Arizona Legislature v. Arizona Independent Redistricting Commission

From the Brennan Center:

On March 2, the Supreme Court will hear arguments in Arizona Legislature v. Arizona Independent Redistricting Commission, which will decide whether Arizona voters had the power - through a citizen ballot initiative - to establish an independent redistricting commission to draw the state’s congressional maps every ten years.

The case could invalidate congressional redistricting commissions in Arizona, California, Hawaii, Idaho, New Jersey, and Washington and, depending on how the court rules, also could throw into doubt the tie-breaking procedures used in four states to resolve legislative deadlocks over maps as well as redistricting commissions in New York, New Jersey, and Maine. A measure approved by Florida voters in 2010 to tighten redistricting standards also could be at risk.

The ramifications of the case extend beyond redistricting, however. The Arizona Legislature's constitutional challenge to the commission is based on the Constitution’s Elections Clause and contends that the clause should be read to mean that the “times, places and manner” of federal elections can be set only by state legislatures or by Congress. That clause governs not just redistricting plans but a wide range of laws related to federal elections. If Arizona’s independent commission is struck down as unconstitutional, dozens of other state laws also could be at risk. These include 21 state laws adopted by ballot initiative and another 45 that needed approval by voters via a legislative referendum or constitutional amendment. Examples of such laws include Mississippi's voter identification law, Oregon's vote by mail ballot elections, and Ohio's ban on straight party voting. In short, the ruling, expected in late spring or this summer, could be a blockbuster.

Does anyone else see a huge problem with elected officials being the only ones who draw the lines deciding who elects them? Hello gerrymandering! Partisan redistricting only provides a vehicle for the party in power to solidify its hold on a state and its Congressional seats. Not to mention the fact that bipartisan and non-partisan commissions are almost always more favorable to Democrats than partisan gerrymandering schemes hmm... Partisan gerrymandering dilutes the will of the people, serves to disenfranchise voters and favor politicians. The idea that the Supreme Court would consider banning alternative redistricting methods CHOSED BY THE VOTERS is ludicrous to me. But ya know, what do I know?

No, No Limits (So Reach For the Sky?)

Finally my CNN Breaking News alert pays off:

The U.S. Supreme Court today struck down limits on the total amount a person can donate to various political campaigns in a single election season. However, the court left intact the limit on how much an individual can give to any single candidate.

"We conclude that the aggregate limits on contributions do not further the only governmental interest this court accepted as legitimate," said Chief Justice John Roberts, referring to a 1976 ruling. "They instead intrude without justification on a citizen's ability to express the most fundamental First Amendment activities."

The divided 5-4 ruling could have an immediate impact on November's congressional midterm elections, and add another layer of high-stakes spending in the crowded political arena.

What do we think?


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Ask Nancy: What Happened With the Supreme Court and Voting Rights?

Many people are confused by the recent disappointing ruling in Shelby County v. Holder, a case I wrote about earlier this year.You can read the entire opinion here. I answer some common questions about the ruling, and its potential implications, below.

Did the Supreme Court strike down the Voting Rights Act?
No, but they did strike down the coverage formula delineated in Section 4 which was one of its most important mechanisms of enforcement.

I thought you said this case was about Section 5.
It was. Section 5 required that jurisdictions covered under Section 4 have any changes in voting laws "precleared" by the Department of Justice or a three-judge panel in DC. Hence without Section 4, no Section 5.

What was the coverage formula based on?
When the Voting Rights Act was enacted in 1965 any jurisdiction that maintained a "test or device" as a barrier to enfranchisement, for example a literary test, as of November 1, 1964 was included. It also included states where less than half of the voting-age population was registered to vote as of November 1, 1964 or where less than half of the voting-age population had voted in the previous Presidential election. In 1970, Congress renewed the act and added that any jurisdictions that fit the aforementioned criteria as of 1968 would be also be included. In 1975, when Congress renewed the act again they expanded the formula to include jurisdictions that fit the criteria as of 1972, they also expanded the definition of "test or device" to include a failure to provide election materials in a second language in areas where linguistic minorities were concentrated.

