisher/2013/06/25/supreme-court-upholds- voting-rights-act-but-strikes-down-how-its-enforced/>.
The ruling states that Congress can still enforce the restrictions on voting procedures, but only if it produces an updated method for identifying states for review.
Analysis: Instead of disagreeing with the precedent set forth by the Constitution and the judiciary, you should agree with the power that the Court is in fact given. Because the Court is able to decide if the methods the Congress uses is appropriate, if the Court decided the VRA was outdated and no longer applicable, they would be right in doing so. !"# %&'()*#+, -#. /0"12, 3*4&(-&5 6789
"A Glossary of Political Economy Terms." Judicial restraint: Web. 4 Jan. 2014. <http://www.auburn.edu/~johnspm/gloss/judicial_restraint>.
The view that the Supreme Court (and other lesser courts) should not read the judges' own philosophies or policy preferences into the constitution and laws and should whenever reasonably possible construe the law so as to avoid second guessing the policy decisions made by other governmental institutions such as Congress, the President and state governments within their constitutional spheres of authority. On such a view, judges have no popular mandate to act as policy makers and should defer to the decisions of the elected "political" branches of the Federal government and of the states in matters of policy making so long as these policymakers stay within the limits of their powers as defined by the US Constitution and the constitutions of the several states.
Argument: Judicial restraint should be applied when evaluating civil rights cases.
Warrant: The Civil War Amendments explicitly give Congress the power to enforce civil rights legislation especially look at the 15 th Amendment.
AMENDMENT XIII Passed by Congress January 31, 1865. Ratified December 6, 1865. Section 1. Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction. Section 2. Congress shall have power to enforce !"# %&'()*#+, -#. /0"12, 3*4&(-&5 6789
!"#$%&'( *+&,-. 6:8 this article by appropriate legislation. AMENDMENT XIV Passed by Congress June 13, 1866. Ratified July 9, 1868. Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. Section 2-4 [omitted]. Section 5. The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article. AMENDMENT XV Passed by Congress February 26, 1869. Ratified February 3, 1870. Section 1. 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. Section 2. The Congress shall have the power to enforce this article by appropriate legislation.
Warrant: Thus we should give Congress more latitude in deciding what civil rights legislation we should have.
Schwartz, John. "Between the Lines of the Voting Rights Act Opinion." the New York Times. 25 June 2013. Web. 3 Jan. 2014. <http://www.nytimes.com/interactive/2013/06/25/us/annotated-supreme-court- decision-on-voting-rights-act.html?_r=0>.
The stated purpose of the Civil War Amendments was to arm Congress with the power and authority to protect all persons within the Nation from violations of their rights by the States. In exercising that power, then, Congress may use all means which are appropriate, which are plainly adapted to the constitutional ends declared by these Amendments. McCulloch, 4 Wheat., at 421. So when Congress acts to enforce the right to vote free from racial discrimination, we ask not whether Congress has chosen the means most wise, but whether Congress has rationally selected means appropriate to a legitimate end. It is not for us to review the congressional resolution of [the need for its chosen remedy]. It is enough that we be able to perceive a basis upon which the Congress !"# %&'()*#+, -#. /0"12, 3*4&(-&5 6789
!"#$%&'( *+&,-. 6:6 might resolve the conflict as it did. Katzenbach v. Morgan, 384 U. S. 641, 653 (1966).
Until today, in considering the constitutionality of the VRA, the Court has accorded Congress the full measure of respect its judgments in this domain should garner.
Argument: The VRA allows for the formula to change over time.
Board, Editorial. "The Roberts Court casts aside judicial restraint on Voting Rights Act case." Washington Post. The Washington Post, 25 June 2013. Web. 4 Jan. 2014. <http://www.washingtonpost.com/opinions/the-roberts-court-casts-aside-judicial- restraint-on-voting-rights-act-case/2013/06/25/c4bb645e-dddc-11e2-b197- f248b21f94c4_story.html>.
