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Katz and Voting Rights Act

Katz Brief in Supreme Court Case Supports Upholding Voting Rights Act

By John Masson
Feb. 21, 2013

As oral argument approaches in a Supreme Court case challenging a key provision of the Voting Rights Act, Michigan Law Prof. Ellen Katz and the school's Voting Rights Initiative argue that the VRA's regional provisions continue to provide vital protection to minority voters in the places where they apply.

Petitioners in Shelby County, Alabama v. Holder challenge Section 5 of the Act, which requires jurisdictions with a history of discrimination in voting to obtain federal approval before making changes to their electoral laws. Shelby Count argues that Section 5 is no longer needed. But a study authored by Prof. Katz and Michigan Law's Voting Rights Initiative indicates that minority voters continue to face distinct obstacles to political participation in places subject to Section 5.

The VRI Study examined litigation brought under Section 2 of the VRA, which, unlike Section 5, applies nationwide and accordingly provides a lens through which to make regional comparisons. Prof. Katz and her students found that Section 2 plaintiffs have been more likely to succeed, and succeeded more often, in covered jurisdictions than in non-covered ones. They also found that courts hearing Section 2 claims in covered jurisdictions were more likely to find certain conditions linked to voting discrimination, including things like intentional discrimination, extreme racial polarization in voting, and a lack of success by minority candidates.

The study may well inform the deliberations of the justices in the coming months. The lower courts in Shelby County repeatedly cited the Katz study as providing concrete evidence supporting Congress's 2006 decision to reauthorize Section 5. The study, moreover, addresses the critical question posed by Justice Kennedy when the Court last examined the VRA four years ago, namely, why places subject to Section 5 should still be singled out for distinct treatment.

Prof. Katz explained why in "Shelby County v. Holder: Why Section 2 Matters," an essay she published recently on SCOTUSblog's online Shelby County symposium—along with the brief she and the VRI filed as amicus curiare in the case.

"A meaningful comparison of covered and non-covered jurisdictions must account for the fact that Section 5 shapes governance decisions in significant ways in places like Alabama, Texas, and South Carolina," Prof. Katz said. She notes that hundreds of proposed changes to election laws have been blocked by the Department of Justice; hundreds more have been withdrawn or altered in the course of Section 5 review; and many more changes were never proposed because local officials knew they would not past muster under Section 5.

The result, said Prof. Katz, is that fewer instances of discriminatory practices should be found in places subject to Section 5 if, as critics of the VRA contend, places like Alabama are truly no different from places like Ohio. However, she said, "our Section 2 study is one piece of evidence that suggests this is not the case."

Prof. Katz pressed the point with an analogy. "A patient being successfully treated on dialysis might appear quite similar to a person with normal kidney function," she noted. "But no one would suggest that treatment could be terminated without consequence. And yet, that's essentially the argument critics of the VRA posit when they compare places like Alabama to places like Ohio." Prof. Katz, in turn, said, "Section 5 is an operational statute, and that fact should not be ignored when places subject to it are compared to places that are not."

Arguments are scheduled for Feb. 27. More information is available on the American Bar Association website and on the SCOTUSblog's Shelby County page.

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