The following contribution to our Shelby County v. Holder symposium comes from Christian Adams. Adams litigates election law cases as the founder of the Election Law Center, and is the author of The New York Times bestseller about elections, the Voting Rights Act and the Justice Department, Injustice (Regnery, 2011). While at the Justice Department, he litigated a wide range of voting cases and participated in numerous Section 5 reviews.
There are three main reasons why I think Section 4 of the Voting Rights Act – which outlines the formula that is used to determine whether a jurisdiction is “covered” by the preclearance requirement created by Section 5 – will be struck down in Shelby County v. Holder, scheduled for argument at the Court on February 27. Remember, of course, that Section 4 triggers are at issue, not the substantive provisions of Section 5.
Even if Section 4 triggers survive Shelby County, two new challenges will then follow. First, depending on how the opinion is written, the states brought into Section 4 coverage through the 1975 amendments may still have a challenge. The statutory triggers for Alabama are not precisely the same as the triggers for Arizona or Alaska, two states which must also seek Section 5 preclearance.
Even if the plaintiffs in Shelby County lose, Arizona and Alaska wait in the wings. These states were brought into Section 4 coverage based in large part on minority language issues, and nowhere in the Fifteenth Amendment is language discussed. Race is. Of course, the Court may wipe out this claim depending on how the opinion is written, or, it may invite the next wave even while upholding triggers for Alabama.
Next, even if the Shelby County plaintiffs lose the challenge to Section 4, there will still be a challenge to the substantive provisions of Section 5 in the 2006 reauthorization. The challenge will resemble the one brought originally by the plaintiffs in Nix v. Holder, the challenge filed by voters in Kinston, North Carolina. It will attack the higher preclearance hurdles in the 2006 reauthorization which has led to objections against voter integrity measures like citizenship verification in Georgia and photo identification requirements in Texas.
Some Republicans in Congress have claimed that the Justice Department is not enforcing Section 5 properly. That’s not accurate. They make this claim because they want their redistricting cake, and to have also eaten it. The insertion of the word “any” into the 2006 reauthorization – namely that “any” discriminatory effect merits an objection – has led the bureaucrats in the Voting Section at DOJ largely to adopt a de minimis standard, where any difference, or delta, greater than zero in discriminatory effect results in an objection.
DOJ is taking the Republican Congress of 2006 at its word, even if some of those Congressmen are protesting that DOJ should not. But if you voted for the reauthorization in 2006, you also voted to make it difficult to preclear photo voter identification and citizenship verification. While members of Congress enjoy their safe racially gerrymandered districts, lawlessness in elections flourishes because election integrity measures are objected to under Section 5.
All of this illustrates the three reasons why the plaintiffs in Shelby County are likely to prevail at the Supreme Court.
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 that’s 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.
If you read the Kinston objection letter from 2009, you can see firsthand this abusive approach. The Kinston objection was based on the notion that if the word “Democrat” was not placed beside town council candidate names, African Americans would not know for whom to vote.
The second example of how Section 5 is now an abuse of federal power relates to the extraordinary cost of judicial preclearance driven by the wolf-pack attack of intervenors. My amicus brief to the Supreme Court details this abusive cost to states.
South Carolina estimated that getting preclearance for its voter ID law in the district court would cost one million dollars. They didn’t count on the swarm of intervenors, and their heavily funded pro bono law firms (funded by the paying clients of those firms). In the end it cost South Carolina 350% more to gain preclearance.
I once had a Republican advocate of Section 5 say to me that the answer to DOJ abuse was simply going to court. Perhaps that Republican could donate to South Carolina’s legal defense fund – I hear they need the help.
Third, and finally, the Granite State Free Ride may spell the doom of Section 4. New Hampshire is preposterously covered by the Section 4 triggers. Yet the DOJ has deliberately ignored the state, and not required thousands of election changes to be precleared. They have given the Granite State a free ride.
This is the rule of men, not the rule of law. Advocates of Section 4 find themselves in a Catch-22. The DOJ’s Granite State Free Ride can only be defended on the theory (used explicitly by the bureaucrats inside the Voting Section) that the triggers are not congruent and proportional. Or, in the alternative, if the triggers are indeed congruent and proportional, we have a three-decade example of outright abuse of power by DOJ officials. Giving New Hampshire a Granite State Free Ride while forcing southern states to spend millions of dollars in compliance with Section 5 is disgraceful and abusive.
Either a state is covered, or it is not. Or, the triggers aren’t congruent and proportional. In direct contravention of the law, bureaucrats at the Voting Section determined on their own that the time had long passed when New Hampshire should be required to seek federal government approval for election changes. In a few months, there is a good chance the Supreme Court may decide the same thing for the whole nation.
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