Congress spent months in 2006 amassing a massive record to show that, even though the first generation of discriminatory voting measures had been eradicated, subtler but significant forms of discrimination in jurisdictions subject to pre-clearance remained serious and pervasive. Lawmakers also considered evidence that discrimination still occurs disproportionately in those places. Because people and places change, Congress allowed jurisdictions with 10 years of good behavior to bail out of pre-clearance. It also allowed courts to bail in jurisdictions if need be. Both were essential elements of the system, allowing it to adapt to changing realities. That was the basis upon which a 390 to 33 majority in a Republican-controlled House and a 98 to 0 majority in a Republican Senate determined that pre-clearance requirements remained rational policy that deserved extension until 2031.
Argument: The VRA was extended in 2006 by large margins.
!"#$%&'( *+&,-. 6:; Senate Minority Leader Harry Reid and House Minority Leader Nancy Pelosi have used the occasion of the Voting Rights Act extension to criticize Bush's administration for politicizing civil rights policy and weakening enforcement of the law's provisions. The bill passed the Senate by a vote of 98-0 and the House 390-33. The overwhelming majorities belied the difficulties getting to that point.
Analysis: This argument is essentially that since Congress was explicitly given the power to enforce civil rights legislation, since it was a reasonable piece of legislation that allowed for change over time, and since it was passed with such large margins, the court should exercise judicial restraint and uphold the law.
!"# %&'()*#+, -#. /0"12, 3*4&(-&5 6789
!"#$%&'( *+&,-. 6:9 %;6< !=>=0 ?='@+, A(*,+="#, -&* %#,B*&*. 45 !"#'&*,, Answer: Federal power does not exist in a vacuum, states have sovereignty as well.
Warrant: The VRA assumes that states cannot adequately govern themselves.
von Spakovsky, Hans . "Voting Rights Act After the Supreme Court's Decision in Shelby County." The Heritage Foundation. Web. 4 Jan. 2014. <http://www.heritage.org/research/testimony/2013/08/the-voting-rights-act-after- the-supreme-courts-decision-in-shelby-county>.
Section 5 was an unprecedented, extraordinary intrusion into state sovereignty since it required covered states to get the approval of the federal government for voting changes made by state and local officials either the Department of Justice or a three-judge court in the District of Columbia. No other federal law presumes that states cannot govern themselves as their legislatures decide and must have the federal governments consent before they act. As the Supreme Court said, Section 5 employed extraordinary measures to address an extraordinary problem.
Warrant: Such action was necessary in the past to combat blatant voter suppression.
von Spakovsky, Hans . "Voting Rights Act After the Supreme Court's Decision in Shelby County." The Heritage Foundation. Web. 4 Jan. 2014. <http://www.heritage.org/research/testimony/2013/08/the-voting-rights-act-after- the-supreme-courts-decision-in-shelby-county>.
The coverage formula of Section 4 was based on that disparity and Congress specifically designed it to capture those states that were engaging in such blatant discrimination. Thus, coverage under Section 4 was based on a jurisdiction maintaining a test or device as a prerequisite to voting as of Nov. 1, 1964, and registration or turnout of less than 50 percent in the !"# %&'()*#+, -#. /0"12, 3*4&(-&5 6789
!"#$%&'( *+&,-. 6:; 1964 election. Registration or turnout of less than 50 percent in the 1968 and 1972 elections was added in successive renewals of the law. That was the last time the coverage formula was revised, and Section 4 did not employ more current information on registration and turnout when Section 5 was last renewed in 2006. Section 5 was needed in 1965. But as the Court recognized, time has not stood still and n]early 50 year later, things have changed dramatically. The systematic, widespread discrimination against black voters has long since disappeared. As the Court recognized in the Northwest Austin case in 2009: Voter turnout and registration rates now approach parity. Blatantly discriminatory evasions of federal decrees are rare. And minority candidates hold office at unprecedented levels.
Warrant: Times have changed, it is no longer necessary now.
von Spakovsky, Hans . "Voting Rights Act After the Supreme Court's Decision in Shelby County." The Heritage Foundation. Web, 4 Jan. 2014. <http://www.heritage.org/research/testimony/2013/08/the-voting-rights-act-after- the-supreme-courts-decision-in-shelby-county>.
