10E - American Bar Association

10E

AMERICAN BAR ASSOCIATION ADOPTED BY THE HOUSE OF DELEGATES AUGUST 12-13, 2013 RESOLUTION Resolved, That the American Bar Association urges the United States Congress to act expeditiously to preserve and protect voting rights by legislating a coverage formula setting forth the criteria by which jurisdictions shall or shall not be subject to Section 5 preclearance and/or by enacting other remedial amendments to the Voting Rights Act of 1965, including but not limited to, strengthening the litigation remedy available under Section 2, or expanding the “bail-in” provision under Section 3 (or some combination of these concepts), in response to Shelby County v. Holder.

10E REPORT When the Supreme Court ruled in Shelby County v. Holder1 on June 25, 2013, it took away one of the most effective remedies against racially discriminatory voting laws that this country has ever seen. This resolution calls upon the United States Congress to pass legislation that would have the effect of reinstating the principles afforded by this remedy. By ruling Section 4 of the Voting Rights Act of 1965 (“VRA”)2 unconstitutional in Shelby County, the Court also effectively eviscerated Section 5, the provision that required certain jurisdictions’ voting changes to be “precleared” by the United States Department of Justice or a 3-judge panel of the U.S. District Court for the District of Columbia before they could go into effect. The “coverage formula” contained in Section 4, which established the standards by which certain jurisdictions would be required to seek preclearance, had been reauthorized repeatedly by Congress--in fact, as recently as 2006 by a unanimous vote in the Senate and a wide majority in the House of Representatives. SHELBY COUNTY’S DAMAGE TO VOTING RIGHTS With no coverage formula in place, however, Section 5 is largely an empty promise and cannot be enforced. Indeed, preclearance of voting changes will not be available at all, except in the few circumstances described under the “bail-in” provision of Section 3.3 Thus, there is currently no generally applicable pre-implementation backstop against discriminatory voting changes, which, prior to the Supreme Court’s ruling, were required to be precleared in all or part of 16 states. Justice Roberts’ majority opinion in Shelby County issued a challenge to the Congress to come up with a constitutional coverage formula or risk a long-term or permanent loss of Section 5’s preclearance provision. Some of the academic and political debate since the decision has focused on Section 2 of the VRA, and whether it is an equally effective tool for plaintiffs raising racial discrimination claims under the Voting Rights Act. But anyone familiar with the history of litigation under Section 2 would have to conclude it is not. (It should also be noted that some of the same “experts” who have sung the praises of Section 2 in recent days have expressed doubts about its constitutionality.) Of course, Section 2 applies nationwide and prohibits voting discrimination on the basis of race, color, or language minority status. However, unless a court grants an injunction, which is extremely rare in Section 2 cases, it can only be used once an allegedly discriminatory law goes into effect and not before. 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, 1

Shelby County. v. Holder, 133 S. Ct. 2612 (2013) 42 U.S.C. § 1973 3 Section 3 of the VRA, 42 U.S.C. § 1973a(c), provides an alternative “preclearance” regime that can be specially ordered by a federal court, upon a finding that the jurisdiction violated the Fourteenth or Fifteenth Amendments to the Constitution. The court, in its discretion, may order preclearance for all voting changes, for a particular type of voting change (e.g., redistricting), for an indefinite period of time, or for a finite period, For an extensive discussion of Section 3, see Travis Crumb, The Voting Rights Act’s Secret Weapon: Pocket Trigger Litigation and Dynamic Preclearance, 119 Yale L.J. 1992 (2010)., 2

