Election Law UGA

1870-1960s

Disenfranchisement through Jim Crow laws is in full swing Poll Taxes Literacy/Moral Tests Grandfather Clauses White primaries Violence/Intimidation

Georgia in 2002

Districts were drawn to protect Democrats by pitting incumbent Republicans against each other Both districting plans were designed to protect Democrats and oust Republicans Population deviances were <5% but were gerrymandered for the Democrats

Senate Judiciary Committee Report

9 factors for describing whether or not something violates section 2: Is there a history of official minority voting discrimination? Is there racially polarized voting? Are voting practices used to discriminate against a minority group Are minority candidates denied access to the slating process? Does discrimination affect socioeconomic areas such as education, employment, and health? Are there overt or subtle racial appeals in campaigns? Are minority candidates able to win elections? Are elected officials responsive to the concerns of the minority group? Is the justification for the challenged law tenuous?

Justiciability

1. Means that the Federal Court may adjudicate the matter 2.Issue must be: a.Ripe - actual controversy b.Not moot - issue hasn't be resolved previously c.Not a political question - must not be a politically charged issue better addressed by the other branches of government Cases that are political in nature are marked by: Textually demonstrable constitutional commitment of the issue to a coordinate political department A lack of judicially discoverable and manageable standards for resolving it The impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion The impossibility of a court's undertaking independent resolution without expressing lack of the respect due to coordinate branches of government An unusual need for unquestioning adherence to a political decision already made The potentiality of embarrassment from multifarious pronouncements by various departments on one question

1856-1870

13th Amendment was ratified (1865) Slavery was eliminated Except for persons convicted of a crime Ratified as a condition of re-entry into the Union 14th Amendment was ratified (1868) All people born or naturalized in the US are citizens Also includes the Equal Protection Clause First major check on the powers of the states 15th Amendment (1870) All people have equal rights no matter their previous condition of servitude or race Wasn't readily enforced in this period

Cox v. Larios

Arguments: Defendants argued that there is a "safe harbor" of deviance of <10% as a result of Gaffney v. Cummings Plaintiffs argued that the 10% safe harbor cannot be used as a tool to create Unconstitutional partisan gerrymanders Opinion: The three-judge panel struck down a districting plan on one person, one vote grounds despite the deviations under 10% SCOTUS plurality affirms the decision Said that even minor deviations under 10% must have some sort of neutral justification After Cox v. Larios Harris v. Arizona Independent Redistricting Commission (2016) Unanimous SCOTUS decision that Arizona districts, that deviated mathematically and appeared to favor Democrats, did not violate the EPC Population deviations of less than 10% can be justified if they are serving a rational state interest Rational interest examples: compactness, contiguity, maintaining political and administrative boundaries, maintaining communities of interest, compliance with the VRA, balancing competition between political interests, and incumbency protection The Arizona deviances could be explained by adherence with the VRA and could, therefore, be rationalized For a plan to violate one person, one vote, illegitimate considerations had to predominate in explaining those deviances

Georgia v. Ashcroft

Background 1997-1991 had a single increase in the number of black population over 50% in districts State senate districts were drawn to: Maintain number of majority black districts Unpack supermajority districts and create additional black voter influence Increase number of democrat leaning districts Georgia democrats are about to lose the state senate to the GOP Districts 12, 2, and 26 created a lesser opportunity for black voters to win BVAP declined from 55-62% in these districts to just over 50% District Court declares this constitutes a retrogression of racial minority representation in their electoral franchise (the Beer standard) BVAP does decrease in almost all majority-minority districts SCOTUS Ruling Does not rule whether or not the plan was retrogressive Left that to the district court Says District Court did not consider all factors Increases the BVAP in other districts Says it ignored evidence that other districts can elect black senators despite unpacking their districts Major Thing in this ruling: A plan can be non-retrogressive if jurisdiction increases the number of "influence districts" or districts that elect candidates that are sympathetic to minority interests even if it reduces the ability of minority voters to elect candidates of their choice

Johnson v. De Grandy (1994)