No one can rationally claim that there is still widespread, official discrimination in any of the covered states, or that there are any marked differences between states such as Georgia, which was covered, and states such as Massachusetts, which was not covered (except that Massachusetts has worse turnout of its minority citizens). As the Supreme Court approvingly noted and as Judge Stephen F. Williams pointed out in his dissent in the District of Columbia Court of Appeals, jurisdictions covered under Section 4 have higher black registration and turnout than noncovered jurisdictions.[6] Covered jurisdictions also have far more black officeholders as a proportion of the black population than do uncovered ones.[7] In a study that looked at lawsuits filed under Section 2 of the VRA, Judge Williams found that the five worst uncovered jurisdictionshave worse records than eight of the covered jurisdictions.[8]
Answer: Roberts argument is that states have some individual level of dignity, has supreme court precedent. !"# %&'()*#+, -#. /0"12, 3*4&(-&5 6789
!"#$%&'( *+&,-. 6:; Fishkin, Joseph. "The Yale Law Journal Online - The Dignity of the South." The Yale Law Journal Online - The Dignity of the South. N.p., 8 June 2013. Web. 3 Jan. 2014. <http://yalelawjournal.org/the-yale-law-journal-pocket-part/election- law/the-dignity-of-the-south/>.
This argument from the equal dignity of the states is both more and less novel than it might seem. The idea that states have dignity, and that this dignity has some constitutional forcealthough not, to be sure, because of any specific piece of constitutional textemerged as an important theme in the new federalism jurisprudence of the 1990s. In a series of sovereign immunity cases, most prominently Alden v. Maine, 5 conservative Supreme Court majorities held that it would violate states dignity if Congress could use its Article I powers to make states subject to lawsuits for money damages without their consent. 6 In those cases, dignity enters the picture in a hierarchical way: it is one state versus the federal government. The invocation of dignity is meant to evoke a pre-democratic idea of the dignity of the sovereign, an idea that predates the modern conceptions of human dignity that are now so central to the constitutional law and jurisprudence of many nations and international bodies. 7 In other words, the dignity claim here is about the sovereignty of a stateany state. Maine will do as well as South Carolina. What seems novel, in the Shelby County variant of the dignity-of-states argument, is the comparative element: here, what is supposed to be undignified is the federal government treating some states differently from others.
Analysis: Thus argument responds to the con side because cons judicial restraint argument does not discuss the role of the states. Though Congress has the power to enforce civil rights legislation, states have a competing right to their own sovereignty. !"# %&'()*#+, -#. /0"12, 3*4&(-&5 6789
Argument: The reason the conservative justices overturned the law was because they thought that the law is antiquated and no longer necessary.
Warrant: Justice Roberts ruling.
Shelby County, Alabama V. Holder, Attorney General, Et Al. Supreme Court of the United States. 25 June 2013. Web. <http://www.supremecourt.gov/opinions/12pdf/12-96_6k47.pdf>.
Nearly 50 years later, things have changed dramatically. Largely because of the Voting Rights Act, [v]oter turnout and regis- tration rates in covered jurisdictions now approach parity. Blatant- ly discriminatory evasions of federal decrees are rare. And minority candidates hold office at unprecedented levels. Northwest Austin, supra, at 202. The tests and devices that blocked ballot access have been forbidden nationwide for over 40 years. Yet the Act has not eased 5s restrictions or narrowed the scope of 4s coverage formula along the way. Instead those extraordinary and unprecedented fea- tures have been reauthorized as if nothing has changed, and they have grown even stronger. Because 5 applies only to those jurisdic- tions singled out by 4, the Court turns to consider that provision. Pp. 1317. (b) Section 4s formula is unconstitutional in light of current condi- tions.
Argument: Since Congress was given the power to protect against Civil Rights amendments through the Civil War amendments to the constitution, the court only needs to see whether Congress had some rational means to continue section four of the VRA. If they did, then the court should not overturn the law and defer to Congress.
Schwartz, John. "Between the Lines of the Voting Rights Act Opinion." the New York Times. 25 June 2013. Web. 3 Jan. 2014. <http://www.nytimes.com/interactive/2013/06/25/us/annotated-supreme-court- decision-on-voting-rights-act.html?_r=0>.