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10E 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 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. THE ABA’s LONGTIME SUPPORT OF THE VOTING RIGHTS ACT As the national voice of the legal profession, the ABA has taken special responsibility for protecting the rights guaranteed by the Constitution and fostering the rule of law. In 1973, for example, the ABA created a committee (now the Standing Committee on Election Law) to examine and develop ways to improve the federal electoral process. In 1981, when Congress began hearings on the reauthorization of the Voting Rights Act, the Committee held a symposium attended by representatives from congressional committees, civil rights groups, academia, and state governments. In recommending that the ABA support reauthorization of the VRA, the committee reported that the Act “has not only enhanced the political posture of minority groups, but it has also advanced the very ideals that make our country’s governmental system unique in political history.”4 The committee also reported: The Voting Rights Act has been called the most effective civil rights law ever enacted in view of the large number of minority politicians elected to office subsequent to its passage. There is clear evidence that as soon as the Act comes into play, the number of minority politicians elected to office increases dramatically. Also, there is general agreement that the Act has been instrumental in developing a political community of interest and awareness in minority communities.5 In 2005, the ABA adopted a policy that supported the 25-year extension of the VRA, stating in the accompanying Report that “despite the progress that has been made since the passage of the Act, members of minority groups still face discrimination in exercising their right to vote.” ABA 2005 Report with Recommendation #108 at 1.6 Reauthorization would “enable continued efforts to prevent and dismantle discrimination in voting[,]” “enhance access to the political process, deter and/or document ongoing abuses and prohibit discriminatory voting practices.”. As the Report concluded, “because of the persistence of discriminatory behavior in the election 4

ABA Report with Recommendation #105 (adopted August 1981), published in 106 Annual Report of the American Bar Association 742, 745 (1981), available from the ABA archives. 5 Id. at 743. 6 Available at http://www.americanbar.org/content/dam/aba/directories/policy/2005_am_108.authcheckdam.pdf.

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10E process,” the ABA sought “to ensure that the Act remains a valuable tool in the struggle to preserve and protect voting rights for all Americans.” The ABA reaffirmed this policy in 2006, pursuant to which it participated in the congressional debates on the VRA’s 2006 reauthorization, ABA 2006 Report with Recommendation,7 stating that Section 5 is one of the Act’s “most important and effective” provisions; that it, along with its companion provisions, “will continue to be important factors and safeguards in making available the right to vote to all segments of our population… ”8 CONCLUSION Beyond the question of whether there are adequate remedies under the law without Section 5 preclearance, or whether the racial conditions addressed by the VRA are a thing of the past, we must take the Court at its word that Congress can reinvigorate Section 5 by legislating a new coverage formula for Section 4. Within hours of the Court’s decision in Shelby County, some jurisdictions that had been subject to preclearance under Section 5 announced that they would move to implement laws that had been blocked by the courts or by the Department of Justice. Thus, the harm caused by the loss of this unique remedy is immediate, real, and not speculative. It is essential that Congress act with similar dispatch. The fact that there have been improvements in the racial composition of the electorate—and the diversity of our elected officials—since 1965 is a direct result of the protections of the Voting Rights Act and would not have happened without them. As Justice Ginsburg so aptly put it in her dissent, “Throwing out preclearance when it has worked and is continuing to work to stop discriminatory voting changes is like throwing away your umbrella in a rainstorm because you are not getting wet.” Respectfully Submitted, Christopher Kearney President, Bar Association of San Francisco Stephen J. Wermiel Chair, Section of Individual Rights and Responsibilities August 2013

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Available at http://www.americanbar.org/content/dam/aba/directories/policy/2006_bg_exhibit_2_3.authcheckdam.pdf. Because legislation reauthorizing the VRA was introduced in the United States House of Representatives and Senate in May 2006, but the ABA HOD did not meet until August 2006, this Report with Recommendation was adopted as ABA policy in June 2006 by the ABA’s Board of Governors, acting pursuant to ABA by-laws. 8 The ABA’s participation included letters sent to Congress supporting reauthorization. See, e.g., Letter from Robert D. Evans, Director, ABA Governmental Affairs Office, to House of Representatives (June 20, 2006), http://www.abanet.org/poladv/letters/electionlaw/060620letter_vra_reauth_house.pdf; Letter from Robert D. Evans, Director, ABA Governmental Affairs Office, to Senate 2 (July 20, 2006), http://www.abanet.org/poladv/letters/election law/060720letter_vra_reauth_senate.pdf.