Background Hispanic voters in FL claiming the 1992 state house/senate map violated Sec. 2 Allege not enough majority-minority districts exist Justice Dept. files a similar case for Dade County about packed and fragmented minority districts and creating fewer than possible majority-minority districts Both cases allege FL violated Sec. 2 SCOTUS consolidates the cases to address the question Opinion SCOTUS says that the number of majority-minority districts in Dade County are almost exactly proportional to the minority VAP in the county for both house and senate plans Rules that since proportionality exists, this then failed the "totality of circumstances" portion of the Gingles Test Despite the fact that more majority-minority districts could be drawn Ruling implies that proportionality is strong evidence for equal political opportunity Plans can still maximize majority-minority district number, however (proportionality is not dispositive)

Shaw v. Reno (1993)

Background NC redraws districts after 1990 Sends the plan to DoJ with 1 majority-minority district DoJ rejects the plan saying that 2 majority-minority districts could be drawn NC then redraws districts with 2 majority-minority districts that are highly irregular in shape to satisfy the DoJ White voters in these districts sue claiming districts 1 and 12 violate the EPC because they deliberately segregate voters on the basis of race without a compelling justification This is NOT a vote dilution or one person one vote claim The District Court rejects this claim saying it is not discriminatory SCOTUS Appeal and Opinion: SCOTUS disagrees; it says that race-based districting no matter what requires strict scrutiny under the 14th Amendment Districts 1 and 12 in this case are so bizarre that race is the only factor in their structure and must be subject to that strict scrutiny SCOTUS says the district court must consider whether the districts were narrowly tailors to serve a government interest (the VRA in this case) and is done so in the least restrictive way possible Does not decide on the case specifically but gives new precedent and remands the case back to the lower courts

Holder v. Hall (1994)

Background Originally Bleckley County, GA had a sole commissioner In 1985, GA changed state law allowing county authorities to grow to 5 member commissioners with 5 single-member districts Bleckley Cty. decides not to change Since it's 20% black in its population, a 5-commissioner district commission would make a majority-minority district possible Plaintiff's sue saying that the decision violated Sec. 2 via dilution through submergence On Appeal, the Court says: Gingles test is satisfied in its criteria (The District Court ruling originally says otherwise) The totality of circumstances does suggest liability as well However, the size of governing authority is not subject to vote dilution claims under Sec. 2 Thomas' Partial Concurrence: Thomas thinks that the Court is entering the political thicket and attempting to answer political philosophy questions regarding vote dilution claims Court is extending beyond its reach Note: For the Gingles Test, it still needs to pass the "totality of circumstances" test of standing Needs to prove that the minority group has less opportunity than the majority to participate electorally and elect candidates of their choice Note: Sec. 2 also creates the precondition that districts must be created for minority opportunity when the 3 prong test of Gingles is applicable One of the major implications of Gingles is that the Court, when deciding whether vote dilution exists, is to determine what the result would be without dilution Until De Grandy, lower courts favored maximum representation in determining how many majority-minority districts should exist

Shelby County v. Holder (2013)

Background Shelby County, AL sues US AG seeking a judgment that Sec 4(b) and 5 are Unconstitutional District Court upholds both provisions, as does DC District Court Appealed to SCOTUS Opinion: Sec. 4(b) coverage formula conflicts with the principles of federalism and "equal sovereignty of the states" partly derived from the 10th Amendment States have the authority to regulate their own elections The coverage formula is out of date with current circumstances Current day racial representation and voting procedure is no longer as it was in the 60s and 70s Sec. 4 is unconstitutional since the geographic coverage is disparate and unrelated Originally constitutional in the beginning since such an extreme circumstance of racial oppression required massive action, but such circumstances no longer exist However, the idea of covered jurisdictions and the necessity of preclearance isn't unconstitutional on its own

Alabama Black Caucus v. Alabama (2015)

Background The AL State legislature map was drawn by the GOP Maintained minority vote % across districts AL Black Caucus sues, says race was the predominant factor in redistricting The District Court then says there was a compelling government interest in avoiding retrogression AL Black Caucus appeals to SCOTUS Majority Opinion SCOTUS says to look at these districts on a case-by-case basis for racial gerrymandering evidence Equal population cannot be considered when asking whether race is the predominant factor in this case Sec. 5 retrogression standard did not require equal % of racial minority votes to elect a member of their choice So, since the VRA was not a compelling government interest in this case and that equal population is not the predominant factor, the district court must look at specific districts to consider if race was the predominant factor Major implication: states cannot have one person one vote as the justification for racial gerrymandering

