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Supreme Court Strikes Down Key Part of Voting Rights Act

WASHINGTON — The Supreme Court on Tuesday effectively struck down the heart of the Voting Rights Act of 1965 by a 5-to-4 vote, ruling that Congress had not provided adequate justification for subjecting nine states, mostly in the South, to federal oversight.

“In 1965, the states could be divided into two groups: those with a recent history of voting tests and low voter registration and turnout, and those without those characteristics,” Chief Justice John G. Roberts Jr. wrote for the majority. “Congress based its coverage formula on that distinction. Today the nation is no longer divided along those lines, yet the Voting Rights Act continues to treat it as if it were.”

The court divided along ideological lines, and the two sides drew sharply different lessons from the history of the civil rights movement and gave very different accounts of whether racial minorities continue to face discrimination in voting.

President Obama, whose election as the nation’s first black president was cited by critics of the law as evidence that it was no longer needed, said he was “deeply disappointed” by the ruling. “Today’s decision invalidating one of its core provisions upsets decades of well-established practices that help make sure voting is fair, especially in places where voting discrimination has been historically prevalent,” he said.

The decision will have immediate practical consequences. Changes in voting procedures that had required advance federal approval, including voter identification laws and restrictions on early voting, will now be subject only to after-the-fact litigation.

“With today’s decision,” said Greg Abbott, Texas’ attorney general, “the state’s voter ID law will take effect immediately. Redistricting maps passed by the Legislature may also take effect without approval from the federal government.”

Chief Justice Roberts said that Congress remained free to try to impose federal oversight on states where voting rights were at risk, but must do so based on contemporary data. When the law was last renewed, in 2006, Congress relied on data from decades before to decide which states and localities were covered. The chances that the current Congress could reach agreement on where federal oversight is required are small, most analysts say.

Justices Antonin Scalia, Anthony M. Kennedy, Clarence Thomas and Samuel A. Alito Jr. joined the majority opinion. Justice Ruth Bader Ginsburg dissented, joined by Justices Stephen G. Breyer, Sonia Sotomayor and Elena Kagan.

The majority held that the coverage formula in Section 4 of the Voting Rights Act, originally passed in 1965 and most recently updated by Congress in 1975, was unconstitutional. The section determines which states must receive preclearance from the Justice Department or a federal court in Washington before they make minor changes to voting procedures, like relocating a polling place, or major ones, like redrawing electoral districts.

The current coverage scheme, Chief Justice Roberts wrote, is “based on 40-year-old facts having no relationship to the present day.”

“Congress — if it is to divide the states — must identify those jurisdictions to be singled out on a basis that makes sense in light of current conditions,” he wrote. “It cannot simply rely on the past.”

The decision did not strike down Section 5, which sets out the preclearance requirement. But without Section 4, which determines which states are covered, Section 5 is without significance — unless Congress chooses to pass a new bill for determining which states would be covered.

It was hardly clear, in any event, that the court’s conservative majority would uphold Section 5 if the question returned to the court in the unlikely event that Congress enacted a new coverage formula. In a concurrence, Justice Thomas called for striking down Section 5 immediately, saying the majority opinion had provided the reasons and merely left “the inevitable conclusion unstated.”

The Supreme Court had repeatedly upheld the law in earlier decisions, saying that the preclearance requirement was an effective tool to combat the legacy of lawless conduct by Southern officials bent on denying voting rights to blacks.

Critics of Section 5 say it is a unique federal intrusion on state sovereignty and a badge of shame for the affected jurisdictions that is no longer justified.

The Voting Rights Act of 1965 was one of the towering legislative achievements of the civil rights movement, and Chief Justice Roberts said its "strong medicine" was the right response to "entrenched racial discrimination." At the time it was first enacted, he said, black voter turnout in the South stood at 6.4 percent in Mississippi.

In the most recent election, by contrast, “African-American voter turnout has come to exceed white voter turnout in five of the six states originally covered by Section 5.”

The chief justice recalled the Freedom Summer of 1964, when the civil rights workers James Chaney, Andrew Goodman and Michael Schwerner were murdered near Philadelphia, Miss., while working to register black voters. He mentioned Bloody Sunday in 1965, when police officers beat marchers seeking the right to vote in Selma, Ala.

“Today,” Chief Justice Roberts wrote, “both of those towns are governed by African-American mayors. Problems remain in these states and others, but there is no denying that, due to the Voting Rights Act, our nation has made great strides.”

