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Resolved: Te Supreme Court rightly

decided that Section 4 of the Voting


Rights Act violated the Constitution.
Champion Briefs
February 2013
Public Forum Brief













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The Evidence Standard ___________________________ 3

Topic Analyses _________________________________ 7
Topic Analysis by Danny Rego ______________________________ 8
Topic Analysis by Ethan Goldstein _________________________ 13
Topic Analysis by Grant Sinnott ___________________________ 19

General Information ____________________________ 23

Possible Frameworks ___________________________ 43

Pro Arguments with Con Responses _______________ 50
Court Ruling Followed Prior Court Precedent _________________ 51
A/2: Court Ruling Followed Prior Court Precedent __________ 55
Discrimination Against States Always Unconstitutional _________ 59
A/2: Discrimination Against States Always Unconstitutional ___ 62
Discrimination Against States Lacks Reason _________________ 66
A/2: Discrimination Against States Lacks Reason __________ 69
States Should Be Treated Equally ___________________________ 72
A/2: States Should Be Treated Equally _____________________ 75
States Have the Right to Self-Govern _________________________ 78
A/2: States Have the Right to Self-Govern __________________ 81
Disparate Impact _________________________________________ 84
A/2: Disparate Impact ___________________________________ 89
Violations of Federalism ___________________________________ 94
A/2: Violations of Federalism ____________________________ 102
Judicial Review and Limiting Federal Power _________________ 107
A/2: Judicial Review and Limiting Federal Power __________ 111
Outdated Formula _______________________________________ 117
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A/2: Outdated Formula _________________________________ 122
Section 2 Necessary ______________________________________ 127
A/2: Section 2 Necessary ________________________________ 131
15th Amendment Violations Prevented by Section 3 ___________ 140
A/2: 15th Amendment Violations Prevented by Section 3 _____ 140
Court Ruling Protects Voting Rights with Section 5 ____________ 144
A/2: Court Ruling Protects Voting Rights with Section 5 _____ 148
Equal Sovereignty and Equal Protection _____________________ 152
A/2: Equal Sovereignty and Equal Protection ______________ 156
Unconstitutional due to Necessary and Proper Clause __________ 160
A/2: Unconstitutional due to Necessary and Proper Clause ___ 164
Overstep of the Federal Government ________________________ 168
A/2: Overstep of the Federal Government _________________ 171


Con Arguments with Pro Responses ______________ 176
Covered Jurisdictions Still Have Worst Voting Conditions ______ 177
A/2: Covered Jurisdictions Still Have Worst Voting Conditions 181
The Decision Invalidates Section 5 Unjustly __________________ 184
A/2: The Decision Invalidates Section 5 Unjustly ____________ 189
Section 2 of the VRA is an Imperfect Replacement ____________ 192
A/2: Section 2 of the VRA is an Imperfect Replacement ______ 196
The VRA is Preferable to New Legislation ___________________ 199
A/2: The VRA is Preferable to New Legislation _____________ 204
Supreme Court Should Practice Severe Judicial Restraint ______ 207
A/2: Supreme Court Should Practice Severe Judicial Restraint 212
Elections Clause Allows Congress to Choose __________________ 216
A/2: Elections Clause Allows Congress to Choose ___________ 220
Section Five is the Constitutional Flaw, not Section Four _______ 223
A/2: Section Five is the Constitutional Flaw, not Section Four _ 226
Preclearance Still Necessary _______________________________ 229
A/2: Preclearance Still Necessary ________________________ 232
Decision Removes Progress Made to Provide Equality _________ 236
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A/2: Decision Removes Progress Made to Provide Equality ___ 239
States Dont Need to be Treated Equally _____________________ 242
A/2: States Dont Need to be Treated Equally ______________ 246
State Equality is not a Constitutional Requirement ____________ 248
A/2: State Equality is not a Constitutional Requirement _____ 251
Different Coverage Formulas not Politically Possible __________ 254
A/2: Different Coverage Formulas not Politically Possible ____ 259
15th Amendment Grants Congress These Powers _____________ 262
A/2: 15th Amendment Grants Congress These Powers _______ 267
Civil Rights Questions are Answered by Congress _____________ 270
A/2: Civil Rights Questions are Answered by Congress ______ 274
There is still a need for Section 4 of the VRA _________________ 277
A/2: There is still a need for Section 4 of the VRA ___________ 282


Topic Analyses
Champion Briefs
February 2013
Public Forum Brief
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Resolved: The Supreme Court rightly decided that Section 4 of the Voting Rights Act violated
the Constitution.

Being frustrated with this topic at first glance is completely legitimate. Constitutionality
is always a tough issue to debate, but this topic is not only about that. The Supreme Courts
decision surrounded the issues of discrimination, federalism, and timeliness. These are issues
that reach into the deep recesses of our country and its history. My main issue with this topic is
not the issue of individual rights and the Supreme Court but rather with the constitutional issue
that the NFL chose to examine.

This topic is not only narrow but it is difficult to access because the topic is worded in a
way saying not that that Section 4 is unconstitutional but rather that the decision was correct.
This limits the debate in an unnecessary way because it will force teams from the Affirmative to
either debate the same arguments made by the Supreme Court or deal with frameworks by the
Negative that attempt to force them into that advocacy. The wording of the topic makes is
unnecessarily ultra-specific and this is going to lessen the quality of debates because teams wont
be able to access a plethora of constitutional ground. Additionally, limiting the debate to this one
section reduces the ability for this debate to come down to different issues in every round. Im
not suggesting that the topic should have been whether or not the Voting Rights Act itself was
unconstitutional; what I am suggesting is that the other topic regarding religious exemptions
would have been the lesser of the evils because that would at least allow debaters to discuss the
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extent to which rights apply. This topic is not one about rights but rather if the system in place to
correct for rights infringements is still valid or not.

So how do teams win on this topic? The first thing that each team needs to establish is
how the Supreme Court ought to operate when it interprets the Constitution. This is vital to
answering the question of whether or not they decided correctly because the answer will most
certainly change depending on how they are supposed to interpret the Constitution as well as
what their role within society is. This can either be done at the framework level or the contention
level. The framework level is more practical because it makes it an overarching argument within
the round as opposed to an argument that can be beaten and then ignored. This is an argument
that will be the internal link of either teams case because it will determine whether or not your
arguments answer the question based upon the Courts calculus.