Bartlett v Strickland (2009)

Background Until this point, there is still a question as to what constitutes a minority group to be "sufficiently large" (part 1 on the Gingles Test) District 18 for the NC state house falls below 50% BVAP in 2003 There's no way to draw a compact district 18 to obtain a numerical majority NC then resorts to drawing a district to get crossover majority voters to comply with the VRA Drawing it this way violates the whole county provision in the NC State Constitution NC defends the district in court as complying with Sec. 2 The State Supreme Court strikes down the plan saying that minority voters must constitute a numerical majority in a given area for a majority-minority district be potentially needed as to satisfy the first Gingles precondition Not enough minority voters in the VAP area to pass the first Gingles Test prong and therefore this district drawing simply violates the NC State Constitution provision NC then appeals to SCOTUS that affirms the NC State Supreme Court decision

Thornburg v. Gingles (1986)

Background and Ruling NC enacts new house and senate districts in July of 1981 Some districts are multimember Plaintiffs claim the black vote was submurged by multimember districts This violates sec. 2 even if the intent wasn't discriminatory The question: do the multimember districts of NC violate sec. 2 by impairing the ability of black voters to elect representatives of their choice? District court says yes, so does SCOTUS (except for district 23 but 5 of the 6 in question are unconstitutional) District 23 has proportional representation

Reynolds v. Sims

Background: AL legislature had 106 representatives and 35 senators from 67 counties Legislators supposed to be apportioned across districts according to population After 1901, apportionment hadn't been done at all ¼ of the population could elect a majority in the house and senate 2 Proposed alternatives: 67-senator amendment and the Crawford-Webb Act Voters in AL charged malapportionment as seen violated the EPC Opinion: "The right to vote in a free, unimposed manner is preservative of other basic rights" Apportionment to dilute the votes of some and bolster others violates the EPC The EPC requires states to make honest, good faith efforts to construct an equally populated district plan (as much as possible) Legislators represent people, not trees or acres Harlan's Dissent: EPC was never designed to inhibit states from any democratic process a state decides to pursue for apportioning legislatures The right to vote was a not a privilege or immunity intended for protection by the 14th Amendment. If it was, then why would you need the 15th Amendment? The Federal Analogy is also a part here

Evenwel v. Abbott (2016)

Background: After 2010 census, Texas redraws its districts (state senate) to have roughly equal population Districts are to be used in 2012 election However, the first redistricting plan would not be precleared in time by the DoJ in time for the election US District Court in Texas drew a map to be used in the interim Texas then decides to adopt this map as its permanent one Districts have a maximum population deviation of 8% Legal Background: Two voters in districts in which the district population and the voting population deviate greatly They bring suit because some districts have a maximum deviation in voting population of 40% Plaintiffs claim this deviation violates the one person, one vote principle They claim that the one person one vote principle is to ensure voters have equal standing in their voting ability Only voters have standing and the goal should be used to equalize voting population and not total population Opinion: Districts may very well be drawn to represent voting population because it's not for the courts to decide in this case Unanimous decision in which total population districting promotes equity in representation which is the point of one person one vote For every quote advocating for voting population districting, there is another for total population districting

Voting Rights Act

Background: Just signed after the Civil Rights Act of 1964 CRA wasn't just good enough though Despite LBJ's concerns to avoid losing Dixiecrat coalition, after Bloody Sunday and the Selma March, he introduced the VRA Considered one of the single most effective pieces of legislation ever, and signed into law on August 6th, 1965 Originally created to just enforce the 15th Amendment Section 2 is a more detailed version of the 15th Amendment No voting qualifications, prerequisites, standard, practice, or procedure shall be imposed to abridge the right to vote of any citizens based on race or color Especially went after literacy tests Section 4 declared that any covered jurisdiction can't deny the right to vote to any eligible citizen in any election, period Covered jurisdictions were ones that had used tests or devices, less than half of the VAP had been registered to vote, or less than half of the VAP had voted in an election as of November 1964 Tests of literacy, education, moral character or any voucher of any kind weren't allowed Coverage of Section 4 covered all of AZ, TX, LA, MS, AL, GA, SC, VA, AK Covered parts of NC, FL, CA, SD, MI, NY, minor parts in New England, WY, OK, NM, ID, and CO These jurisdictions could be bailed out if a jurisdiction could prove that it hadn't been using a test or device for 5 years But jurisdictions under Sec. 4 remained covered if declaratory judgments had occurred against them, etc. In 1975, the coverage formula was updated Jurisdictions that had a 5% language minority of the CVAP that didn't comply with providing voting materials in those languages got covered immediately and triggered the VRA Sec. 4 coverage ended with the Shelby County Decision Section 5 declares that covered jurisdictions cannot change any part of voting, districting, etc. without obtaining preclearance from the Dept. of Justice (DoJ) However, a jurisdiction can receive approval from a 3 judge panel in the DC District Court and appellees may appeal directly to the SCOTUS