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10E GENERAL INFORMATION FORM Submitting Entity: Bar Association of San Francisco Submitted By: Christopher Kearney, President 1. Summary of Resolution(s). This resolution urges the United States Congress to act expeditiously to preserve and protect voting rights by legislating a coverage formula setting forth the criteria by which jurisdictions shall or shall not be subject to Section 5 preclearance and/or by enacting other remedial amendments to the Voting Rights Act of 1965, including but not limited to, strengthening the litigation remedy available under Section 2, or expanding the “bail-in” provision under Section 3 (or some combination of these concepts), in response to Shelby County v. Holder. 2. Approval by Submitting Entity. The Bar Association of San Francisco approved the filing of this resolution on July 25, 2013. 3. Has this or a similar resolution been submitted to the House or Board previously? In 2005, the ABA adopted a policy that supported the 25-year extension of the Voting Rights Act and in 2006 the ABA reaffirmed this policy and urged amendments strengthening its provisions. 4. What existing Association policies are relevant to this Resolution and how would they be affected by its adoption? See above. This policy would address the U.S. Supreme Court’s recent decision in Shelby County v. Holder urging Congress to establish a coverage formula setting forth criteria by which jurisdictions shall or shall not be subject to Section 5 preclearance of the Voting Rights Act. 5. If this is a late report, what urgency exists which requires action at this meeting of the House? As a local bar association submission, this resolution is not a late report. Its timing was determined by the Supreme Court’s recent decision in Shelby v. Holder on June 25, 2013. 6. Status of Legislation. (If applicable) None pending. 7. Brief explanation regarding plans for implementation of the policy, if adopted by the House of Delegates. This policy resolution would allow the ABA to participate in deliberations concerning the creation and adoption of a formula to establish which jurisdictions shall or shall not be subject to Section 5 preclearance coverage.

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10E 8. Cost to the Association. (Both direct and indirect costs) Adoption of this Recommendation would result only in minor indirect costs associated with staff time devoted to the policy subject matter as part of the staff members’ overall substantive responsibilities, and the costs of updating documents which list the Association’s goals. 9. Disclosure of Interest. (If applicable) There are no known conflicts of interest 10. Referrals. This resolution has been referred to the following entities: Section of Individual Rights and Responsibilities Section of State and Local Government Standing Committee on Election Law Commission on Diversity in the Profession Council on Racial and Ethnic Justice 11. Contact Name and Address Information. (Prior to the meeting. Please include name, address, telephone number and e-mail address) Mark Schickman Freeland Cooper & Foreman LLP 150 Spears Street, Suite 1800 San Francisco, CA 94105 Tel: 415-541-0200 Cell: 510-467-2909 Russell Roecca Roecca Haas Hager LLP 351 California Street, Suite 900 San Francisco, CA 94104 Tel: 415-901-4201

12. Contact Name and Address Information. (Who will present the report to the House? Please include name, address, telephone number, cell phone number and e-mail address.) Mark Schickman Freeland Cooper & Foreman LLP 150 Spears Street, Suite 1800 San Francisco, CA 94105 Tel: 415-541-0200 Cell: 510-467-2909

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10E EXECUTIVE SUMMARY

1.

Summary of the Resolution Urges the United States Congress to preserve and protect voting rights by legislating remedial amendments to the Voting Rights Act of 1965, in response to Shelby County v. Holder, including but not limited to: a new coverage formula setting forth the criteria by which jurisdictions shall be subject to Section 5 preclearance; strengthening the litigation remedy available under Section 2; expanding the "bail in " provision under Section 3; or some combination of these concepts.

2.

Summary of the Issue that the Resolution Addresses When the Supreme Court ruled in Shelby County v. Holder on June 25, 2013, it took away one of the most effective remedies against racially discriminatory voting laws that this country has ever seen.

3.

Please Explain How the Proposed Policy Position will address the issue This resolution calls upon the United States Congress to pass legislation that would have the effect of reinstating the principles afforded by this remedy. By ruling Section 4 of the Voting Rights Act of 1965 (“VRA”) unconstitutional in Shelby County, the Court also effectively eviscerated Section 5, the provision that required certain jurisdictions’ voting changes to be “precleared” by the United States Department of Justice or a 3-judge panel of the U.S. District Court for the District of Columbia before they could go into effect. The “coverage formula” contained in Section 4, which established the standards by which certain jurisdictions would be required to seek preclearance, had been reauthorized repeatedly by Congress--in fact, as recently as 2006 by a unanimous vote in the Senate and a wide majority in the House of Representatives.

4.

Summary of Minority Views None known at this time.

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