The second thing that is necessary for both teams is establishing the grounds on which
the round will be decided. What I mean by this is that you need to establish and explain the main
issues concerning the constitutionality of Section 4. This will be weaved through the contention
level arguments of your case and will be the core tenets of your voting issues at the end of the
round. On both sides, you will have multiple different ways of linking into the decisions
constitutionality, but ultimately it will come back to those main core tenets that I mentioned at
the beginning of this topic analysis. This will make it easier for you to boil down the round to a
few main arguments regarding the validity of Section 4. This is key because constitutionality is a
difficult topic to relay to judges because there is very little room to weigh; if you prove your
constitutional arguments and warrants, then the impact is simply that the Section is constitutional
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or not. Essentially, this topic is going to be much more focused on the link debate than on the
impact analysis.

The third thing that both teams need to do is understand the history and precedent that
followed the Voting Rights Act, its amendments, and its history in the U.S. court system. These
can change the course of the round if you are not fully informed because the precedent is
bilateral but some cases are more applicable or are better apt to helping judge the question of
whether or not this section is topical. Moreover, it is important to note that both teams are most
likely going to have to argue the role that precedent plays within the court system as well as the
burden of proof necessary to deem something unconstitutional or constitutional. On the
Affirmative, you are going to want to argue that the court must interpret the Constitution in such
a way that looks to the potential harms to the individual citizens rights, which means that they
have a lower burden of proof to rule something as unconstitutional. On the Negative, you should
argue that the Supreme Court ought take the greatest care when ruling something
unconstitutional because the legislature has the power to enforce laws and the Constitution
through appropriate legislation. The Supreme Court should only intervene with legislative
powers when absolutely necessary, which means that there is a higher burden of proof in order to
rule something unconstitutional.

Teams need to be careful about how they are going to choose to interpret the resolution
because it can change the course of the round. In the Framework section, we analyze a few
different ways to approach the topic. One way is for you to analyze it in the sense of looking at
the specific decision made and whether or not it was correct in its entirety. This will allow you to
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make many different arguments on the negative that the decision didnt encompass everything it
needed to or that it was insufficient. You can also choose to interpret the resolution in a manner
that says the decision was made and that you only need to come to that same conclusion in order
to win the round. This will allow you to answer the question of the resolution in multiple
different ways to allow for the most amount of diversification.

On the Affirmative, the most compelling strategy would be one that approaches the case
in totally different ways. I would recommend arguing that the formula based on old data is no
longer applicable because the times have changed and discrimination is no longer as prevalent as
it was back in the day. This would make Section 4 unconstitutional because it creates an undue
burden on states. The second possible argument that is compelling is that because this section
does not apply to all states equally, it does not meet the standard of all states being equally
sovereign. Under this argument, you can also argue that this is an undue infringement upon state
rights by the federal government, which is compounded by the fact that it isnt applicable to all
states equally. Another approach is to explain that because current precedent is not applicable
(because the precedent doesnt deal with the timeliness aspect), the Supreme Court has to create
a precedent that answers the troubling question in order to prevent infringement upon rights in
the future. The last argument that I find compelling is the idea that the decision rightly decided
that other sections, such as 3 or 5, are constitutional, which circumvent the unconstitutional
aspects or risks of constitutionality of Section 4; thus the Supreme Court rightly decided.

On the Negative, the first argument that should be at the top of the case is the idea that
discrimination is still prevalent within the U.S. or in the regions defined by the law and, thus,
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still remains necessary. Second, I would argue that the Supreme Court needs to practice strict
restraint in order to prevent an infringement upon legislative powers when such an infringement
is unwarranted. Third, I would argue that the sections that the court did uphold, such as Section
5, couldnt be used without Section 4 being in place because it invalidates the main tenets of the
law. Overall, I think that both teams are going to have a difficult time finding clash in a round
when there a so many topic interpretations and arguments that follow it.

Good Luck!

About Danny Rego

Danny Rego attended and competed for University School of Nova Southeastern
University and graduated in May, 2012. He competed in Public Forum Debate throughout his
entire 4 years of high school. He won the Tournament of Champions (2012) and Crestian Classic
(2011). He was a finalist at the Florida State Tournament and the Crestian Classic (2012). He
was a late elimination round competitor at the Glenbrooks, Emory, and Apple Valley. Danny is
currently a sophmore at Northeastern University majoring in International Business and
minoring in International Affairs and Economics. He spends his summers instructing at the
Champion Briefs Institute.


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Before I begin my Topic Analysis, I would like to introduce myself to our readers. I am
Ethan Goldstein, a former 4-year Public Forum debater from American Heritage School. And
yes, my partner did win Nationals in Congress. Now that weve gotten the awkward first
introduction out of the way, lets delve into the topic of arguably the biggest month on the PF
circuit.

Resolved: The Supreme Court rightly decided that Section 4 of the Voting Rights Act violated
the Constitution.

I have to say that February is one of my favorite months of debate and this year, like past
years, the February topic is very straightforward. Unfortunately this year, the resolution is very
straightforward about a very confusing issue. Basically, I dont think you should worry about
arguing definitions, but the subject matter of Section 4 is very difficult to understand.

So lets first begin with some background information on the Voting Rights Act and
Section 4. The Voting Rights Act was passed in 1965 and was aimed at reducing electoral
corruption and discrimination by creating something known as preclearance. Preclearance
forced all districts that met a certain requirement to get approval from the U.S. Attorney General
or a 3-judge panel of the U.S. District Court of D.C. if they wish to make any changes that could
affect voting. Shelby County v Holder (2013), the case in question, struck down Section 4(b) as
Unconstitutional. The court ruled that the criterion used outdated data and thus put an
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Unconstitutional burden on the federal government to oversee this state issue of voting. This
specific section established the criterion for a district needing preclearance. It is very important
to recognize that Section 4(b) only determined the criterion. However, once ruled
Unconstitutional, preclearance can no longer be practiced until or unless new legislation is
passed. It is also very important to realize that the Section 4(b) standards only applied to very
few states, mostly in the south. This means that the law was never some sweeping mandate used
across the entire nation, but rather it was instituted as a check and balance on racial
discrimination.

