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Enbar Toledano

excerpted from: Enbar Toledano, Section 5 of the Voting Rights Act and its Place in post-racial America, 61 Emory Law Journal 389-434 (2011-2012)(322 Footnotes)(Student Note)


Issacharoff suggests that a lack of modern examples of racial discrimination in the voting realm will undermine the constitutionality of section 5. A thorough examination of modern election law, however, casts doubt upon the belief that racial discrimination has been eradicated in the voting rights arena. Perhaps the problem is that today's discrimination would be unrecognizable to someone still on the lookout for Jim Crow laws. The metamorphosis of discrimination does not, however, signal its end. Simply put, minorities are no longer exclusively black, and discrimination is no longer exclusively Southern. This Part will examine the changing makeup of America's minorities since 1965, discuss the problems they face in today's society, and identify modern examples of racially discriminatory voting laws to demonstrate the continued need for section 5.

A. The Nonblack Minority

The country has undoubtedly seen considerable advances in black participation in the electoral process since 1965. This does not mean, however, that section 5 is irrelevant; a careful reading of the VRA plainly reveals that section 5 protects not only black southerners but also minorities generally. Congress's intention to bring other minority groups within the protection of section 5 seems logical in light of the growth of such groups and is evident from the 1975 amendments to the VRA, which added English-only ballots to the list of prohibited tests and devices if such ballots were administered in jurisdictions with over 5% language-minority populations. And while the nation may largely have been viewed as black and white in 1965, today's census paints a different picture. The table below illustrates the U.S. population as of 2010 broken down by race and, to some extent, ethnicity:


Of no small significance is the fact that the Hispanic/Latino population surpassed the black population in terms of national composition, at 16.3% and 12.6%, respectively. In contrast, the 1960 Census did not even provide a category for Hispanic/Latino self-identification. And while the black population has stayed fairly constant since 1960, at which point 10.5% of the population was black, the Asian population has jumped from 0.5% to 4.8%--rendering it the fastest-growing race group between 2000 and 2010. The U.S. Census Bureau noted upon publication of the 2000 Census data that [t]he federal government considers race and Hispanic origin to be two separate and distinct concepts. Accordingly, the 2000 Census was amended to include a separate opportunity for citizens to self-identify as Spanish, Hispanic, or Latino. If the 16.3% of citizens who identified themselves as Hispanic or Latino in 2010 were subtracted from the white population, then only 56.1% of the United States population would have been white as of 2010, as compared to 88.6% in 1960.

B. The New Dilemma

In a decade when the country was essentially black and white (at 10.5% and 88.6% of the population, respectively), section 5 was conceived as a means of forcing the Fifteenth Amendment's suffrage guarantee upon the Jim Crow South. In contrast, as illustrated in the section above, the country's ethnic makeup today is comprised of more groups, with more members in each group, shrinking the white population to only 56.1% and unseating black Americans from the dominant minority position. Like their predecessors, today's minorities face a number of structural, political, and economic obstacles that inhibit the exercise of their electoral rights. Accordingly, the improved registration and participation rates among black voters attributable to the VRA are yesterday's successes. Modern outlets of discrimination may bear little resemblance to those of the 1960s on the surface, but they further the same hegemonic ends and equally warrant redress.

The inherent difficulties in arriving late to the scene, so to speak, place Hispanic/Latino and Asian groups at a distinct disadvantage politically: these groups are underrepresented both as voters and as elected officials. In the 2008 presidential election, the U.S. Census Bureau reported significantly lower Asian and Hispanic voter-registration rates as compared to non-Hispanic white and black registration rates. Likewise, only 60.5% of naturalized citizens were registered to vote, while 71.8% of native-born Americans were registered. As of 2004, [b]lacks, Latinos, and Asian Americans ma[de] up over a quarter of the national population, but . . . less than 5% of the nation's elected officials.

The record before Congress during section 5's 2006 reauthorization period also provided evidence of high levels of resistance from jurisdictions with growing minority populations. For example, the white mayor and board of aldermen in a Mississippi jurisdiction cancelled a 2001 election to prevent the growing minority population from unseating them. Similarly, a Louisiana jurisdiction proposed a redistricting plan following the 2000 Census that wholly eliminated a majority-black district to encourage proportional representation of whites. And in response to an increasingly politically active and cohesive Latino community, a 2003 Texas redistricting plan removed Latino voters from a congressional district to decrease their electoral opportunities. The reauthorization record also contained evidence of discrimination against language minorities entitled to non-English election materials: NAACP attorney Kristen Clarke noted that, of the 101 counties investigated, eighty percent were unable to produce voter registration forms, official ballots, provisional ballots, and their written voting instructions in a manner compliant with the language minority provisions of the Voting Rights Act.