Raleigh Wake Citizens Association v. Wake County BOE

Background: Prior to 2010, Wake County School Board was dominated by Republicans 9 Districts have a max population deviation of 4.8% After 2010, districts were redrawn to have a max population of 1.78% and was then dominated by Democrats Districts were again changed to 7 single-member districts from 9 single-member districts with the addition of 2 super districts by the NC state legislature District Court then ruled they were Constitutional Later appeal to an Appeals Court reversed that decision Partisan intent was shown to predominate in the explanation for the redistricting which isn't allowed A computer simulation was used by Dr. Chen to show that after like a hundred computer-drawn district plans gave a number of fairer results using all previous court-ordered standards and none came close to looking like the NC state legislature's plan Dissent on the Case Deviations in the population are minor Difficult to obtain mathematical equality in the first place With minor deviations, there is only a need to show a rational basis Dr. Chen did not consider communities of interest or incumbency protection as potential neutral criteria Broader Impact: Opens the door for courts to strike down political gerrymandering But the courts still rarely tackle purely political gerrymandering and avoid creating a judicial precedent/test

After the Court's Ruling on Baker

Baker v. Carr Ruled apportionment question was justiciable under EPC Did not give a ruling or remedy to the issue specifically however Wesberry v. Sanders Rules Congressional Districts involving malapportionment is Unconstitutional Strikes down a GA districting plan Court rules on Art. 1 Sec. 2 in this case, NOT the 14th Amendment or EPC 4 months later, Court rules on Reynolds v. Simms Fully establishes the one person, one vote rule Malapportionment is made fully illegal

Background of Other Important Cases

Baker v. Carr - made malapportionment justiciable Reynolds v. Simms - EPC says districts must have as equal population as possible w a population deviation of <10% Gaffney v. Cummings - State districting can deviate from the 10% standard rule without justification A plan with a max deviation of 7.8% was ruled Constitutional even though partisan considerations were proved to predominate. Appears to set the standard of 10% across the board for state legislative districting However, Federal districts have a hard requirement for mathematical equality (see Karcher v. Dagget, 1983) After Gaffney, lower courts increasingly asked for justifications for even minor deviances Vieth v. Jubelirer (2004) - political districting alone was not a justification Cox v. Larios (2004) - declares that a deviation of 10% is not a "safe harbor" against Constitutional challenges Vieth v. Jubelirer and Cox v. Larios give precedent that political districting is also justiciable. Political considerations alone which result in population discrepancies is not a good reason alone to give such a deviation even if it's less than 10% Removed the "safe harbor" principle Gerrymandering still sort of can happen so long as there is a neutral consideration involved as well and deviance in population is minimized or nearly entirely eliminated

Miller v. Johnson (1993)

Basic Overview After several attempts, GA creates 3 majority-minority districted map One district goes from ATL to Savannah (nicknamed the Sherman District) SCOTUS rules the plan is unconstitutional because the only factor that could explain its irrational shape and coverage were racial concerns This type of district was not needed to follow the VRA

Key Precedents

Breedlove v. Suttles (Overturned by Harper v. Virginia) Poll taxes are discriminatory but may not be sufficient for it to be wrong Discrimination is a rational one Does not violate the 14th Amendment but may violate the 19th amendment because it placed "undue burden" on the husband and assumed head of household Lassiter v. Northampton County BoE Court ruled literacy tests do not violate the 14th Amendment It's not discriminatory to one specific group and therefore does not qualify Case still stands to this day Only illegal due to VRA

Baker v. Carr (1961)