For this topic, it is very important to know the constitution. Obviously Im not suggesting
that you all become Constitutional scholars in a week, but definitely brush up on your
Constitutional knowledge. Knowing more than your opponents about the constitution can be an
effective way at refuting your opponents contentions without cards that specifically relate to the
arguments your opponents use. As discussed earlier, there is a short turnover from January to
February so the amount of research you compile may be less than you compile for other
tournaments. But a broader knowledge of the constitution can a) make your opponents lose
credibility with the judge; and b) allow you to effectively refute without reading card after card
after card.

I believe the nature of this topic will tend to favor debaters who analyze arguments rather
than just simply read cards. I honestly believe that a second speaker can give a brilliant rebuttal
only using one or two cards. I think judges will prefer analytics to card reading because the
resolution begs the debaters (you guys) to tell the judge WHY, not WHAT. Why was the
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Supreme Court right or not right in making this decision? For example, while with past topics
you could read cards that essentially say According to this professor from this prestigious
university, my opponents are wrong, I can guarantee that you will not be able to get away with
that on this topic. So brush up on your Constitutional knowledge and focus on analyzing and
explaining rather than just card reading.

This resolution, unlike past topics, is not asking the judge to choose between two
different options, but rather this resolution is a truth test. The Supreme Court did strike down
Section 4 of the Voting Rights Act, now lets debate if they were right in doing so. A lot of
you will be coming off a very busy month of January and as such the turnover between topics is
fairly short. This will require some strategic prepping. Given the wording of this topic, you
probably are not going to win rounds off case turns. In other words, because this topic is a truth
test, dropping ones case and hoping to win off turns read in rebuttal is not the best decision when
trying to win rounds. Instead, I suggest having well-warranted, strong cases that you can win
with independently of winning your opponents case. I think this topic more than any other so far
this year could come down to which team has the better case.

I think that most rounds will be won in the framework debate. Some of you will love this
and others will find this too nitpicky for your liking. Regardless, I truly believe that all cases
should absolutely have some sort of framework establishing the mechanisms you will be using to
analyze the Constitutionality of this decision. Teams should be analyzing Constitutionality on
pillars such as Federalism, popular sovereignty, voter turnout, etc. Because this topic applies
specifically to voting regulations; think back to the Citizens United topic and remember some of
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the Constitutional standards you debated. Ideas such as voter turnout, voter knowledge, voter
responsiveness, and voter fairness could all be applied to this topic. My suggestion is to write a
framework that includes a few of these democratic ideals, tell the judge why these are the most
important in analyzing the Constitutionality of the decision, and write contentions that support
that framework.

Lets look specifically to the Pro side of this debate. Because a judge could be very
opinionated about this topic, I think its important to point out that you are debating
Constitutionality, not your personal feelings. With that being said, I think the pro should use the
courts decision to its advantage. What I mean by this is use the courts reasoning to develop
your arguments. The court ruled that the coverage formula was outdated considering it was
implemented over 40 years ago. I think you could use that line of logic to your advantage and
explain that since the Constitution is a living, breathing document, things need to be changed
over time. I also believe the pro could make a compelling argument that the U.S. has undergone
dramatic changes since the 1960s and that the Voting Rights Act is no longer required. I think
you could back this argument up by giving statistics about minority voting rates in recent
elections.

I think another good way for the pro to win rounds is via Federalism. You could easily
argue that Section 4(b) gave the federal government too much power over the states to determine
voting regulations for the states. I also think Pro could make the argument that not many districts
were affected to begin with and then challenge the negative team to show some dramatic change
that will happen as a result of the decision. I think the best way for Pro to approach the round is
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based strictly on Constitutionality rather than emotions, and challenge the negative team to show
absolute harms that will occur as a result of the decision.

On the Con side of the debate, I think debaters should stress that current voting habits are
nowhere near equal and that Section 4(b) is absolutely necessary to insure an equal and fair
election system. I think Con should focus on the Constitutional standards of equality and
fairness. Con could present a very compelling case arguing that currently there are still issues
with electoral equality and fairness, prove that Section 4(b) reduces that inequality, and ague that
decreasing fairness in anyway is antithetical to Constitutional views. I think most judges will
want to side with the Con based on personal views, so use that to your advantage. Good negative
teams will argue that inequality and unfairness in elections has been decreasing over time and
find evidence that attributes that success to the Voting Rights Act. The Con has the ability to
play the speculation game. They can easily make the argument that we will not truly know what
will happen as a result of the decision and that the devil you know if better than the devil you
dont know. Pigeonhole the affirmative into defending an election system with no check on
racial discrimination or force them explain how new legislation could solve this problem better.
The negative team should be constantly asking the affirmative to explain how taking away
checks and balances on racial discrimination could possibly lead to a more democratic society.

I think Pro is a more technical side, while I think Con can use some bigger picture ideas
to their advantage. With that being said, I am extremely excited to see this topic debated as a bit
of a Constitutional scholar myself. Good luck to everyone in the monster month that is February
and I hope to see many of you at Harvard!
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About Ethan Goldstein

Ethan Goldstein attended and competed for American Heritage in Florida for four years
and graduated in 2013. During his career, he championed the 2013 NCFL Grand National
Tournament, the 2012 Wake Forest Earlybird, and the 2011 & 2012 Villager Invitational.
Additionally, he was a finalist at Emory, the Sunvitational, and the Sunvitational Round Robin
and was named the top speaker at the 2012 Tournament of Champions. He currently attends the
University of Florida where he is studying political science and economics.


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Resolved: The Supreme Court rightly decided that Section 4 of the Voting Rights Act violated
the Constitution.