Exacerbating the structural inequalities facing nonblack minorities are the country's reactions to recent political and economic hardship. The years since the terrorist attacks of September 11, 2001, have been characterized not only by a growing solidarity among native-born Americans but also by a growing resentment and wariness of minority and immigrant populations. As an illustration of this nativist backlash, the FBI noted a sharp increase in hate crimes motivated by ethnicity and national origin in 2001--the rate of such crimes having doubled in just one year since 2000. In the same year, anti-Islamic incidents rose from the second least reported to the second highest reported. And while Muslims are the most visible targets of the post-9/11 era, that period has also engendered antipathy to immigrants and minorities more generally. To be clear, the backlash described here is not solely--or even primarily--violent or overtly xenophobic; instead, it involves native-born Americans drawing what some consider to be a proverbial line in the sand. As an example, in 2006, for the first time in the country's history, the Senate voted to establish English as the official national language of the United States.

The country's reaction to 9/11 may seem isolated, but when placed in historical context, a distinct pattern emerges. As more foreigners, different culturally and physically, moved to the United States, Americans feared that the immigrants invaded their territory, threatened their jobs, and changed their values. Out of context, this passage could easily describe the last ten years when, in fact, it refers to early-twentieth-century America and its fearful reaction to a surge in immigration. The resulting political climate led to anti-immigrant legislation like the Chinese Exclusion Act and the 1918 Alien Control Act, meant to stem the flow of undesirable immigration and to increase governmental scrutiny of immigrants already in the country. Later in the century, Japanese internment and establishment of the House Un-American Activities Committee sprang from the attack on Pearl Harbor and the Second Red Scare, respectively. These examples are, perhaps, unrelated to voting rights, but as professor Kevin Johnson noted, they demonstrate how the hostility toward foreigners outside the nation influences hate for the foreigner inside our borders.

Despite the strong connection between these periods of intolerance and mass immigration or acts of war, political turmoil is not the sole trigger of intolerance. The socioeconomic model of ethnic-competition theory suggests that ethnic groups are constantly in competition with one another for power, social control, territory, economic and social incentives, or social identity. Viewed through an ethnic-competition lens, American minorities and naturalized citizens have not only the lingering effects of 9/11 to contend with but also the economic recession. Ethnic-competition theory would suggest that, as the country's resources become more limited, economic motives for anti-immigrant sentiments become stronger. After years of alarming unemployment rates, it is not uncommon to hear concerns that immigrants are edging Americans out of jobs. With government budgets tightened, people become more focused on the perceived strain illegal immigrants place on public benefits. This environment not only tolerates but in fact nurtures racially discriminatory and anti-immigrant legislation.

C. Modern Disfranchisement in Arizona

In 2004, Arizona enacted Proposition 200, a state law that required first-time voters to provide proof of citizenship upon registration and all in-person voters to provide identification at the polls. Acceptable proof of citizenship included an Arizona driver's license number, a copy of a birth certificate or U.S. passport, and original naturalization documents or the number from a certificate of naturalization. Arizona, subject to section 5, obtained preclearance with regard to Proposition 200 from the Attorney General in 2005.

In 2006, Native Americans and community organizations joined various Arizona residents in Gonzalez v. Arizona, challenging Proposition 200. The following year, the U.S. Court of Appeals for the Ninth Circuit addressed the plaintiffs' challenges to Proposition 200, the most important of which were as follows: (1) the identification requirement constituted a poll tax in violation of the Twenty-Fourth Amendment, (2) the proposition imposed a severe burden on the fundamental right to vote, (3) the proposition imposed a disproportionate burden on naturalized citizens, and (4) the proposition's proof-of-citizenship requirement was inconsistent with the NVRA. The Ninth Circuit found in the defendants' favor on each issue. Because it is most intimately tied to analysis under the VRA, the plaintiffs' third claim warrants closer examination.

The plaintiffs' third claim, that Proposition 200 imposed a disproportionate burden on naturalized citizens, struck closest to the heart of section 5. Unfortunately, this issue was not resolved in Gonzalez I. The court declined to comment directly on this challenge because no naturalized citizens had submitted affidavits in support of the proposition. In a subsequent appeal, Gonzalez II, the issue was rendered moot by the court invalidating Proposition 200's proof-of-citizenship requirement as inconsistent with the NVRA. With the Ninth Circuit recently granting a rehearing en banc, the issue is not quite settled.

