Thursday, February 28, 2013

The Professor and the Supreme Court

Posted By on Thu, Feb 28, 2013 at 5:12 PM

Yesterday, the Supreme Court tackled a prickly issue: Is Section 5 of the Voting Rights Act unconstitutional because it makes some states (and some counties and townships), but not others, report to the feds before they can make any changes in their voting procedures?


That's what Shelby, Ala. (which sued the federal government) and other critics claim. The Justice Department doesn't agree -- and it's quite possible that one of the arguments that Solicitor General Donald Verrilli, Jr., made yesterday for keeping Section 5 intact was informed in part by a paper written by Ryan Emenaker, a political science professor at College of the Redwoods.

Emenaker, reached by phone today, said he was researching the Voting Rights Act last summer out of general interest and to prepare to teach it in class. A couple of months ago, when he learned that the Supreme Court was going to be taking on Shelby County v. Holder, he wrote a paper presenting an argument for keeping Section 5 that, he said, he hadn't seen anyone else make yet. And he sent it to SCOTUSblog -- the premerie news and research site on the Supreme Court that all the law clerks scour for smart nuggets.

"I didn't hear from them for a while, and I figured they were just blowing me off," Emenaker said. "Then they wrote back. They said my paper was the impetus for a new symposium."

More scholars were asked to write essays, which were published on the blog in a special series. Emenaker is the first community college professor to ever write for the SCOTUSblog; his colleagues in the symposium hailed mostly from law schools at places like Yale, Columbia, George Washington and Stanford.

You can read Emenaker's paper here. The gist of the issue, and of his argument, follows.

The Voting Rights Act of 1965 banned discriminatory measures aimed at thwarting minorities from voting. Section 5 -- the part in question -- named the jurisdictions with a history of such practices, put them on a list, and appointed a federal watchdog to their voting-related proceedings.

As part of being on this list, these "covered" jurisdictions have to get permission from the feds any time they want to make changes to their voting procedures. Want to start making voters show their ID first, for instance? If you're on the list, you've gotta ask Washington first. And so on. It's called getting "pre-clearance."

In 2006, Congress reauthorized Section 5. Shelby County, Ala., sued, arguing that times have changed and the formula for being listed for pre-clearance -- set by another section of the law -- is outdated. As well, they said, some of the places on the list no longer had the "pervasive evil" that put them on there in the first place, said Emenaker. Most of all, Shelby and co-critics argued, Section 5 is an infringement on states rights and allows unequal treatment of states -- making it unconstitutional.

Proponents of Section 5 say it's working, that it's an effective deterrent against descrimination -- and that there's a way off that list. Emenaker's argument centers on that last point: "bailout," the ability, encoded in Section 5, to get off the list.

Many states and local jurisdictions have. Even so, nine states and dozens of counties and townships remain listed, including four counties in California (Kings, Merced, Monterey and Yuba).

Critics complain the bailout process is onerous. Emenaker disagrees, and in fact says it is bailout that makes Section 5 constitutional (that also was part of the argument made by Verrilli yesterday; Emenaker hopes his paper gets cited in the Supreme Court's decision, when it comes later this year).

"They can avoid pre-clearance if they can show they haven't had violations of minority voting rights for the past 10 years," he said.

But in fact, he said, many jurisdiction eligible for bailout don't bother to do it. They might, Emenaker writes in his paper, "be choosing to stay on because being on the list provides a measure of protection against lawsuits."

"Remember," he writes, "federal oversight of elections continues without pre-clearance. Compared to the expense of defending against voter discrimination lawsuits, remaining 'covered' can be a desirable choice."

Jurisdictions on the covered list, he added, likely develop better election laws with the federal government helping them than if they were to craft them on their own. And if someone sues, they can just say, "Look, the federal government approved this."

Emenaker said New York, California and Mississippi even wrote friends-of-the-court briefs in favor of keeping Section 5, saying they didn't mind their jurisdictions being covered and they "don't feel infringed upon."

The court's decision is expected to be close -- 5-4, Emenaker's predicting.

If you want to hear Emenaker talk about the issue, he'll be on KHSU's Thursday Night Talk tonight.

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Heidi Walters

Heidi Walters worked as a staff writer at the North Coast Journal from 2005 to 2015.

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