Due to the narrow nature of the fundamental question of this resolution, several factors
that may not play as large of a role in other resolutions will become more critical for success.
The first area we will look at is one (that my topic analyses dont normally touch on) is the
history of the conflict and why this resolution has been chosen. Rob Teilhet offers one of the best
explanations of the problems of the past that I could find. He explains:

Prior to the Voting Rights Act, voter suppression and intimidation were
widespread and institutional. Schemes designed to keep African-Americans from voting
were commonplace and barely disguised usually in the form of a poll tax, literacy test
or grandfather clause. In 1965, Congress passed the Voting Rights Act, designed to
outlaw discriminatory voting practices that had led to the widespread disenfranchisement
of African-Americans.
1


By understanding from where this law comes, discrimination, and racism in south, we are
better able to understand the constitutional challenges of today. The voting rights act clearly

"
Teilhet, Rob. "Our election politics: Present just like past."University of Georgia. (2013 ): n.
page. Web. 7 Jan. 2014. <http://blogs.ajc.com/atlanta-forward/2013/02/25/voting-rights-act-
debate/>.


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empowers minorities with special protection, but are these protections still needed and are they
fair to all citizens? To better understand the questions of this resolution, it is necessary to look at
the scoop and overreaching impact of the section. This section has been used in a host of cases to
stop things like voter ID laws from coming into fruition; I would suggest further research
specific actions that this law has been used to stop. Before engaging in the debate of whether or
not the benefits of the law are good or bad / right or wrong, I think it is important to ask whether
it is the role of the judiciary and the constitution to fix the problems that this law is meant to stop
or the role of the legislature.
This debate could be answered on two levels in my mind. The first is a pragmatic level. It
could be argued that judicial activism is needed because the legislature is failing to do its job to
pass policy. On the other side, it could be argued that because the law has existed, the legislature
has felt no need to pass policy and that this decision has overstepped the role of the judiciary,
who some would argue exist solely to interpret. This debate stems back into a discussion of
whether the SCOTUS should interpret the constitution as a living document one that is fluid
and needs to be changed or as a set in stone set of instructions that should not be altered.
Interesting justifications for both sides surely exist, but I think the best example is that if we
interpreted the constitution strictly, the practice of slavery still might exist today. With this in
mind, I think intuition suggests that almost anything is and should be up for change, but there are
most definitely people with other lines of thought.
I like how these arguments are directly predicated around the idea of constitutionality, by
defining the way the document should be interpreted it will become easier for teams to defend
their own arguments and attacks others. When thinking about the substance of this topic, I
imagine many teams will carve out specific advocacies about how without this section X policy
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will pass that will cause Y rights violation that violates Z part of the constitution. Luckily the
decision was made on a 5-4, so there is clearly room for contention on the issue, and I dont
think arguments about SCOTUS being the best decider are going to work. Anyways, these niche
positions are a creative way to frame the topic and find unique justifications for why the law is or
is not constitutional.
The other side could make counter claims about the over extension of the law and how
these negatively effect rights and violate the constitution. Ultimately, I think this sides ground is
slightly limited and that the teams who are going to win on the affirmative are going to be able to
tell a persuasive narrative about why the problems that justified these special conditions in the
south are no longer relevant today. Here, I think arguments that agree that the problems still exist
but that they are not of the same magnitude as in the past will be effective. When the ruling was
made, these issues were much worse, and while there are some problems today they are not on
par with what they use to be. This could invalidate the constitutional bases of the negative
position.
For all teams, I offer some random advice. Amicus briefs submitted to the Supreme
Court are going to be some of the best evidence you can find. Secondly, it is important to
understand the underpinnings of the decision both current and past. Find out why it was
constitutional then and why it is unconstitutional now, this will enable you to link or delink
weird arguments or specific disadvantages.
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About Grant Sinnott

Grant Sinnott was a Public Forum debater for Lake Highland Prep in Florida and
graduated in May 2013. He was the Champion of the 2013 NFL National Tournament, the
Sunvitational, Sunvitational Round Robin, the Florida State Tournament. Additionally, he was a
finalist at the Tournament of Champions, the Glenbrooks, and Emory. Throughout his career, he
amassed 10 TOC bids among other achievements. Grant currently attends the University of
Florida in Gainesville, FL.
General
Information
Champion Briefs
February 2013
Public Forum Brief
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Resolved: The Supreme Court rightly decided that Section 4 of the
Voting Rights Act violated the Constitution.

Foreword: We, at Champion Briefs, feel that having deep knowledge
about a topic is just as valuable as formulating the right arguments.
Having general background knowledge about the topic area helps
debaters form more coherent arguments from their breadth of
knowledge. As such, we have compiled general information on the key
concepts and general areas that we feel will best suit you for in- and out-
of-round use. Any strong strategy or argument must be built from a
strong foundation of information; we hope that you will utilize this
section to help build that foundation.
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7"8,-*# 5 *) 9*,-#: ;-:<,= >8, *) 4?@6