In summarizing her dissent from the bench, an unusual move and a sign of deep disagreement, Justice Ginsburg called on the words of the Rev. Dr. Martin Luther King Jr. to make a different point.

“The great man who led the march from Selma to Montgomery and there called for the passage of the Voting Rights Act foresaw progress, even in Alabama,” she said. “'The arc of the moral universe is long,’ he said, but ‘it bends toward justice,’ if there is a steadfast commitment to see the task through to completion.”

“That commitment,” she said, “has been disserved by today’s decision.”

She said the focus of the Voting Rights Act had properly changed from “first-generation barriers to ballot access” to “second-generation barriers” like racial gerrymandering and laws requiring at-large voting in places with a sizable black minority. She said Section 5 had been effective in thwarting such efforts.

In any event, she said, Congress, which reauthorized the law by a large majority in the House and unanimously in the Senate, was the right body to decide whether the law was needed and where.

The Supreme Court had once before considered the constitutionality of the 2006 extension of the law in a 2009 decision, Northwest Austin Municipal Utility District Number One v. Holder. But it avoided answering the central question, and it seemed to give Congress an opportunity to make adjustments. Congress, Chief Justice Roberts noted on Tuesday, did not respond.

Justice Ginsburg suggested in her dissent that an era had drawn to a close with the court’s decision on the Voting Rights Act, or V.R.A., in Shelby County v. Holder, No. 12-96.

“Beyond question, the V.R.A. is no ordinary legislation,” she wrote. “It is extraordinary because Congress embarked on a mission long delayed and of extraordinary importance: to realize the purpose and promise of the Fifteenth Amendment,” the Reconstruction Era amendment that barred racial discrimination in voting and authorized Congress to enforce it.

“The court errs egregiously,” she concluded, “by overriding Congress’s decision.”

This article has been revised to reflect the following correction:

Correction: June 25, 2013

An earlier version of this article misstated the name of a civil rights worker murdered in 1964. He was Michael Schwerner, not Schwermer.

Via NY Times

http://www.nytimes.com/2013/06/26/us/supreme-court-ruling.html?pagewanted=1&_r=0

Background Check Bill May Affect Exchange Deadline

by: Angela Hart
Covered California board members say the timely rollout of the health insurance exchange relies heavily on two bills in the state Legislature spelling out the details of hiring 20,000 health reform workers. The board expressed concern about controversy surrounding one of the bills that excludes felons.

The bills — SB 509 and AB 1428 — would require new employees to undergo background checks and fingerprinting and disqualify any applicant with a felony conviction.
Though both are expected to pass this summer, AB 1428, authored by Assembly member Connie Conway (D-Tulare), is being met with resistance. Health policy experts and civil rights groups are taking issue with the provision in the bill prohibiting the state from hiring new employees with a felony conviction, arguing that it violates potential employees’ equal opportunity employment rights.

“The reason we got involved in the background check issue in the first place is because there are great job opportunities under the new health exchange,” said Carla Saporta, health policy director at the Greenlining Institute, a racial justice and advocacy organization based in Berkeley. “We work with many people who may have committed a crime in their past, but since have become a valuable member of their community, have contributed to society and have been rehabilitated. We believe these people should have access to these employment opportunities.”

Saporta said her organization is actively speaking out against Conway’s legislation, arguing that it violates the U.S. Equal Opportunity Employment Commission and specifically, the Civil Rights Act of 1964, a law enforced by the commission.

“We want to make sure the background checks are fair and equitable,” Saporta said. “AB 1428 does not take into account the time passed since the person’s offense, the conduct thereafter, completion of the sentence and nature of the job sought — which is required under the Civil Rights Act.”

Proponents of the legislation say fingerprinting of new employees and conducting background checks are critical to ensure consumer protections. Conway went further, noting that her law is important because health benefits exchange workers, called “assisters,” will have access to sensitive data, such as health records and financial information.

“We must ensure that California’s strong privacy protections are applied to those who are working with sensitive data about citizens,” Conway said in a news release. “Passing our legislation is essential to protecting Californians from becoming victims of identity theft when they sign up for health coverage and ensure that there are no incidents of fraud in our new state health care program.”

