The Supreme Court Decision on Shelby v Holder May Affect Florida Voting Laws

The last blog post of 2013 deals with what might have been the most important story of the year when a Supreme Court decision triggered what could have major implications affecting many jurisdictions throughout the Country, including Florida.

On June 25, 2013 the Supreme Court’s assessment of the case of Shelby County v. Holder was decided.

In a 5-4 decision, the high Court found Section 4 of the 1965 Voting Rights Act (VRA) to be unconstitutional. Section 4 was the formula that essentially decided which States would be “covered” under Section 5 of the VRA. Simply put, Section 5 stated that if any jurisdiction wanted to make changes to laws relevant to voting, it first must have that aspiration upheld by the authority of the Attorney General of the United States or a three judge panel of the U.S. District Court for the District of Columbia. This act is known as preclearance and was the basis for the law suit. Without the Section 4 formula in place, Section 5 becomes ineffective. In principle, the Court did not strip Section 5, but kicked back the capacity to rewrite a new up-to-date Section 4 formula to Congress.

Before the Court’s decision was declared, it was acknowledged that the outcome of this case would decide if any changes to the 1965 Voting Rights Act could be implemented without the preclearance clause in place. The suit by Shelby County, Alabama called for Section 5 of the Voting Rights Act to be judged unconstitutional after Congress extended the endorsement of Section 5 for a supplementary twenty-five year period during its 2006 session. Shelby maintained that by doing so Congress surpassed its constitutional authority.

The entire saga of this case from start to finish can be read by clicking here, in a fourteen page article displayed on this Website.

Before the recent ruling, many States and jurisdictions, mostly in the South were “covered” by Section 5. At the time of the implementation of the VRA these geographic locations were considered by the government to have shown the most flagrant racial discrimination relating to voter registration as well as the overall ability for minorities to vote. In Florida, jurisdictions covered were Hendry, Monroe, Hillsborough, Collier and Hardee Counties. These previously covered jurisdictions will now have the ability to propose changes to existing voting laws, redistricting that could affect voting results, and attempts to make other changes that were previously protected under Section 5.

During oral arguments, what many considered controversial remarks made by Justice Antonin Scalia instigated a debate that became volatile in the press and political Sunday shows and comic late night TV shows.

His phrase “perpetuation of racial entitlement” started a firestorm within the mainstream media and gave fodder for the debate. In a press release, The NAACP stated that “Voting isn’t an entitlement but a right… one we fought to get and one we’ve fought to keep” An online petition was posted on their Website in support of the Voting Rights Act and their president and CEO Benjamin Jealous released a statement saying; “Justice Scalia should refrain from speculating on the thoughts and motivations of the Congress and defer to the judgment of the overwhelming bipartisan majority that voted for reauthorization in 2006,”
Jealous continued in the press release. “Democracy is an American entitlement. Voting rights protection is an American entitlement. Guaranteed access to the ballot box is not the right of one race, one age group, or one economic class. Assaulting the Voting Rights Act, on the other hand, is an assault on America’s ability to be America for all Americans.” He further said “While much has changed since 1965, the record is clear that discriminatory election practices still exist in counties like Shelby County and states like Alabama.”

Other Civil rights groups and progressives were quick to damn the comment. Filmmaker, Michael Moore made a KKK reference in a “tweet” (online textual comment) via the social media service Twitter, and MSNBC’s Al Sharpton found Scalia’s comments “shocking”. He stated on his daily talk show, Politics Nation: “How is that an entitlement… I thought African-Americans were citizens! For us to have the right to vote protected is some kind of entitlement program?” Also on Sharpton’s show, Representative John Lewis (D, Ga), who participated in civil rights protests with Martin Luther King, told the MSNBC host in an interview: “It was unreal, unbelievable, almost shocking, for a member of the Court to use certain language. I can see politicians and even members of Congress… but it is just appalling to me.” He continued by saying “It is an affront to all of what the civil rights movement stood for, what people died for, what people bled for, and those of us who marched across that bridge 48 years ago, we didn’t march for some racial entitlement. We wanted to open up the political process, and let all of the people come in, and it didn’t matter whether they were black or white, Latino, Asian-American or Native American.”

Lewis is known for his 1964 “Mississippi Freedom Summer,” which was a movement to educate and register black voters throughout the South. On March 7, 1965 in Selma, Alabama, Lewis and fellow activists, along with over 600 marchers crossed the Edmund Pettus Bridge. Once over the bridge they were met by Alabama State Troopers who ordered them to break up their march. As an alternative, remaining together, the protesters started to pray. In response, police set off tear gas canisters and troopers clashed with the protesters, using night sticks to beat them. During the melee, Lewis suffered a skull fracture, but ultimately fled to a church in Selma on that side of the bridge. He appeared in front of TV cameras before being taken to the hospital and called for President Lyndon Johnson to intervene on their effort. To this day, Rep. Lewis bears scars on his head from the altercation that has been known as “Bloody Sunday”.

Later in the proceedings, after Justice Scalia’s remarks, at the onset of the Rebuttal Argument of Bert W. Rein, the attorney representing Shelby County, Justice Sotomayor’s first question to him was “Do you think that the right to vote is a racial entitlement in Section 5?” Mr. Rein’s immediate answer was “No, Section… the Fifteenth Amendment protects the right of all to vote”… But even with the Petitioner’s admission of that fact, he maintained that Congress’s 25-year reenactment of an “antiquated coverage formula” needed to be addressed. And the Supreme Court that formerly cited that it “raised a serious constitutional question,” knocked down Section 4 in a somewhat predictable vote.

In conclusion, whether Congress takes action to reinstate Section 4 with a new formula during its current session remains to be seen. But at least for now, States can move to change existing laws through their legislatures without being concerned about the preclearance mandate.

And it didn’t take long after the ruling was publicized for many States to begin doing just that.

A hate crime is described as a crime where victims are intentionally selected, in whole or in part, because of their race, color, ancestry, gender, national origin, religious practice, religion, age, sexual orientation or disability, and will be considered a violent felony. Since the implementation of the VRA the events that led up to Representative Lewis’s altercation could easily fall under that category.

Mr. Cohen is a board certified criminal trial lawyer who has tried a multitude of cases throughout his 35 year career. He has offices in New York City as well as Fort Lauderdale and West Palm Beach, Florida and is a member in good standing of both the New York and Florida Bars. He is also admitted to practice law in the U. S. Court of Appeals for the Second Circuit in New York and the Eleventh Circuit which includes the State of Florida.

He is rated AV by Martindale Hubbel (pre-eminent) and a “Super Lawyer” recognized as being in the top 5% of criminal trial law among lawyers. The Florida Bar considers him a specialist in his field
Mr. Cohen is also a partner in the esteemed law firm of McLaughlin & Stern, LLP. Through this partnership, Mr. Cohen has the support and resources of a large law firm while being able to give his clients the personal attention each of their cases require in his New York Office in the heart of midtown Manhattan as well as at two South Florida locations. To visit Mr. Cohen’s New York City Website, please click here.

Mr. Cohen is also listed in the 2013 & 2014 edition of “Best Lawyers in America

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