SEC. 4. (a) To assure that the right of citizens of the United States to vote is not denied or
abridged on account of race or color, no citizen shall be denied the right to vote in any Federal,
State, or local election because of his failure to comply with any test or device in any State with
respect to which the determinations have been made under subsection (b) or in any political
subdivision with respect to which such determinations have been made as a separate unit, unless
the United States District Court for the District of Columbia in an action for a declaratory
judgment brought by such State or subdivision against the United States has determined that no
such test or device has been used during the five years preceding the filing of the action for the
purpose or with the effect of denying or abridging the right to vote on account of race or color:
Provided, That no such declaratory judgment shall issue with respect to any plaintiff for a period
of five years after the entry of a final judgment of any court of the United States, other than the
denial of a declaratory judgment under this section, whether entered prior to or after the
enactment of this Act, determining that denials or abridgments of the right to vote on account of
race or color through the use of such tests or devices have occurred anywhere in the territory of
such plaintiff. An action pursuant to this subsection shall be heard and determined by a court of
three judges in accordance with the provisions of section 2284 of title 28 of the United States
Code and any appeal shall lie to the Supreme Court. The court shall retain jurisdiction of any
action pursuant to this subsection for five years after judgment and shall reopen the action upon
motion of the Attorney General alleging that a test or device has been used for the purpose or
with the effect of denying or abridging the right to vote on account of race or color.
If the Attorney General determines that he has no reason to believe that any such test or
device has been used during the five years preceding the filing of the action for the purpose or
with the effect of denying or abridging the right to vote on account of race or color, he shall
consent to the entry of such judgment.
(b) The provisions of subsection (a) shall apply in any State or in any political subdivision of a
state which (1) the Attorney General determines maintained on November 1, 1964, any test or
device, and with respect to which (2) the Director of the Census determines that less than 50
percentum of the persons of voting age residing therein were registered on November 1, 1964, or
that less than 50 percentum of such persons voted in the presidential election of November 1964.
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A determination or certification of the Attorney General or of the Director of the Census
under this section or under section 6 or section 13 shall not be reviewable in any court and shall
be effective upon publication in the Federal Register.
(c) The phrase "test or device" shall mean any requirement that a person as a prerequisite for
voting or registration for voting (1) demonstrate the ability to read, write, understand, or interpret
any matter, (2) demonstrate any educational achievement or his knowledge of any particular
subject, (3) possess good moral character, or (4) prove his qualifications by the voucher of
registered voters or members of any other class.
(d) For purposes of this section no State or political subdivision shall be determined to have
engaged in the use of tests or devices for the purpose or with the effect of denying or abridging
the right to vote on account of race or color if (1) incidents of such use have been few in number
and have been promptly and effectively corrected by State or local action, (2) the continuing
effect of such incidents has been eliminated, and (3) there is no reasonable probability of their
recurrence in the future.
(e) (1) Congress hereby declares that to secure the rights under the fourteenth amendment of
persons educated in American-flag schools in which the predominant classroom language was
other than English, it is necessary to prohibit the States from conditioning the right to vote of
such persons on ability to read, write, understand, or interpret any matter in the English
language. (2) No person who demonstrates that he has successfully completed the sixth primary
grade in a public school in, or a private school accredited by, any State or territory, the District of
Columbia, or the Commonwealth of Puerto Rico in which the predominant classroom language
was other than English, shall be denied the right to vote in any Federal, State, or local election
because of his inability to read, write, understand, or interpret any matter in the English
language, except that, in States in which State law provides that a different level of education is
presumptive of literacy, he shall demonstrate that he has successfully completed an equivalent
level of education in a public school in, or a private school accredited by, any State or territory,
the District of Columbia, or the Commonwealth of Puerto Rico in which the predominant
classroom language was other than English (Transcript of Voting Rights Act (1965)).

Other Relevant Sections of Voting Rights Act

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SEC. 3. (a) Whenever the Attorney General institutes a proceeding under any statute to enforce
the guarantees of the fifteenth amendment in any State or political subdivision the court shall
authorize the appointment of Federal examiners by the United States Civil Service Commission
in accordance with section 6 to serve for such period of time and for such political subdivisions
as the court shall determine is appropriate to enforce the guarantees of the fifteenth amendment
(1) as part of any interlocutory order if the court determines that the appointment of such
examiners is necessary to enforce such guarantees or (2) as part of any final judgment if the court
finds that violations of the fifteenth amendment justifying equitable relief have occurred in such
State or subdivision: Provided, That the court need not authorize the appointment of examiners if
any incidents of denial or abridgement of the right to vote on account of race or color (1) have
been few in number and have been promptly and effectively corrected by State or local action,
(2) the continuing effect of such incidents has been eliminated, and (3) there is no reasonable
probability of their recurrence in the future.
(b) If in a proceeding instituted by the Attorney General under any statute to enforce the
guarantees of the fifteenth amendment in any State or political subdivision the court finds that a
test or device has been used for the purpose or with the effect of denying or abridging the right of
any citizen of the United States to vote on account of race or color, it shall suspend the use of
tests and devices in such State or political subdivisions as the court shall determine is appropriate
and for such period as it deems necessary.
(c) If in any proceeding instituted by the Attorney General under any statute to enforce the
guarantees of the fifteenth amendment in any State or political subdivision the court finds that
violations of the fifteenth amendment justifying equitable relief have occurred within the
territory of such State or political subdivision, the court, in addition to such relief as it may grant,
shall retain jurisdiction for such period as it may deem appropriate and during such period no
voting qualification or prerequisite to voting, or standard, practice, or procedure with respect to
voting different from that in force or effect at the time the proceeding was commenced shall be
enforced unless and until the court finds that such qualification, prerequisite, standard, practice,
or procedure does not have the purpose and will not have the effect of denying or abridging the
right to vote on account of race or color: Provided, That such qualification, prerequisite,
standard, practice, or procedure may be enforced if the qualification, prerequisite, standard,
practice, or procedure has been submitted by the chief legal officer or other appropriate official
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of such State or subdivision to the Attorney General and the Attorney General has not interposed
an objection within sixty days after such submission, except that neither the court's finding nor
the Attorney General's failure to object shall bar a subsequent action to enjoin enforcement of
such qualification, prerequisite, standard, practice, or procedure (Transcript of Voting Rights
Act (1965)).