Charles Baker - Republican in Memphis (Shelby County, TN) Joseph Carr - Sec. of State of TN TN had not redrawn districts since 1901 in violation of TN Constitution Demographics had naturally shifted over time Baker alleges this diluted his vote TN apportioned seats in state house among the state's 95 counties District Court initially dismissed the case Cited Colegrove v. Green Appealed to SCOTUS and granted writ Majority Opinion: 6-2 majority stated that the Court did have the ability to adjudicate cases regarding redistricting District court had jurisdiction on the matter Cited Art. 3 Sec. 2 of the Constitution Appellants had standing to maintain suit Complainant's allegation that it violated EPC is a justiciable issue that warrants a trial and decision Not a political question Court did not rule on this case specifically but rather remanded it to the lower courts again for considerations with the instruction that yes the district court can rule on this

Literacy Tests

Common disenfranchisement device well into the 50s and 60s Did not violate EPC according to Lassiter v. Northampton County BoE (1959) Often included Grandfather Clauses (which were all declared Unconstitutional by Guinn v. US in 1915)

White Primary

Dem Primaries are first held in the South in 1870s White Primaries excluded nonwhite voters and citizens NAACP spearheaded effort to remove them Unconstitutional by Smith v. Allwright (1944)

Poll Taxes

First adopted in GA in 1877 Adopted by the entire South by 1904 Repealed in NC, GA, LA, SC, and TN by the 50s Unconstitutional by the 24th Amendment in 1964 Declared Unconstitutional in ALL elections by Harper v. Virginia in 1966

Bailout from Coverage

For a covered jurisdiction to be eligible from preclearance coverage, it must: Have not used a test or device for 10 years to test voter eligibility Have not had a court conclude that a racially discriminatory voting procedure was utilized in the past 10 years Have proven that discriminatory election practices are abolished Have no preclearance objection for 10 years Have had active efforts on the end of the jurisdiction to improve voter participation These requirements are subjective and made bailing out of coverage really hard

Earl Warren (As Chief Justice)

His tenure gave us: Brown v. Board - separate is not equal Gideon v. Wainwright - right to an attorney is essential at all levels of trials Miranda v. Arizona - Miranda Rights Loving v. Virginia - interracial marriage is okay and legal The most important case of his tenure (in his words) : Baker v. Carr

Beer v. US (1976)

In New Orleans, 45% of the total population is black but only 35% of the voting population is eligible to vote Districts are 5 single-member and 2 at large In 1961, the council draws one majority-minority district and no black councilmen are elected from 1960-1970 In 1970, the council redraws districts again Submits 2 plans for preclearance: 1 without majority-minority districts and 1 with 2 majority-minority districts (only one with majority black voting population) AG rejects both plans on account of vote dilution NO then seeks declaratory judgment from district court asking for plan 2 to take effect The District Court rules that both plans proportionally underrepresent black people and black voters NO then appeals to SCOTUS SCOTUS Opinion: Stewart's Opinion (Majority) Sec. 5 only applies to changes in voting procedure post-1964 Since the at large districts existed before, they're not subject to review The plan is not retrogressive since it makes 1-2 black districts whereas there was just Since no retrogression exists, the plan does not violate Sec. 5 unless new apportionment itself so discriminates racially as to violate the Constitution So, SCOTUS overturns the District Court's previous ruling and allows plan 2 to go into effect

Kramer v. Union Free School District No. 15

Kramer is 31 years old living with his parents (what a loser right lmao) NY law states that someone must hold or lease taxable property or be a spouse of someone who does or be a parent/guardian of an attendee in the district to vote in the district Opinion If a state holds an election but selectively franchises it, they need to determine whether the exclusions are compelling to a state interest The purpose is to limit the franchise to people it affects The opinion states that NY law does not accomplish this purpose with sufficient precision Gives examples in which people with legit interests would be excluded from their right to affect change at the school board level Law does not pass the bar of reasonability AND narrowly tailored

Schuit and Rogowski (Paper, 2016)

Members of Congress from covered districts voted 12-13% more in favor of civil rights legislation These legislators were substantially more supportive of civil rights legislation

Franchise Expansion: 1940s-Today

Litigation Campaigns Supreme Court Cases Voting Rights Act Constitutional Amendments

Allen Et. Al. v. State Board of Elections (1969)