So once you were covered you were covered forever? What if you violated voting rights after 1972?
Jurisdictions that felt they no longer fit the critera could seek a declaratory judgement to "bail-out" and no longer be covered under Section 4. Any jurisdiction that violated any other part of the Voting Rights Act could be "bailed-in."

Why did the Supreme Court rule Section 4 unconstitutional?
It comes down to everyone's favorite loophole for discrimination: state's rights. The constitution gives all powers not specifically assigned to the Federal Government to the states, including the administration and regulation of elections. In addition, we operate under a principle of "equal sovereignty among the states." In the majority opinion, Chief Justice Roberts ruled that Section 4 violated these principles by treating some states differently than others.

But wasn't that true in 1965 when the Voting Rights Act was enacted?
Yes. However, in a 1966 case challenging this portion of the act the Court ruled that the “uncommon exercise of
congressional power” was justified by the “exceptional conditions” of widespread discrimination, voter suppression and intimidation. The Court argued that conditions have changed dramatically since 1965 while the VRA has not.

Is the court claiming that voter suppression and discrimination no longer exists?
No. It is claiming that discrimination has declined dramatically and that it looks very different than in did in 1965. The Court pointed out that when the VRA was enacted the formula was partially based on Jim Crow era measures like poll taxes and literary tests, while the most recent electoral schemes dismissed under Section 5 involve things like redistricting and voter ID.

Isn't it possible that discrimination has declined in covered areas because of Section 5?
Possible, nay probable. Quoth my personal hero, Justice Ginsburg in the dissent, "[t]hrowing out preclearance when it has worked and is continuing to work to stop discriminatory changes is like throwing away your umbrella in a rainstorm because you are not getting wet." This is evidenced by the fact that since the ruling previously covered jurisdictions have been running to implement redistricting schemes and voter id laws that they know to be discriminatory. Texas Governor and famous big jerk Rick Perry just approved the new Texas electoral maps that had been ruled discriminatory by a three-judge panel.

Surely some areas had evolved and no longer needed to be covered under Section 5.
Of course. That's what the bail-out mechanism was for. However, it was the districts trying to implement discriminatory measures that objected to Section 5. As famous civil rights attorney, Fred Gray pointed out if these jurisdictions had "developed to the point where they [were] interested in protecting the individual rights of minorities and the proposals [were] indeed not discriminatory, they would have nothing to worry about when submitting an issue for preclearance."

Without Sections 4 and 5, how are voters protected from discriminatory changes to election law?
The Court went out of its way to emphasize that Section 2, "which bans any'standard, practice, or procedure' that 'results in a denial or abridgment of the right of any citizen . . . to vote on account of race or color,' applies nationwide, is permanent, and is not at issue in this case." Voting rights advocates are already gearing up to sue discriminatory jurisdictions under Section 2.

Section 2 seems like it's got us covered. What's the problem?
What Section 5 did was shift the burden of proof from the oppressed to the oppressor. Section 2 requires that oppressed groups be aware of changes to election law and have the organization and resources to fight them. Don't forget, Section 4 covered municipalities too. Sure it might make it on the news if there were a new statewide law, but what about a local change in early voting hours? By the time a suit is brought and decided against a discriminatory change it may have already had a deleterious effect. It's a lot easier to stop a law from being implemented than fight it once it's already in place.

So, is preclearance gone forever?
Not necessarily. The Court's main objection to Section 4 is that the formula is based on the discriminatory practices of yesteryear and that only combatting these practices justified what would normally be considered Congressional overreach. The Court deliberately left it open for Congress to come up with a new way to use preclearance to fight modern day discrimination. "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." Unsurprisingly, some Democrats have already begun formulating a plan to do just that and Republicans are formulating a plan to stop them.