Without findings regarding the burden on naturalized citizens, Gonzalez II rested on a state's interest in protecting the integrity of the electoral process prevailing over a statute's potentially discriminatory effects. As this case stands, one would be hard-pressed to argue against an American citizen's right to an undiluted vote. After all, for nearly fifty years, American schoolchildren have memorized the now-famous principle derived from Baker v. Carr, one person, one vote. However, the VRA's language and Issacharoff's claim that we lack modern examples of racially discriminatory voting laws require an inquiry into more than Proposition 200's effects; they also demand an inquiry into its purpose.

In a case involving election law, injunctive relief may be granted with the court's consideration of any one of the following factors: the plaintiff's likelihood of success on the merits, the plaintiff's likelihood to be irreparably harmed by a denial of the injunction, the parties' respective hardships, or the injunction's ability to serve the public interest. In Gonzalez I, the Ninth Circuit found the balance of hardships tipped sharply in favor of [the state] due in large part to Arizona's having invested enormous resources in preparing to apply Proposition 200. Such an expenditure of resources might suggest that Proposition 200 was enacted to address a serious threat to Arizona's voters when, in fact, the state presented evidence that, in ten years, it had identified only 232 noncitizens attempting to register to vote. In 2000, Arizona's population was estimated to be 5,130,632. Of course, the 232 citizens whose votes were effectively cancelled out deserve redress, but they constituted only 0.0045% of Arizona's population. Could there be another purpose behind invest [ing] enormous resources in Proposition 200?

Perhaps the answer lies in an examination of the law in context. Proposition 200, named the Arizona Taxpayer and Citizen Protection Act, was cast by some as a reclamation of Arizona by its citizens. The requirement for voters' proof of citizenship was only one piece of the legislation; additional provisions conditioned access to public benefits on documentary proof of citizenship and criminalized state employees' failures to report immigration violations to federal authorities. Section 2 of the Act stated, [I]llegal immigration is causing economic hardship to this state. It further read, [I]llegal immigrants have been given a safe haven in this state with the aid of identification cards that are issued without verifying immigration status, and that . . . conduct . . . demeans the value of citizenship.

Despite this language, it is possible to infer that Proposition 200 was not only aimed at illegal immigrants but also laced with anti-immigration sentiments more generally. Proposition 200 was advanced primarily by two groups: Protect Arizona Now (PAN) and the Federation for American Immigration Reform (FAIR). PAN's national advisor, Virginia Abernethy, considers herself a white separatist and advocates a catch-our-breath moratorium on legal immigration. FAIR similarly describes itself as an organization dedicated to promot[ing] immigration levels consistent with the national interest--more traditional rates of about 300,000 a year.

The justification for Proposition 200 as a voter-fraud-prevention measure is unconvincing. With virtually no evidence of such fraud in Arizona's history--or, for that matter, in the country's history --the law appears to be a means of erecting barriers between the state's native and immigrant populations. In this context, section 5 remains a necessary safeguard to ensure that legitimate efforts to enforce immigration policy are not carried out at the expense of a state's minority residents and naturalized citizens.

D. Modern Disfranchisement in Georgia

Arizona's Proposition 200 is not an isolated illustration of modern racial discrimination in voting laws. In 2008, Georgia's Office of the Secretary of State developed a citizenship-verification program that cross-referenced Department of Driver Services databases against voter-registration data. The aim of this program was to identify and flag registered voters whose citizenship had not been verified between the two systems. Any such voters would be notified accordingly and required to take additional steps to verify their registration before being permitted to vote.

A Georgia resident and various minority organizations sued the state for administering this program prior to obtaining section 5 preclearance. A district court issued a preliminary injunction in late October 2008, just in time to suspend the program's effects for the 2008 elections. The court extended the injunction in 2010 but denied both parties' motions for summary judgment, in anticipation of the Justice Department's preclearance determination.

In fact, the Justice Department had already issued a conclusion regarding Georgia's citizenship-verification program. In May 2009, the Department addressed a letter to Georgia's attorney general objecting to preclearance for the program. Georgia, the letter stated, had failed to sustain its burden of showing that the proposed change neither has the purpose nor will have the effect of denying or abridging the right to vote on account of race, color or membership in a language minority group. The Department found not only that the additional requirements would pose considerable obstacles to flagged individuals but also that the system was inaccurate and overinclusive, having wrongly flagged thousands of Georgia citizens who were, in fact, eligible to vote. More significantly, of those wrongly flagged, 45.7% were naturalized citizens. The Department further determined that Hispanic and Asian voters were more than twice as likely to appear on the list than white voters and that 60% more black voters were flagged than white voters, despite comparable registration numbers.

After reconsideration and a second denial by the Justice Department in February 2010, Georgia filed suit in the U.S. District Court for the District of Columbia to challenge the decision. The case was settled abruptly in August 2010 when the Justice Department precleared the citizenship-verification program and requested that the district court dismiss the case. Many speculated that the Department folded to avoid Georgia challenging not only the preclearance denial but also the constitutionality of section 5 itself.

