By Robert T. Bass
Allison, Bass & Associates, L.L.P.
On June 25, 2013, the Supreme Court issued a long-awaited opinion on the Voting Rights Act, codified at 42 U.S.C.A. 1973. The case was filed by Shelby County, Alabama, seeking a declaratory judgment that Sections 4 and 5 of the Voting Rights Act were facially unconstitutional, and further sought a permanent injunction against the enforcement of these sections.
The Voting Rights Act of 1965 is composed of several sections, the most critical being Section 2, which gives to private individuals the right to sue state and local governments for acts of discrimination based upon racial discrimination related to the exercise of the right to vote. Section 4 of the Act identified various sections of the country that had, over time, demonstrated a pattern and practice of racial discrimination in voting practices. Section 5 of the Voting Rights imposed an obligation upon those states or jurisdictions identified in Section 4 to obtain what was known as “preclearance” from the Department of Justice before any change in established voting policies, practices or methods would be permitted to go into effect.
The Shelby County lawsuit challenged Section 4 on the basis that although the evidence introduced in 1965 to support the passage of the original Voting Rights Act may have been persuasive of race based discrimination at that time, the Congress’ subsequent extensions of the Voting Rights Act without additional evidence of existing race based discrimination violated the equal protection clause of the U.S. Constitution.
Although the Supreme Court opinion admits that discrimination still exists, the Court held that the U.S. Congress had failed to adequately demonstrate that the jurisdictions identified in Section 4 of the Act, including Texas, were still practicing such levels of racial discrimination as to warrant a continuation of their inclusion in the requirements of Section 5 preclearance procedures.
With that finding, the Supreme Court struck down only Section 4 of the Voting Rights Act, and left the option of renewing the definition of covered jurisdictions with the U.S. Congress. That ruling has left some with questions. This article will attempt to answer those questions.
Question 1: Are Texas Counties still required to submit changes in voting policy, practice or method to the Department of Justice?
Because Section 4, which identified the jurisdictions subject to the Voting Rights Act was repealed as unconstitutional, Section 5 is presently unenforceable until the U.S. Congress takes appropriate steps to hear testimony and establish by sufficient evidence the presence of racial discrimination in a state or political subdivision of a state. Without Section 4, Section 5 is inoperative.
Question 2: Do Texas Counties still have to comply with the Voting Rights Act’s other sections?
Section 2 is still in effect. Thus, a political jurisdiction that makes any changes in their voting policies, practices, procedures or methods should still take into consideration the fundamental constitutional rights contained in Article 15 of the U.S. Constitution, which provides that “[t]he 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.”
Although Section 5 is no longer operative, and Texas Counties are no longer required to obtain preclearance before implementing changes made in their voting practices, Section 2 can be used against any state or local government by an individual who believes the local government has taken steps which have the effect of denial or abridgment of their right to vote. In order to protect itself against such claims, each state or local government should be cautious in making any changes to political boundaries, polling places, hours of election, or virtually any other policy, practice, procedure or method of holding elections. By “cautious,” we mean that the same level of care given to these procedures while Section 5 was in effect should be followed now, with the preparation and retention of supporting documents necessary to demonstrate that the proposed change does not have a discriminatory intent, nor will the proposed change have a discriminatory effect. Although the local governmental entity will not be required to submit anything to the Department of Justice, the process should be virtually the same in terms of thinking through the proposed change, and subjecting the proposed change to a voting rights Section 2 analysis of discriminatory effect. Finally, the governing body of the local government, such as the Commissioners Court, should most likely make sure to include the supporting analysis in the minutes of the court when the Order authorizing the change is adopted.
Question 3: Do you need to retain a lawyer for these sorts of changes?
Answer: It depends.
Typically, minor changes such as a polling place change due to unavailability of the former polling place, or other such changes that do not alter substantial voting rights, such as a boundary change, can be done without the benefit of legal counsel. Any change that might change the racial composition of the electorate in an election, however, such as Commissioner or JP precinct boundary changes, consolidation of election precincts, and relocation of polling places in strongly ethnic neighborhoods, should be treated with great care and with the benefit of legal evaluation and assistance.
You are cautioned that the Voting Rights Act is still in existence, and the underlying constitutional principles that support the Voting Rights Act are still applicable and enforceable by way of Section 2 of the Act. Therefore, you are not free to ignore these principles and to vacate prior voting plans, or return to practices that would have been determined a violation of the Act prior to the Shelby County v. Holder decision.
If you have questions, please contact us at 1-800-733-0699. H