SEC. 5. Whenever a State or political subdivision with respect to which the prohibitions set
forth in section 4(a) are in effect shall enact or seek to administer any voting qualification or
prerequisite to voting, or standard, practice, or procedure with respect to voting different from
that in force or effect on November 1, 1964, such State or subdivision may institute an action in
the United States District Court for the District of Columbia for a declaratory judgment that such
qualification, prerequisite, standard, practice, or procedure does not have the purpose and will
not have the effect of denying or abridging the right to vote on account of race or color, and
unless and until the court enters such judgment no person shall be denied the right to vote for
failure to comply with such qualification, prerequisite, standard, practice, or procedure:
Provided, That such qualification, prerequisite, standard, practice, or procedure may be enforced
without such proceeding if the qualification, prerequisite, standard, practice, or procedure has
been submitted by the chief legal officer or other appropriate official of such State or subdivision
to the Attorney General and the Attorney General has not interposed an objection within sixty
days after such submission, except that neither the Attorney General's failure to object nor a
declaratory judgment entered under this section shall bar a subsequent action to enjoin
enforcement of such qualification, prerequisite, standard, practice, or procedure. Any action
under this section shall be heard and determined by a court of three judges in accordance with
the provisions of section 2284 of title 28 of the United States Code and any appeal shall lie to the
Supreme Court.
SEC. 6. Whenever (a) a court has authorized the appointment of examiners pursuant to the
provisions of section 3(a), or (b) unless a declaratory judgment has been rendered under section
4(a), the Attorney General certifies with respect to any political subdivision named in, or
included within the scope of, determinations made under section 4(b) that (1) he has received
complaints in writing from twenty or more residents of such political subdivision alleging that
they have been denied the right to vote under color of law on account of race or color, and that
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he believes such complaints to be meritorious, or (2) that, in his judgment (considering, among
other factors, whether the ratio of nonwhite persons to white persons registered to vote within
such subdivision appears to him to be reasonably attributable to violations of the fifteenth
amendment or whether substantial evidence exists that bona fide efforts are being made within
such subdivision to comply with the fifteenth amendment), the appointment of examiners is
otherwise necessary to enforce the guarantees of the fifteenth amendment, the Civil Service
Commission shall appoint as many examiners for such subdivision as it may deem appropriate to
prepare and maintain lists of persons eligible to vote in Federal, State, and local elections. Such
examiners, hearing officers provided for in section 9(a), and other persons deemed necessary by
the Commission to carry out the provisions and purposes of this Act shall be appointed,
compensated, and separated without regard to the provisions of any statute administered by the
Civil Service Commission, and service under this Act shall not be considered employment for
the purposes of any statute administered by the Civil Service Commission, except the provisions
of section 9 of the Act of August 2, 1939, as amended (5 U.S.C. 118i), prohibiting partisan
political activity: Provided, That the Commission is authorized, after consulting the head of the
appropriate department or agency, to designate suitable persons in the official service of the
United States, with their consent, to serve in these positions. Examiners and hearing officers
shall have the power to administer oaths (Transcript of Voting Rights Act (1965)).

Cause of Suit Against the Attorney General
Shelby County is located in Alabama, a covered jurisdiction. It has not sought bailout, as the
Attorney General has recently objected to voting changes proposed from within the county. See
App. 87a92a. Instead, in 2010, the county sued the Attorney General in Federal District Court
in Washington, D. C., seeking a declaratory judgment that sections 4(b) and 5 of the Voting
Rights Act are facially unconstitutional, as well as a permanent injunction against their
enforcement. The District Court ruled against the county and upheld the Act. 811 F. Supp. 2d
424, 508 (2011). The court found that the evidence before Congress in 2006 was sufficient to
justify reauthorizing 5 and continuing the 4(b) coverage formula (SHELBY COUNTY,
ALABAMA v. HOLDER, ATTORNEY GENERAL, ET AL. Opinion of the Court 7).
70&-#8 *) ,9" :*0$,

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!"#$%&'( *+&,-. 63
Held: Section 4 of the Voting Rights Act is unconstitutional; its formula can no longer be used
as a basis for subjecting jurisdictions to pre- clearance. Pp. 925.
(a) In Northwest Austin, this Court noted that the Voting Rights Act imposes current
burdens and must be justified by current needs and concluded that a departure from the
fundamental principle of equal sovereignty requires a showing that a statutes disparate geo-
graphic coverage is sufficiently related to the problem that it targets. 557 U. S., at 203. These
basic principles guide review of the question presented here. Pp. 917.
(1) State legislation may not contravene federal law. States retain broad autonomy,
however, in structuring their governments and pursuing legislative objectives. Indeed, the Tenth
Amendment re- serves to the States all powers not specifically granted to the Federal
Government, including the power to regulate elections. Gregory v. Ashcroft, 501 U. S. 452,
461462. There is also a fundamental principle of equal sovereignty among the States, which is
highly pertinent in assessing disparate treatment of States. Northwest Austin, supra, at 203.
The Voting Rights Act sharply departs from these basic principles. It requires States to
beseech the Federal Government for permission to implement laws that they would otherwise
have the right to enact and execute on their own. And despite the tradition of equal sovereignty,
the Act applies to only nine States (and additional counties). That is why, in 1966, this Court
described the Act as stringent and potent, Katzenbach, 383 U. S., at 308, 315, 337. The Court
nonetheless upheld the Act, concluding that such an uncommon exercise of congressional
power could be justified by exceptional conditions. Id., at 334. Pp. 912.
(2) In 1966, these departures were justified by the blight of racial discrimination in
voting that had infected the electoral process in parts of our country for nearly a century,
Katzenbach, 383 U. S., at 308. At the time, the coverage formulathe means of linking the
exercise of the unprecedented authority with the problem that war- ranted itmade sense. The
Act was limited to areas where Congress found evidence of actual voting discrimination, and
the covered jurisdictions shared two characteristics: the use of tests and devices for voter
registration, and a voting rate in the 1964 presidential election at least 12 points below the
national average. Id., at 330. The Court explained that [t]ests and devices are relevant to voting
dis- crimination because of their long history as a tool for perpetrating the evil; a low voting rate
is pertinent for the obvious reason that widespread disenfranchisement must inevitably affect the
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!"#$%&'( *+&,-. 64
number of actual voters. Ibid. The Court therefore concluded that the cover- age formula [was]
rational in both practice and theory. Ibid. Pp. 1213.
(3) Nearly 50 years later, things have changed dramatically. Largely because of the
Voting Rights Act, [v]oter turnout and registration rates in covered jurisdictions now approach
parity. Blatantly discriminatory evasions of federal decrees are rare. And minority candidates
hold office at unprecedented levels. Northwest Austin, supra, at 202. The tests and devices that
blocked ballot access have been forbidden nationwide for over 40 years. Yet the Act has not
eased 5s restrictions or narrowed the scope of 4s coverage formula along the way. Instead
those extraordinary and unprecedented fea- tures have been reauthorized as if nothing has
changed, and they have grown even stronger. Because 5 applies only to those jurisdictions
singled out by 4, the Court turns to consider that provision. Pp. 1317.
(b) Section 4s formula is unconstitutional in light of current conditions. Pp. 1725.
(1) In 1966, the coverage formula was rational in both practice and theory. Katzenbach,
supra, at 330. It looked to cause (discriminatory tests) and effect (low voter registration and
turnout), and tailored the remedy (preclearance) to those jurisdictions exhibiting both. By 2009,
however, the coverage formula raise[d] serious constitutional questions. Northwest Austin,
supra, at 204. Coverage today is based on decades-old data and eradicated practices. The formula
captures States by reference to literacy tests and low voter registration and turnout in the 1960s
and early 1970s. But such tests have been banned for over 40 years. And voter registration and
turnout numbers in covered States have risen dramatically. In 1965, the States could be divided
into those with a recent history of voting tests and low voter registration and turnout and those
without those characteristics. 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. Pp. 1718.
(2) The Government attempts to defend the formula on grounds that it is reverse-
engineeredCongress identified the jurisdictions to be covered and then came up with criteria
to describe them. Katzenbach did not sanction such an approach, reasoning instead that the
coverage formula was rational because the formula . . . was relevant to the problem. 383 U. S.,
at 329, 330. The Government has a fallback argumentbecause the formula was relevant in
1965, its continued use is permissible so long as any discrimination remains in the States
identified in 1965. But this does not look to current political conditions, Northwest Austin,
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!"#$%&'( *+&,-. 62
supra, at 203, instead relying on a comparison between the States in 1965. But history did not
end in 1965. In assessing the current need[ ] for a preclearance system treating States
differently from one another today, history since 1965 cannot be ignored. The Fifteenth
Amendment is not designed to punish for the past; its purpose is to ensure a better future. To
serve that purpose, Congressif it is to divide the Statesmust identify those jurisdictions to be
singled out on a basis that makes sense in light of current conditions. Pp. 1821.
(3) Respondents also rely heavily on data from the record com- piled by Congress before
reauthorizing the Act. Regardless of how one looks at that record, no one can fairly say that it
shows anything approaching the pervasive, flagrant, widespread, and rampant
discrimination that clearly distinguished the covered jurisdictions from the rest of the Nation in
1965. Katzenbach, supra, at 308, 315, 331. But a more fundamental problem remains: Congress
did not use that record to fashion a coverage formula grounded in current conditions. It instead
re-enacted a formula based on 40-year-old facts having no logical relation to the present day. Pp.
2122.
679 F. 3d 848, reversed (SHELBY COUNTY, ALABAMA v. HOLDER, ATTORNEY
GENERAL, ET AL. Syllabus 2-4).

