Topic Analysis: February 2014 and the Con Side

February 2014 Resolved: The Supreme Court rightly decided that Section 4 of the Voting Rights Act violated the Constitution.

Con can either argue that it wasn’t the “right” decision, or that “Section 4 of the VRA violated the Constitution” isn’t what SCOTUS actually decided. The latter option is not very workable – you would need much more time than what is given in PF to make the argument and you are fighting the language of the Supreme Court which did rule the formula of Section 4 unconstitutional.

Thinking about the first option, that this was not the “right” decision opens up a more successful avenue for Con. Thinking about right as moral, rather than as correct in the constitutional sense, gives the Con the most ground. Here Con can focus on either the Court making a morally incorrect decision or that the Court should not have been the actor to make the decision; rather, Congress should continue to update and change the act as it historically has.

You may want to point out on Con that this was a 5-4 decision by the court. This means Section 4 was ruled unconstitutional by a narrow margin; by no means was it a unanimous decision. Perhaps remind the judge to be open to hearing what they court did not rule and decide for himself or herself.

One advantage Con has in this debate is everything that has occurred since the Court’s decision. States started passing voter suppression laws left and right. Check out this New York Times article and a study by the American Political Science Association from 2013 titled “Jim Crow 2.0? Why States Consider and Adopt Restrictive Voter Access Policies“. It seems Justice Ginsberg was correct when she wrote, “Volumes of evidence supported Congress’ de­termination that the prospect of retrogression was real. Throwing out preclearance when it has worked and is continuing to work to stop discriminatory changes is like throwing away your umbrella in a rainstorm because you are not getting wet” (34). It seems to be raining and minority voters are left in the storm.

:a reviewing court should expect the record sup­ porting reauthorization to be less stark than the record originally made. Demand for a record of violations equiva­ lent to the one earlier made would expose Congress to a catch-22. If the statute was working, there would be less evidence of discrimination, so opponents might argue that Congress should not be allowed to renew the statute. In contrast, if the statute was not working, there would be plenty of evidence of discrimination, but scant reason to renew a failed regulatory regime” (11-12).

This move by the states can beef up the argument that even if things have improved with voting, politicians will always be able to change voting laws and the federal government must take extreme measures to protect the right to vote, one of the central arguments for the VRA’s extreme measures in the 1960s. When one election can put a party into power and allow them to change laws, even a small gap in protecting voters and stopping voter suppression is crucial.

Looking at the dissenting opinion, there is a heavy focus on Congress doing it’s job with the VRA and the Court entering into a sphere that it should not.

“First, continuance would facilitate completion of the impressive gains thus far made; and second, continuance would guard against back­ sliding. Those assessments were well within Congress’ province to make and should elicit this Court’s unstinting approbation” (1).

“Until today, in considering the constitutionality of the VRA, the Court has accorded Congress the full measure of respect its judgments in this domain should garner” (10).

“Congress may choose any means “appropriate” and “plainly adapted to” a legitimate constitutional end. As we shall see, it is implausible to suggest otherwise” (12)

The opinion also points out that the remedies left without Section 4 are insufficient.

“Voting suits are unusually onerous to prepare, some­ times requiring as many as 6,000 man-hours spent combing through registration records in preparation for trial. Litigation has been exceedingly slow, in part because of the ample opportunities for delay afforded voting officials and others involved in the proceed­ ings. Even when favorable decisions have finally been obtained, some of the States affected have merely switched to discriminatory devices not covered by the federal decrees or have enacted difficult new tests de­ signed to prolong the existing disparity between white and Negro registration. Alternatively, certain local of­ ficials have defied and evaded court orders or have simply closed their registration offices to freeze the voting rolls” (3).

“Jurisdictions covered by the preclearance requirement continued to submit, in large numbers, proposed changes to voting laws that the Attorney General declined to ap­prove, auguring that barriers to minority voting would quickly resurface were the preclearance remedy elimi­nated. City of Rome v. United States, 446 U. S. 156, 181 (1980)” (5).

These limited remedies are coupled with what Ginsberg calls “second-generation barriers” that preclearance helped stop.

“Second-generation barriers come in various forms. One of the blockages is racial gerrymandering, the redrawing of legislative districts in an “effort to segregate the races for purposes of voting.” Id., at 642. Another is adoption of a system of at-large voting in lieu of district-by-district voting in a city with a sizable black minority. By switch­ ing to at-large voting, the overall majority could control the election of each city council member, effectively elimi­ nating the potency of the minority’s votes ” (6).

The Dissenting opinion goes through great lengths to explain how Congress did a thorough renewal of the VRA in 2006 and even though the formula was not updated, Congress found it did not need to be (6-7, 15-22).

“Congress did not take this task lightly. Quite the oppo­ site. The 109th Congress that took responsibility for the renewal started early and conscientiously.”

“After considering the full legislative record, Congress made the following findings: The VRA has directly caused significant progress in eliminating first-generation barri­ ers to ballot access, leading to a marked increase in minor­ ity voter registration and turnout and the number of minority elected officials. 2006 Reauthorization §2(b)(1). But despite this progress, “second generation barriers constructed to prevent minority voters from fully partici­ pating in the electoral process” continued to exist, as well as racially polarized voting in the covered jurisdictions, which increased the political vulnerability of racial and language minorities in those jurisdictions. §§2(b)(2)–(3), 120 Stat. 577. Extensive “[e]vidence of continued discrim­ ination,” Congress concluded, “clearly show[ed] the con­ tinued need for Federal oversight” in covered jurisdictions. §§2(b)(4)–(5), id., at 577–578. The overall record demon­ strated to the federal lawmakers that, “without the con­ tinuation of the Voting Rights Act of 1965 protections, racial and language minority citizens will be deprived of the opportunity to exercise their right to vote, or will have their votes diluted, undermining the significant gains made by minorities in the last 40 years.” §2(b)(9), id., at 578.

Based on these findings, Congress reauthorized pre­ clearance for another 25 years, while also undertaking to reconsider the extension after 15 years to ensure that the provision was still necessary and effective” (8).

Ginsberg also argues that by removing Section 4, the Court removed the ability to use Section 5, leaving safeguards against voter suppression almost nonexistent.

“The Court stops any application of §5 by holding that §4(b)’s coverage formula is unconstitutional. It pins this result, in large measure, to “the fundamental principle of equal sovereignty'” (30).

The opinion ends eloquently explaining the Court’s misstep.

“But the Court disregards what Con­gress set about to do in enacting the VRA. That extraor­ dinary legislation scarcely stopped at the particular tests and devices that happened to exist in 1965. The grand aim of the Act is to secure to all in our polity equal citizen­ship stature, a voice in our democracy undiluted by race. As the record for the 2006 reauthorization makes abun­ dantly clear, second-generation barriers to minority voting rights have emerged in the covered jurisdictions as at­ tempted substitutes for the first-generation barriers that originally triggered preclearance in those jurisdictions” (35-36).

Again, I highly recommend you read the opinion yourself, both for background knowledge and for the ability to employ the rhetoric of the Dissenting opinion.

Best of luck with February’s topic!


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