A San Antonio attorney comments on Voting Reform.

Southern states are not known for legislation-related modernizations; a characteristic that many southerners have attempted to change. Several Samford University students demonstrated this discontent in 2005 when they camped out on campus and attempted to read all of the antiquated government document for the State of Alabama. They did not succeed in a full reading but they did succeed in laying the pavement for serious discussion of constitutional reform. In fact, this month, the U.S. Supreme Court ruled that a key provision of the 1965 Voting Rights Act is unconstitutional. (Shelby County, Alabama v. Holder). The Voting Rights Act, when enacted, was a landmark piece of legislation that established federal oversight of state voting laws in an attempt to prevent the widespread practice of voter discrimination. Many saw this as a necessary part of bringing the nation together in the midst of major segregation geared practices in the South, say our San Antonio lawyers.

The Act has several noteworthy provisions. Section 2, for example, allows plaintiffs to challenge a state voting procedure in court whenever a voting procedure has a discriminatory result—this has come up in cases where the State has failed to provide language assistance for Hispanic voters (U.S. v. Osceola City) or required Arab-American voters to “take an oath as a condition to voting” (U.S. v. City of Hamtramck, Michigan). Section 2 is therefore a strong tool against voter discrimination. But because litigation takes time and money, Section 2 is considered by many as a slow fix to an immediate harm. Many discriminated citizens can’t accurately pursue justice become of the lack of control in time, according to any San Antonio attorney.

As a result Congress drafted Section 5 of the Act. Section 5, the pre-clearance provision, requires certain states (nine total) to, effectively, get permission from the federal government whenever the state wants to change “any voting qualification . . . or [voting] standard, practice, or procedure.” These nine states, also called “covered jurisdictions,” with the exception of Alaska and Virginia, are all located in the South. One benefit of Section 5 pre-clearance, from the federal government’s perspective, is that plaintiffs do not need to sue to block changes to state voting laws. Instead, a state is not allowed to make any change until and unless the federal government allows it. As compared to the nine states, the remaining states can pass and implement voting laws without needing to first get permission. San Antonio lawyers agree, that an obvious question then, is who decides which states must get prior permission? The answer is that Congress created a formula in 1964.

The formula, which is Section 4(b), was what the Supreme Court declared unconstitutional. Shelby County, Alabama, sued the federal government arguing that Section 4(b)’s formula was unconstitutional. The Supreme Court agreed with Shelby County. The Court said that in light of current conditions in the nine covered states, and the fact the formula is based on data from the 1960s and early 1970s, the formula no longer makes sense. The Court noted that the Black voter participation rate in Mississippi in 1965, for example, was 6.7 percent. In contrast, Mississippi’s “Black voter participation” in 2004 was 76.1 percent—3.8 percent more than the “White voter participation.” The same was true for all nine states—“Black voter participation” either was near-equal to or exceeded “White voter participation.” Because Congress did not create a new formula to take into consideration these developments, the Court said that the formula was irrational and unconstitutional.

Note that the Court did not say anything about the constitutionality of Section 5. Congress can in other words create a new formula under Section 4(b) by taking into account “current conditions.” If Congress however does not come up with a new formula, then as a practical matter Section 5’s pre-clearance requirement means nothing. To be more specific, without a formula no state is “covered” and therefore no state needs to get prior permission under Section 5. Whether Congress has enough will power to create and pass a new formula remains to be seen.

Thanks to Mr. Zaven A. Sargsian, a law clerk in our SLC office, for his contribution with this article. Zaven is a recent graduate of S.J. Quinney College of Law, University of Utah and anticipates taking the Utah Bar examination in July of 2013.

Shumway Van

Telephone: (210) 503-2800