Excerpts from Chief Justice Roberts Majority Opinion

Regarding Section 5: The Court of Appeals for the D. C. Circuit affirmed. In assessing 5, the
D. C. Circuit considered six primary categories of evidence: Attorney General objections to
voting changes, Attorney General requests for more in- formation regarding voting changes,
successful 2 suits in covered jurisdictions, the dispatching of federal observers to monitor
elections in covered jurisdictions, 5 preclearance suits involving covered jurisdictions, and the
deter- rent effect of 5. See 679 F. 3d 848, 862863 (2012). After extensive analysis of the
record, the court accepted Congresss conclusion that 2 litigation remained inadequate in the
covered jurisdictions to protect the rights of minority voters, and that 5 was therefore still
necessary. Id., at 873 (SHELBY COUNTY, ALABAMA v. HOLDER, ATTORNEY
GENERAL, ET AL. Opinion of the Court 7-8).

Regarding Section 4:
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Framework for Decision: In Northwest Austin, we stated that the Act imposes current
burdens and must be justified by current needs. 557 U. S., at 203. And we concluded that a
departure from the fundamental principle of equal sovereignty re- quires a showing that a
statutes disparate geographic coverage is sufficiently related to the problem that it targets. Ibid.
These basic principles guide our review of the question before us (SHELBY COUNTY,
ALABAMA v. HOLDER, ATTORNEY GENERAL, ET AL. Opinion of the Court 9).

Regarding Supremacy Clause: State legislation may not contravene federal law. The
Federal Government does not, however, have a general right to review and veto state enactments
before they go into effect. A proposal to grant such authority to negative state laws was
considered at the Constitutional Convention, but rejected in favor of allowing state laws to take
effect, subject to later challenge under the Supremacy Clause (SHELBY COUNTY,
ALABAMA v. HOLDER, ATTORNEY GENERAL, ET AL. Opinion of the Court 9).

Regarding Equal State Sovereignty: Not only do States retain sovereignty under the
Constitution, there is also a fundamental principle of equal sovereignty among the States.
Northwest Austin, supra, at 203 (citing United States v. Louisiana, 363 U. S. 1, 16 (1960);
Lessee of Pollard v. Hagan, 3 How. 212, 223 (1845); and Texas v. White, 7 Wall. 700, 725726
(1869); emphasis added). Over a hundred years ago, this Court explained that our Nation was
and is a union of States, equal in power, dignity and authority. Coyle v. Smith, 221 U. S. 559,
567 (1911). Indeed, the constitutional equality of the States is essential to the harmonious
operation of the scheme upon which the Republic was organized. Id., at 580. Coyle concerned
the admission of new States, and Katzenbach rejected the notion that the principle operated as a
bar on differential treatment outside that context. 383 U. S., at 328329. At the same time, as we
made clear in Northwest Austin, the fundamental principle of equal sovereignty remains highly
pertinent in assessing subsequent disparate treatment of States. 557 U. S., at 203.
The Voting Rights Act sharply departs from these basic principles. It suspends all
changes to state election law however innocuousuntil they have been precleared by federal
authorities in Washington, D. C. Id., at 202. States must beseech the Federal Government for
permission to implement laws that they would otherwise have the right to enact and execute on
their own, subject of course to any injunction in a 2 action. The Attorney General has 60 days to
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object to a preclearance request, longer if he requests more information. See 28 CFR 51.9,
51.37. If a State seeks preclearance from a three- judge court, the process can take years.
And despite the tradition of equal sovereignty, the Act applies to only nine States (and
several additional counties). While one State waits months or years and expends funds to
implement a validly enacted law, its neighbor can typically put the same law into effect
immediately, through the normal legislative process. Even if a noncovered jurisdiction is sued,
there are important differences between those proceedings and preclearance proceedings; the
preclearance proceeding not only switches the burden of proof to the supplicant jurisdiction, but
also applies substantive standards quite different from those governing the rest of the nation.
679 F. 3d, at 884 (Williams, J., dissenting) (case below) (SHELBY COUNTY, ALABAMA v.
HOLDER, ATTORNEY GENERAL, ET AL. Opinion of the Court 10-11).