Made up of four cases regarding: MS county superintendent appointment/elections MS county supervisor election procedur MS law restricting the ability of individuals that voted in a primary to run as independents VA law requiring individuals needing assistance from an election judge for writing in candidate names if unable to do so because of illiteracy Background: The state did not obtain consent from the US Attorney General or a favorable declaratory judgment in any of these cases These suits were initiated in Federal Court by private citizens Major Questions addressed: Can a private litigant initiate a suit under VRA Sec. 5? Does a Federal District court have jurisdiction? Are 3-judge panels to hear the cases with direct appeal to SCOTUS? Do the provisions in the 4 cases need preclearance under VRA Sec. 5? The answers to all the above questions is YES The provisions of all 4 cases fall under the purview of preclearance, private citizens are completely allowed to bring suit under Sec. 5, Federal District Courts have jurisdiction in all these cases, and a 3-judge panel must hear these cases with the ability to appeal to SCOTUS Harlan's Partial Dissent His interpretation is a narrower view of Sec. 5 of the VRA Says it was designed to target "tests and devices" described in Sec. 4 and not apply to those previsions that restrict registration and voting Should not apply to vote dilution Implications of Allen In the 3.5 years preceding Allen, the DoJ only objected to only six proposed changes and none involved vote dilution In the 3.5 years after, the DoJ objected to 118 proposed changes with 88 involving vote dilution

1787

No Federal voting standard Full authority to the states Mostly right just to white, landowning males aged at 21 or older

Colegrove v. Green

Outlines, in this case, outlines the population of the most and least populous districts to show just how unequal the numbers are Ex: In 1946, IL-5 had 112k while IL-7 had 995k and AL-9 had 459k while AL-6 had 251k people Background: IL failed to redraw districts in 1901 Major population changes had happened between 1901 and 1946 Districts ranged from 112k to 900k residents 3 Voters sued IL Claim that the districts violated the 14th Amendment and Reapportionment Act of 1901 Alleged lack of geographic compactness and equal population 3 Judge panel initially dismissed this complaint Relevant Laws in this Case: Art. 1 Sec. 4 of the Constitution Gives power to the states for elections but Congress can dictate changes for Federal Elections IL Law of 1901 Establishing districts in IL Apportionment Act of 1901 Sec. 3 States geographic compactness and contiguity required for elected districts Needs as equal population as possible Apportionment Act of 1929 Fixes number of Representatives at 435 Majority Opinion: Reapportionment Act of 1929 does not say anything about equal population Legislative Apportionment says nothing about political questions which redistricting falls into as a question Non-justiciable issue even though the courts agreed it's an issue The Court wanted to avoid entering the "political thicket" They can really only say that districts are invalid Redistricting is a purely political issue and Congress only has exclusive authority in this situation The remedy lies w/the people

Gingles Test

Plaintiffs must show: The minority group is sufficient in number and compact enough to form a majority in a single-member district The minority group is politically cohesive The majority votes sufficiently enough as a bloc to enable it to usually defeat the minority group's preferred candidate If these conditions are met, then they must show that a minority group has a lesser opportunity to participate in the political process or elect a candidate of their choice (using senate report factors) The Gingles Test gave a standard for challenging multi-member districts

The right to vote cannot be abridged by:

Race, color, previous servitude (1870, 15th Amendment) Sex (1920, 19th Amendment) Failure to pay a poll tax or other tax (1964, 24th Amendment but only explicitly stated for Federal elections) Age once at age 18 (1971, 26th Amendment)

1982 Amendment to Section 2

Responding to the City of Mobile decision, Sec. 2 was amended to include "results" alone in triggering Sec. 2 Prohibits laws that discriminate even in the absence of a discriminatory intent Allows for 2 types of claims: 1) vote denial and 2) vote dilution However, the amendment includes a clause stating that the intent is not to have proportional minority representation as to its legal standard

Section 5 Challenge Limitations

Sec. 5 has its limits Only applies to covered jurisdictions Only prevents changes to laws that lead to retrogression in the position of minorities with respect to the exercise of electoral franchise Sec. 5 acts as the shield that defends against laws that make electoral practices more discriminatory and sec. 2 acts as the sword to fight them