The stated purpose of the Civil War Amendments was to arm Congress with the power and authority to protect all persons within the Nation from violations of their rights by the States. In exercising that power, then, Congress may use all means which are appropriate, which are plainly adapted to the constitutional ends declared by these Amendments.McCulloch, 4 Wheat., at 421. So when Congress acts to enforce the right to vote free from racial discrimination, we ask not whether Congress has chosen the means most wise, but whether Congress has rationally selected means appropriate to a legitimate end. It is not for us to review the congressional resolution of [the need for its chosen remedy]. It is enough that we be able to perceive a basis upon which the Congress might resolve the conflict as it did. Katzenbach v. Morgan, 384 U. S. 641, 653 (1966). Until today, in considering the constitutionality of the VRA, the Court has accorded Congress the full measure of respect its judgments in this domain should garner.
Argument: Second generation barriers to voting exist and should allow the law to be upheld.
Warrant: Second generation barriers are enough to upheld the law.
Schwartz, John. "Between the Lines of the Voting Rights Act Opinion." the New York Times. 25 June 2013. Web. 3 Jan. 2014. <http://www.nytimes.com/interactive/2013/06/25/us/annotated-supreme-court- decision-on-voting-rights-act.html?_r=0>.
The Court holds 4(b) invalid on the ground that it is irrational to base coverage on the use of voting tests 40 years ago, when such tests have been illegal since that time. Ante, at 23. But the Court disregards what Congress set about to do in enacting the !"# %&'()*#+, -#. /0"12, 3*4&(-&5 6789
!"#$%&'( *+&,-. 6:; VRA. That extraordinary legislation scarcely stopped at the particular tests and devices that happened to exist in 1965. The grand aim of the Act is to secure to all in our polity equal citizen ship stature, a voice in our democracy undiluted by race. As the record for the 2006 reauthorization makes abundantly clear, second-generation barriers to minority voting rights have emerged in the covered jurisdictions as attempted substitutes for the first-generation barriers that originally triggered preclearance in those jurisdictions. See supra, at 56, 8, 1517. The sad irony of todays decision lies in its utter failure to grasp why the VRA has proven effective. The Court appears to believe that the VRAs success in eliminating the specific devices extant in 1965 means that preclearance is no longer needed. Ante, at 2122, 2324. With that belief, and the argument derived from it, history repeats itself.
Warrant: There have been 2400 blocked discriminatory voting changes since 1982 in the area covered under section four.
Rosdeitcher, Sidney. "Supreme Court Preview: Constitutionality of the Preclearance and Coverage Provisions of the Voting Rights Act Reauthorization of 2006 | Brennan Center for Justice." Web. 3 Jan. 2014. <http://www.brennancenter.org/analysis/supreme-court-preview-constitutionality- preclearance-and-coverage-provisions-voting-rights>.
Respondents detail the extensive record of racially discriminatory voting practices in the covered jurisdictions before Congress, that they maintain demonstrate current needs for the preclearance provision. This record shows, they maintain, that since 1982, approximately 2400 discriminatory voting changes had been blocked by more than 750 Section 5 objections and that without Section 5 these voting changes could have been challenged only through case-by-case litigation, a system that would have resulted in years of discriminatory treatment of minority voters pending the outcome of those litigations and would have required an enormous expenditure of resources. Among other evidence before Congress of voting discrimination in the covered jurisdictions, Respondents point to the number of successful suits under Section !"# %&'()*#+, -#. /0"12, 3*4&(-&5 6789
!"#$%&'( *+&,-. 6:7 2 of the Voting Rights Act filed in covered jurisdictions; continued disparities between minority voters registration and participation rates as compared to those of non-Hispanic white voters; the Attorney Generals experience in certifying and dispatching election observers; the persistence of severe racially polarized voting in covered jurisdictions that indicates the political vulnerability of racial-minority voting rights; and testimony of experts, voters, and practitioners about ongoing intimidation, harassment, voter suppression and intentionally dilutive practices.