Today in Voter Suppression: Shelby County v. Holder

Hey Guys,
I've been wanting to talk to you about Section 5 for a while. Below is an OpEd I wrote about a very important case coming up before the Supreme Court (so apologies for the strange tone). This is potentially a huge deal for minority voting rights. Enjoy!
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Later this month the Supreme Court will hear arguments in the case of Shelby County v. Holder, which calls into question the constitutionality of Section 5 of the Voting Rights Act. Simply put, Section 5 requires states or localities with a history of racial discrimination to clear any changes in election procedures and districting with the Department of Justice or a three judge panel in Washington DC, before those changes may be enacted. It is among the federal government’s most important tools in combatting voter suppression. The Supreme Court must uphold Section 5 and identify this challenge for what it is: the latest in a long line of Republican attempts to rewrite the rules of a game they are losing.

During the 2012 election cycle, voting rights were thrust into the spotlight thanks to partisan attempts to restrict access to the polls for youth and minority voters. Although laws requiring voter ID or limiting early voting were introduced under the pretense of preventing voter fraud and relieving burdens on local election boards, their true motivation was clear-- disenfranchising Democratic voters. Perhaps the most flagrant example is the case of the Pennsylvania House Majority Leader Mike Turzai who boasted that, “voter ID…is gonna allow Governor Romney to win the state of Pennsylvania.” Following President Obama’s successful reelection, it may seem as if these concerns have passed by the wayside. However, for those of us who work in electoral politics the fight is far from over. If the Supreme Court does not uphold Section 5, millions of voters will effectively lose their political voice.

Opponents of Section 5 claim that the law is outdated because it was enacted to combat Jim Crow era literacy tests and that such discrimination no longer exists. However, one need only look to the recent election cycle to realize that racially motivated voter suppression is alive and well. Having run Election Day operations for a Texas Congressional campaign I can tell you anecdotally that local officials in one county opened polling locations in African American neighborhoods –and only those neighborhoods-- two hours late. Unsurprisingly, the commissioner in charge of elections in that county is an outspoken opponent of Section 5. Minority heavy polling places in an adjacent county in which the Department of Justice chose to have a preemptive presence (under a provision separate from section 5) did not experience such delays. In a Texas redistricting case, a three judge court slammed legislators for attempting to “remove the economic guts” from African American Congressional districts. Both the redistricting scheme and a discriminatory voter ID law would have been enacted in 2012 had Texas not been covered under Section 5. South Carolina voters would have been subject to a similar voter ID law and minority communities in Florida would have seen reduced hours at their polling places. The list goes on. Voter ID laws alone would have barred access to the polls for between 700, 000 and 1 million minority voters nationwide.

True, effected voters could have challenged the laws subsequent to their passing, but those legal battles would have been long and expensive and resolved only after the damage had been done. Before Section 5 this was common practice. Discriminatory legislation would be struck down after an election, a jurisdiction would find some other means of discrimination and the process would repeat itself. Section 5 shifts the burden of proof from the oppressed to the oppressor.

The prosecution will argue that Section 5 is unconstitutional because it treats some states and districts differently than others. However the choice of covered districts is not arbitrary, but rather based on a formula that identifies areas with a history of racially motivated vote suppression. Districts covered by Section 5 have in effect made their own bed. To the extent that the formula may be under-inclusive, this is an argument to expand Section 5, not eliminate it. Where federal intervention is truly no longer necessary districts can file for a “bail out,” which will exempt them from preclearance. Dozens of towns and counties have taken advantage of this mechanism.

The fact that states like Texas would so obviously not qualify for bailouts only speaks to Section 5’s necessity—as does Shelby County’s persistence in seeking ways to avoid complying with anti-discriminatory measures. As a voting rights advocate, it is my sincerest hope that these districts will one day meet the standards of equality to truly render Section 5 obsolete. Until that time, me thinks the Republican legislatures do protest too much.