There seems to be consensus that the second bill — SB 509, which is co-authored by Assembly members Mark DeSaulnier (D-Concord) and Bill Emmerson (R-Redlands) — will pass without amendments. It would require health exchange officials to submit fingerprint images and related criminal background information for each prospective Covered California employee to the Department of Justice for review. The law would apply to anyone who could have access to confidential consumer data, including employees and independent contractors.
Legal and advocacy organizations clarified that their concern lies with the potential disqualification of employees with a criminal past.

Both bills require a two-thirds vote. If passed by the Legislature and signed by Gov. Jerry Brown (D), the laws would take effect immediately, officials said. Both are “urgency” bills.

‘We’ve Got a Deadline To Meet’
Robert Ross — a Covered California board member and CEO of California Endowment — said he and other health experts deliberated the details of AB 1428 for months before deciding to move forward with the proposal.

“We’ve got a deadline to meet, and the clock is ticking,” Ross said. “We on the board are managing a few different tensions — one is speed. We’ve never been asked to implement something as big as the health care law so quickly, so we’re working as hard as we can to get thousands of workers hired and trained by Oct. 1.”

Ross said delaying the passage of the bills could derail rollout of the state’s health insurance exchange, where an estimated 5.3 million Californians will be eligible to purchase health insurance later this year.

Ross said he raised questions in early March about disqualifying some populations from being eligible for work in the exchange.

“My concern was that we didn’t impede on the job opportunities for someone who may have had trouble with the law but who has turned their life around,” Ross said. “It’s clear that many of these communities — whether they’re in East Los Angeles, or Central Fresno, or East Oakland, or the Iron Triangle in Richmond — need access to decent jobs. Career pathways are already severely limited for many of the people who live there.”

Maurice Emsellem, co-director of policy for the National Employment Law Project’s Oakland office, echoed the concerns of Covered California’s board, noting that balancing employment rights with concerns about patient privacy is critical. His top concern, he said, is ensuring that AB 1428 meets legal requirements under the state’s equal employment laws and that there are job opportunities for populations who need them most.

“The Equal Opportunity Employment Commission, the federal agency that enforces discrimination laws, has said that criminal background checks have a disparate impact on people of color and that employers can’t have blanket restrictions on who they hire,” Emsellem said. “They have to look at the nature of the offense. That’s why we think it’s important to have stronger standards and an appeal procedure for someone who has a record, so they have the opportunity to show they’ve been rehabilitated.”

Emsellem pointed to higher unemployment rates in underserved communities. The most recent employment data show that in Oakland, for example, the city’s jobless rate is 10.8%, compared to the Alameda County average of 7%. A few miles north in Richmond, the city is experiencing an 11.6% unemployment rate, compared with Contra Costa County’s 7%.
“We’re still struggling with high unemployment rates in lower income communities of California,” Emsellem said. “There’s a real opportunity to create some good jobs where they’re desperately needed.”

Conway said ensuring privacy for the state’s residents trumps the need for jobs, adding that many private companies require employees to go through criminal screenings.

“While I understand the challenges of finding employment following incarceration, consumer protection must come first,” she said. “We need to be sure that these employees, who will handle sensitive personal and health data, have no criminal histories.”

Both Arguments Have Merit, Experts Say
Outside experts say concerns raised by the Greenlining Institute and others are fair. Nadereh Pourat — director of research for the UCLA Center for Health Policy Research who is familiar with the details of Conway’s bill — said both arguments have merit.

She and others pointed out that the people who are going to be enrolling Californians in the health exchange will often come from the very population the exchange is trying to reach — the unemployed or underemployed.

“The problem is Covered California is trying to gain support and participation from underserved populations who often times have had negative experiences with the health care system and the government in general,” Pourat said. “So I can see concerns on both sides.”

Pourat said, however, that the state must guard against risk for fraud and abuse when it comes to patients’ confidential information.

“Asking people for their Social Security number, for example, is a very sensitive issue,” she added. “It is very important that people understand that there is some form of oversight and supervision, so I think it is reasonable to ask for background checks.”

The Assembly Committee on Health approved Conway’s fingerprinting and background check legislation. It must pass the same committee in the Senate before it makes its way through both Appropriations Committees, to the Legislature and finally to Brown for final approval. Meanwhile, SB 509 passed through the Senate Committee on Health last week, and now must pass the health committee in the Assembly.

The bills have until the close of the legislative calendar year this September to become law. Policy analysts said they expect SB 509 and AB 1428 to pass early this summer.

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