Research data proves the Supreme Court is wrong


Posted by AzBlueMeanie:

This reporting by Morgan Kousser at Reuters blows away the disingenuous sophistry of Chief Justice John Roberts in Shelby County v. Holder (and echoed by every pundit in the conservative media entertainment complex right-wing noise machine). Gutting the landmark civil rights legislation:

The Supreme Court’s Shelby County v. Holder decision on Tuesday essentially cast aside the key component of the nation’s most important civil rights legislation.

The five “conservative” justices castigated Congress for putting too much emphasis on history by failing to update the “coverage formula” in Section 4 of the landmark Voting Rights Act of 1965.

Section 4 specifies which states and local jurisdictions must “pre-clear”
with the Justice Department or the Washington district court all
changes in election laws – anything from adding voter ID regulations to
redistricting. Areas now subject to this federal oversight have had a
substantial history of voter discrimination.

Chief Justice John Roberts, in writing for the 5-4 majority, conceded
that the Voting Rights Act is largely responsible for a decline in
blatant voting racial discrimination efforts. Yet he declared the
federal oversight program “unconstitutional
on the grounds that it did not reflect “current conditions.” Instead,
he invited this most dysfunctional of Congresses to “draft another

But the chief justice is wrong.

Congress did not update the formula because it knows it still works. The comprehensive database that I assembled proves this.
Consider, from 1957 through 2006, almost 94 percent of all voting
rights minority lawsuits, legal objections and out-of-court settlements
occurred in jurisdictions now subject to federal oversight under the
Section 4 formula


My database, the largest assemblage of voting rights actions now available, is largely based on the same evidence presented to Congress. I have compiled many lists, including more than 4,000 voting rights “actions” — legal cases, Justice Department preclearance incidents and numerous out-of-court settlements that reduced discrimination against minorities.

Congress knew of most of this material when it reauthorized the Voting Rights Act in 2006, with a stunning, near unanimous vote of 98-0 in the Senate and 390-33 in the House.

This database material refutes Roberts’ contention that the information
Congress reviewed during the 2006 reauthorization “played no role in
shaping the statutory formula” that was renewed in that legislation

* * *

In his ruling, Roberts paints a rosy picture of decreasing inequality
since the Voting Rights Act first passed in 1965. But my database
challenges this position, revealing how voting discrimination efforts
have changed and morphed over the years.

* * *

In her dissent, Ginsburg meticulously detailed recent examples of
blatant discrimination against minorities in election laws. She noted
that Congress held 21 hearings and considered 15,000 pages of
legislative record before renewing the federal oversight formula in

Yet Roberts appeared to blithely assert — without examination — that
Congress’s 2006 decision to continue using the formula in determining
which jurisdictions should be subject to federal oversight could not
have been based on this mountain of evidence.

My database, however, shows that Congress acted wisely because it knew
that the formula works. Of 3,874 voting rights actions from 1957 through
2006, 3,636 — or 93.9 percent — came from jurisdictions covered under
the Section 4 formula.
Many depended on the coverage formula because
they were based on Justice Department objections, or drew “more
information requests” or lawsuits to enforce Section 5.

Suppose we look instead at cases and consent decrees filed under Section
2 — which can be filed anywhere in the country, in areas not subject to
federal jurisdiction as well as in covered jurisdictions. I have
identified 1,244 Section 2 actions from 1957 through 2006 — and fully
83.7 percent occurred in the jurisdictions subject to federal oversight

* * *

At least some of the voting rights cases in the 21st century — including, for example, those involving felon disfranchisement, voter identification laws and statewide anti-minority racial gerrymanders — have had political effects comparable to the literacy tests and poll taxes of the pre-1965, Jim Crow period. No wonder Roberts did not discuss the nation’s historic record in detail.

As the below graph on Section 5 cases and objections shows, even
though racial discrimination was more pervasive at the beginning of the
period than at the end, the number of Section 5 objections in the first
five years under the Voting Rights Act was small – only 24, compared to
63 in the five years before the 2006 renewal.