In the meantime, Georgia introduced Senate Bill 86 (SB 86) in 2009, a bill cut from the same cloth as Arizona's Proposition 200, requiring residents to provide proof of citizenship upon registering to vote. Like the citizenship-verification program discussed above, SB 86 was also implemented without having been submitted for preclearance. In the wake of two administrative preclearance denials by the Justice Department over the citizenship-verification program, Georgia proceeded directly to an action for judicial preclearance of SB 86 in the U.S. District Court for the District of Columbia. That case was dismissed in 2011 when the Justice Department granted Georgia preclearance for SB 86.

Undoubtedly, Georgia will face further litigation over SB 86. Like Proposition 200, SB 86 has the potential to disproportionately burden minorities and the elderly. Furthermore, the lengthy preclearance process over Georgia's citizenship-verification program has brought the state's voting measures under intense scrutiny by minority organizations. Already, this issue has attracted the attention of high-profile groups, like the NAACP and the ACLU, in addition to local organizations, like the Georgia Association of Latino Elected Officials.

Despite the situation's similarities to the Gonzalez litigation, however, it carries the potential for a notably different outcome. At the Ninth Circuit in Gonzalez I, the court neglected to rule on a vital challenge to Proposition 200--whether the measure disproportionately burdened naturalized citizens--because no affidavits had been filed by naturalized citizens. Plaintiffs in this case are unlikely to make the same mistake. For one, Georgia's premature implementation of the contested voting procedures has allowed ample time for opponents to collect data regarding SB 86's effects on minorities. Also, legislation such as Arizona's more recent immigration bill has likely cultivated heightened sensitivity to such issues since Gonzalez II. Without a firm precedent weighing in favor of such procedures against the burden they present for naturalized citizens, Georgia may find it difficult to overcome a comparable challenge to SB 86. And in the course of such a challenge, Georgia would also have to defeat the Justice Department's findings that its data-comparison system disproportionately burdens minorities and naturalized citizens at statistically significant rates.

The resolution of the Georgia cases will be important on a number of levels. As section 5 case law stands, laws like Arizona's and Georgia's that target immigrant and minority populations are almost sure to fail the retrogression test. By injecting additional administrative steps in the way of minority and immigrant voters, these laws and others like them are in direct conflict with section 5's effect prong. Certainly, the Justice Department's statistical findings and continued opposition to the citizenship-verification program suggest the program's discriminatory effects. Furthermore, Proposition 200's context and sponsorship could support a finding not only of discriminatory effects but also of discriminatory purpose.

The Georgia and Arizona examples are not meant as exercises in whistle-blowing, however. Both states had legitimate motives for their laws; certainly, the states should be able to ensure that registered voters are citizens. Yet, presented with such abundant evidence that the chosen measures present unequal obstacles to minorities and naturalized citizens, it seems obvious that the interests of those populations are not currently a legislative priority. It is in this capacity that section 5 has functioned and continues to function in its intended role.

 * * *

Section 5 was originally embraced because of the crisis it was intended to resolve. The widespread disfranchisement of black southerners was a concrete issue the country could readily tackle. Today's problems are more abstract: America's minorities are no longer exclusively black, and discrimination against them is not exclusively Southern. As this Comment has demonstrated, however, the metamorphosis of discrimination does not signal its end. In addition to the structural inequalities minorities have always faced, they are increasingly the casualties of a tense political and economic environment, and of a raging partisan power struggle. America's minority population is growing, and with its growth rises the percentage of the population whose access to meaningful participation in the electoral process would be threatened by the abolition of section 5--the VRA's most important, and most endangered, provision.

Scholarly and judicial skepticism of the continued need for section 5 are based largely on an understanding of the provision as a product and solution confined to the Jim Crow South. This interpretation is not only oblivious to the modern sources and victims of disfranchisement but also directly in conflict with Congress's continued commitment to section 5. Congress has demonstrated its intentions with respect to section 5 by renewing and expanding the provision at each term, extending protection to language minorit[ies] and ensuring that access to a vote encompasses access to a meaningful vote. In these respects, section 5's work is not done.

To some degree, section 5's critics are correct; despite congressional attempts to update the statute in light of demographic and political changes, the statute still does not adequately reflect the problems it was intended to resolve. Rather than abolish section 5, however, this Comment advocates reorienting the VRA's provisions to render section 5 more receptive to the needs of minorities and more resistant to partisan influence. As signaled by NAMUDNO and Perry, the resolution of this issue is imminent. The approach suggested by this Comment would resolve both the practical and constitutional concerns surrounding section 5 and reinvigorate the country's dedication to achieving equality in voting.