VRA of 1965: Outline and Review

Sec. 5 outlines required preclearance for change in voting procedure and districting to ensure no retrogression Sec. 4 is the coverage formula for Sec. 5 A jurisdiction is covered if: A jurisdiction used a test or device to restrict registration and voting as of Nov. 1, 1964 Less than half of the jurisdiction's VAP were registered to vote as of Nov. 1, 1964 Less than half of the jurisdiction's VAP voted in a Presidential election as of Nov. 1, 1964 Coverage was supposed to initally last for five years When it was up, it was renewed in 1970 and the dates for coverage requirement extended to 1968, adding new jurisdictions Extended it to 10 years of coverage Amended and extended again in 1972 for the coverage to last for 17 years, with coverage formula amended to include the 1972 election Again amended in 1982 and extended to 19 years, but did not change the coverage formula triggers Sec. 2 gained its new amendment in this session In 1984, the new date for expiration, it was extended for an additional 25 years And in 2006, it was extended for another 25 years again

Voting Rights Act of 1965

Section 2: Prohibits states from enacting laws that deny or abridge the right to vote b/c of race; no vote dilution or retrogression Section 5: requires some states to get preclearance from the Federal Government (either the Justice Dept.) to enact laws that change procedures in the way voting is conducted Can also receive approval from a 3 judge panel in the 9th district court (DC district) Includes all of AZ, TX, LA, MS, AL, GA, SC, VA, AK Also parts of FL, NC, CA, and SD along with New England areas too

Equal Protection Clause

Tends to be triggered when a law makes a classification Most do not violate the EPC so long as the law is rationally related to a legitimate government interest If the classification is "suspect" (e.g. race, sex) or if it restricts fundamental rights (e.g. voting) then a stricter standard is applied To avoid violating it, the law must demonstrate that it: Serves a compelling government interest Is narrowly tailored and uses the least restrictive means to achieve that interest

The Court's Conclusion on Baker

The court is not to make policy The 14th Amendment is well understood and standards are established The opportunity to prove that an "invidious discrimination" exists and therefore be given to the appellants

Limitations of Gingles Test

The test is vague in its criteria O'Connor pointed out in her partial concurrence that in order to consider if vote dilution exists, one must determine what the result would be without dilution She feared that the court is approaching the overt requirement of proportional representation which goes against Congress' original design

1792-1856

Trends to universal white male suffrage over time All property requirements are gone by 1856 but some states still had tax-payer restriction

Section 2 of the VRA

Until 1982, it was pretty toothless The original 1965 version was interpreted to just restate the 15th Amendment and only prohibited directly or intentionally discriminatory practices The Court made rules that (in City of Mobile v. Bolden) the plaintiff must prove that there is discriminatory intent even if there is an effect that it depresses the franchise of minorities It's hard to prove intent

Race and Redistricting

Up until Shaw v. Reno (see later on), districting plans could be struck down when diluting the vote of racial minorities Sec. 2 and 14th Amendment challenges DoJ rejected plans with insufficient number of majority-minority districts After Shaw (and Miller v. Johnson in 1995), districting plans would also be struck down on account of racial gerrymandering independent of vote dilution Districts drawn with race as the predominant concern without being justified as narrowly tailored to meet a compelling government interest violates the EPC Racial gerrymandering is prohibited even if it enhances the vote of minorities

Harper v. Virginia State BOE

n 1964, resident Amie E. Harper couldn't register to vote w/o paying a $1.50 poll tax for all previous assessable years Sues VA BoE arguing it violated EPC Dismissed in lower court citing Breedlove v. Suttles (1937) Appealed to SCOTUS Opinion on Harper: "We conclude the State violated the EPC wherever it makes affluence... an electoral standard. Voter qualifications have no relation to wealth nor to paying or not paying this or any other tax" This is a discriminatory policy that requires careful scrutiny since the right to vote is central. Dissent on Harper: There is no fundamental explicit right to vote In the opinion, a poll tax is likened to the right to free speech and not one amendment protects the right to vote unlike the 1st Amendment The EPC allows for discriminatory laws so long as there is a rational and not an insidious/invidious purpose You may not agree with it, but that doesn't mean it's irrational or invidious Making it invidious can set the bar too high The Court held literacy tests are fine, why not poll taxes? Dissenters are saying that the Court is using the 14th to dictate good and moral policy