The pattern on the graph demonstrates dramatically how dependent the number of cases and objections was on the tenor of decisions by the Supreme Court and legislative changes by Congress. In essence, the Supreme Court tied the hands of the Justice Department — and then announced that it had lost its punch.

For example, decisions favorable to minorities, such as the 1969 Allen v. Board of Elections case and the 1982 amendments to the Voting Rights Act, made it easier to crack down on discrimination. After these rulings, Justice Department objections to discriminatory efforts soared.

But decisions that restricted Justice Department discretion, such as the 1993 Shaw v. Reno ruling, which made it more difficult to draw legislative districts that could elect minorities, and the 2000 Reno v. Bossier Parish, which redefined “intent” and which Congress overturned in 2006, caused the number of objections to plummet.

* * *

[T]he public may not realize that the vast majority of voting rights
actions focus on local jurisdictions — 3,628 or 92.2 percent of the
3,934 actions from 1957 to today in which minorities were successful

These low-profile cases are most likely to be adversely affected by
the Supreme Court’s suspension of Section 5 preclearance requirements.
It may be that a school board or city council will redistrict an
African-American officeholder out of his seat — as a city in Shelby
County did in 2008. Or a county governing body may shift from
single-member districts to at-large elections — as Osceola County,
Florida, did after the first Latino was elected to the county board in

Without Section 5, voters will have to file an expensive lawsuit
the Osceola County case cost $2 million and took several years to
litigate — rather than get a quick, inexpensive decision from the
Justice Department. Civil rights organizations lack the money and
resources to sue every jurisdiction that makes discriminatory changes,
and minority rights will go backward.

Surprisingly, neither the majority nor the minority opinion Tuesday brought up a significant demographic shift: Latinos are increasingly turning to the Voting Rights Act for help. Congress, however, is no doubt aware of this.

* * *

This demographic shift in the subjects of discrimination also shows the
way for a possible transformation in coverage. Under the law as amended
in 2006 and interpreted by the Supreme Court in the 2009 Northwest
case, local jurisdictions were allowed to “bail out” of coverage
if they had no voting rights violations for 10 years. An increasing
number of jurisdictions did just this.

Congress, if it can unite behind this effort,
could now rewrite Section 4 to grant automatic bailouts to
jurisdictions with clean records for such a period, as well as automatic
10-year “bail ins” for jurisdictions, including states, that are convicted of voting rights violations.

Congress must also move from a historical basis of coverage toward a
sociological framework — to consider Latinos as well as other
minorities. For any substantial minority group, especially one that is
expanding in numbers or influence, may be perceived by the local
political establishment as a threat. Congress should realize that
electoral discrimination in such areas is likely and needs special

Basing a new coverage scheme on the current percentage of the largest
minority group in a county would update Section 4 by basing it on
current demographic data — and continue the shift from the original
focus of the Voting Rights Act almost exclusively on African-Americans
to the more recent shared attention of the flexible Voting Rights Act on
Latinos, as well.

Counties in which any minority was 20% or more of the voting-age population in 2000

Section 5 has served the country well. It continues to work well since the framework it lays out to determine which jurisdictions require federal oversight is, my database shows, far more precise than the chief justice’s caricature of it. We must all mourn its demise.The
map delineating counties in which a single minority group made up 20
percent or more of the voting-age population in 2000 reveals what the
sociological aspect of a new coverage scheme might look like. Compare
this with a map that shades counties in which at least one voting rights
action took place between 1957 and 2006. While the 20 percent minority
counties do not overlap with counties with voting rights violations as
well as does the coverage scheme that the Supreme Court outlawed in the
Shelby County case, it at least answers the chief justice’s call for an
updated formula.

But a more practical, less ideological and more quantitative view of
the Voting Rights Act’s past than the one Roberts presented on Tuesday
may provide a guide to future congressional action and a strong piece of
legislation for the 21st century.

Thank you, Morgan Kousser. Your research is exactly the information the public needs to know, and is not being provided by the corporate media.