Warrant: Voter-id laws that were blocked in five states will now become law, depress minority turnout.
Greenman, Emma . "Part 1: Gutting the Voting Rights Act: How the Supreme Courts Shelby v. Holder decision Strikes at the Heart of Voting Rights and Our Political Process." Wellstone. 14 July 2013. Web. 3 Jan. 2014. <http://www.wellstone.org/blog/2013/07/part-1-gutting-voting-rights-act-how- supreme-court%E2%80%99s-shelby-v-holder-decision-strikes>.
Take voter ID laws for starters. Until Shelby, Section 5 prevented covered states from implementing strict voter ID requirements that would depress minority turnout. Now freed of the federal government review, many of the formally covered jurisdictions will go ahead with those laws to the determinant of minority voters. In fact, they already have. Hours after the ruling, Texas announced it is putting a strict voter ID law into effect. The law had been blocked by Section 5 because, as the D.C. federal court observed, it imposes strict, unforgiving burdens on the poor, and racial minorities in Texas are disproportionately likely to live in poverty. And Texas is not alone. At last count, four more previously covered states are moving ahead with voter ID laws that will likely take effect before 2014 Congressional elections..
Warrant: Redistricting will dilute the influence of minority voters.
!"# %&'()*#+, -#. /0"12, 3*4&(-&5 6789
!"#$%&'( *+&,-. 6:8 Greenman, Emma . "Part 1: Gutting the Voting Rights Act: How the Supreme Courts Shelby v. Holder decision Strikes at the Heart of Voting Rights and Our Political Process." Wellstone. N.p., 14 July 2013. Web. 3 Jan. 2014. <http://www.wellstone.org/blog/2013/07/part-1-gutting-voting-rights-act-how- supreme-court%E2%80%99s-shelby-v-holder-decision-strikes>.
And then there is redistricting. Section 5 has been very effective at preventing local jurisdictions from changing their rules to dilute the ability of minority voters to elect candidates of their choice. Strategies like packing minority voters into one highly concentrated district, or cracking their voting strength by distributing minority voters across many districts or at-large elections dilute the power of minority voters to influence and elect leaders of their choice. Shelby County, Alabama, the jurisdiction that took their challenge to the VRA to the Supreme Court, provides a telling example of what we may expect in the absence of Section 5 pre-clearance. In 2008, Calera, a city in Selby County, passed a redistricting plan that would have eliminated the citys single majority-black city council district. Section 5 enforcement blocked the change and saved the seat of the citys only black city council person. With federal review gone, there is nothing preventing the city from now implementing the change.
Analysis: This argument, though intricate and complex, can be very powerful for the con side. To summarize, the argument is essentially this The conservative justices overturned the law because they felt it was antiquated, but as the examples of second generation barriers to voting show, the law was still rational. Since Congress was given extraordinary powers by the Civil War Amendments to protect against civil rights abuses, the court should not determine whether Congress made the most wise decision in extending the law in 2006, but rather should only see whether Congress was rational in doing so. Because Congress acted rationally, the law should not have been overturned.
!"# %&'()*#+, -#. /0"12, 3*4&(-&5 6789
!"#$%&'( *+&,-. 6:6 A/2 There Is Still A Need For Section 4 Of The Voting Rights Act
Answer: The 2006 extension was irrational.
Warrant: The 25 year extension is irrational, because previous extensions were short term.
Epstein, Richard. "The Mirage of Racism | Hoover Institution." The Mirage of Racism | Hoover Institution. N.p., 12 Mar. 2013. Web. 3 Jan. 2014. <http://www.hoover.org/publications/defining-ideas/article/142306>.
In 1970, the political valence changed with the departure of key segregationist senators, so that the preclearance period was extended for five more years. In 1975, the VRA was extended for another seven years. In 1982, it jumped to twenty-five years; in 2006, it was renewed for another twenty-five years. Now, according to the District of Columbia Circuit Court, congruence and proportionality leap to the fore in the case. How can a longer period with more stringent guidelines be needed today, when the 2006 version of the Act notes, significant progress has been made in eliminating first generation barriers experienced by minority voters? Indeed the evidence is clear that outright efforts to keep anyone from the polls on the grounds of race are few and far between.
Warrant: There is less racism now than before, the law was necessary before, but not now. Thernstrom, Abigail. "American Enterprise Institute." Redistricting, Race, and the Voting Rights Act. N.p., 6 Apr. 2010. Web. 3 Jan. 2014. <http://www.aei.org/article/society-and-culture/race-and-gender/redistricting- race-and-the-voting-rights-act/>.
During the 2006 Voting Rights Act reauthorization process, the House Judiciary Committee argued in its official report that Discrimination today is more subtle than the visible methods used in 1965. However, the effects and results are the same. Rarely in !"# %&'()*#+, -#. /0"12, 3*4&(-&5 6789
!"#$%&'( *+&,-. 6:; the rich annals of congressional deceit and self-deception have more false and foolish words been written. No meaningful evidence supported this extraordinary claim, which did a disservice to the nation by refusing to recognize the remarkable revolution in race relations that occurred in the second half of the 20th century. Without question, the Voting Rights Act of 1965 was essential to the demise of the Jim Crow South. It ended whites' exclusive hold on political power, which had made all other forms of southern racial subjugation possible. It was an indispensable and beautifully designed response to a profound moral wrong.
Warrant: African-American participation in government is high.
Thernstrom, Abigail. "American Enterprise Institute." Redistricting, Race, and the Voting Rights Act. N.p., 6 Apr. 2010. Web. 3 Jan. 2014. <http://www.aei.org/article/society-and-culture/race-and-gender/redistricting- race-and-the-voting-rights-act/>.
Consider that in 1964, only five blacks held seats in Congress--none from any southern state--and just 94 blacks served in any of the 50 state legislatures, with only 16 in the southern states that were home to half of the nation's black population. But largely as a consequence of race-conscious districting, the Congressional Black Caucus today has 42 members, 17 of them from the South. And as of 2008, almost 600 blacks held seats in state legislatures; another 8,800 were mayors, sheriffs, school-board members, and other officeholders. Fully 47% of these public officials lived in the seven states originally covered by the Voting Rights Act, even though those states now contain only 30% of the nation's black population. Especially striking is the fact that Mississippi--which once had a well-deserved reputation as the most white-supremacist stat e in the union--now leads the nation in the number of blacks elected to political office.
Answer: The 2400 blocked voting changes is not evidence for the con side because the justice department has been overreaching to create oddly shaped minority districts.
!"# %&'()*#+, -#. /0"12, 3*4&(-&5 6789
!"#$%&'( *+&,-. 6:9 Epstein, Richard. "The Mirage of Racism | Hoover Institution." The Mirage of Racism | Hoover Institution. N.p., 12 Mar. 2013. Web. 3 Jan. 2014. <http://www.hoover.org/publications/defining-ideas/article/142306>.
A motive-based inquiry that looks at the intent of the public body in enacting certain voting practices generates better results than the disparate impact approach. To scorn that approach invites all sorts of disparate treatment. Thus there is a steady stream of justice department initiatives that have forced states to adopt grotesquely shaped majority-minority districts, with the sole purpose of maximizing the influence of minority voters. All of this has met with an uncertain response in the Supreme Court, which tries to have it both ways by applying a standard of strict scrutiny while showing at least some respect to the Justice Departments handiwork. Yet these complex efforts that rig district lines make it exceedingly hard to determine which, if any, of these initiatives do increase minority representation, given that redrawing the lines for one district necessarily redraws them for others. At this point, the irony increases. If the Fifteenth Amendment were read as a colorblind provision, all of these redistricting efforts with transparent racial motivations would have to be promptly struck down on the grounds that they deny or abridge the voting rights of all citizens, black or white, who are not in the preferred district. The notorious refusal to take this step is yet another instance in which the ostensible effort to remove race from politics has had the exact opposite effect.
Analysis: If con argues that there is a rational need for section four, then pro can respond by arguing that there is no rational need. Since the prevalence of racism in the South has lessened, since the 2006 extension was unnecessarily long, and since majority-minority districts often disproportionately benefit minority voters, the law is not rational.