Regarding Original Ruling of Section 4: Shortly before enactment of the Voting
Rights Act, only 19.4 percent of African-Americans of voting age were registered to vote in
Alabama, only 31.8 percent in Louisiana, and only 6.4 percent in Mississippi. Id., at 313. Those
figures were roughly 50 percentage points or more below the figures for whites. Ibid.
In short, we concluded that [u]nder the compulsion of these unique circumstances,
Congress responded in a permissibly decisive manner. Id., at 334, 335. We also noted then and
have emphasized since that this extra- ordinary legislation was intended to be temporary, set to
expire after five years. Id., at 333; Northwest Austin, supra, at 199.
At the time, the coverage formulathe means of linking the exercise of the
unprecedented authority with the problem that warranted itmade sense. We found that
Congress chose to limit its attention to the geographic areas where immediate action seemed
necessary. Katzenbach, 383 U. S., at 328. The areas where Congress found evidence of actual
voting discrimination shared two characteristics: the use of tests and devices for voter
registration, and a voting rate in the 1964 presidential election at least 12 points below the
national average. Id., at 330. We explained that [t]ests and devices are relevant to voting
discrimination because of their long history as a tool for perpetrating the evil; a low voting rate is
pertinent for the obvious reason that widespread disenfranchisement must inevitably affect the
number of actual voters. Ibid. We therefore concluded that the coverage formula [was] rational
in both practice and theory. Ibid. It accurately reflected those jurisdictions uniquely
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!"#$%&'( *+&,-. 67
characterized by voting discrimination on a pervasive scale, linking coverage to the devices
used to effectuate discrimination and to the resulting disenfranchisement. Id., at 308. The
formula ensured that the stringent remedies [were] aimed at areas where voting discrimination
ha[d] been most flagrant. Id., at 315 (SHELBY COUNTY, ALABAMA v. HOLDER,
ATTORNEY GENERAL, ET AL. Opinion of the Court 12-13).

Regarding the Necessity of Section 4: Nearly 50 years later, things have changed
dramatically. Shelby County contends that the preclearance requirement, even without regard to
its disparate coverage, is now unconstitutional. Its arguments have a good deal of force. In the
covered jurisdictions, [v]oter turnout and registration rates now approach parity. Blatantly
discriminatory evasions of federal decrees are rare. And minority candidates hold office at
unprecedented levels. Northwest Austin, 557 U. S., at 202. The tests and devices that blocked
access to the ballot have been forbidden nation- wide for over 40 years. See 6, 84 Stat. 315;
102, 89 Stat. 400.
Those conclusions are not ours alone. Congress said the same when it reauthorized the
Act in 2006, writing that [s]ignificant progress has been made in eliminating first generation
barriers experienced by minority voters, including increased numbers of registered minority
voters, minority voter turnout, and minority representation in Congress, State legislatures, and
local elected offices. 2(b)(1), 120 Stat. 577. The House Report elaborated that the number of
African-Americans who are registered and who turn out to cast ballots has increased
significantly over the last 40 years, particularly since 1982, and noted that [i]n some
circumstances, minorities register to vote and cast ballots at levels that surpass those of white
voters. H. R. Rep. No. 109478, p. 12 (2006). That Report also explained that there have been
significant increases in the number of African-Americans serving in elected offices; more
specifically, there has been approximately a 1,000 percent increase since 1965 in the number of
African-American elected officials in the six States originally covered by the Voting Rights Act.
Id., at 18 (SHELBY COUNTY, ALABAMA v. HOLDER, ATTORNEY GENERAL, ET AL.
Opinion of the Court 13-14).

Regarding the Formula: By 2009, however, we concluded that the coverage formula
raise[d] serious constitutional questions. Northwest Austin, 557 U. S., at 204. As we explained,
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!"#$%&'( *+&,-. 67
a statutes current burdens must be justified by current needs, and any disparate geographic
coverage must be sufficiently related to the problem that it targets. Id., at 203. The coverage
formula met that test in 1965, but no longer does so.
Coverage today is based on decades-old data and eradicated practices. The formula
captures States by reference to literacy tests and low voter registration and turnout in the 1960s
and early 1970s. But such tests have been banned nationwide for over 40 years. 6, 84 Stat. 315;
102, 89 Stat. 400. And voter registration and turnout numbers in the covered States have risen
dramatically in the years since. H. R. Rep. No. 109478, at 12. Racial disparity in those numbers
was compelling evidence justifying the preclearance remedy and the coverage formula. See, e.g.,
Katzenbach, supra, at 313, 329330. There is no longer such a disparity.
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. 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 (SHELBY COUNTY,
ALABAMA v. HOLDER, ATTORNEY GENERAL, ET AL. Opinion of the Court 17-18).

Final Conclusions of the Court: Striking down an Act of Congress is the gravest and
most delicate duty that this Court is called on to perform. Blodgett v. Holden, 275 U. S. 142,
148 (1927) (Holmes, J., concurring). We do not do so lightly. That is why, in 2009, we took care
to avoid ruling on the constitutionality of the Voting Rights Act when asked to do so, and instead
resolved the case then before us on statutory grounds. But in issuing that decision, we expressed
our broader concerns about the constitutionality of the Act. Congress could have updated the
coverage formula at that time, but did not do so. Its failure to act leaves us today with no choice
but to declare 4(b) unconstitutional. The formula in that section can no longer be used as a basis
for subjecting jurisdictions to preclearance.
Our decision in no way affects the permanent, nation- wide ban on racial discrimination
in voting found in 2. We issue no holding on 5 itself, only on the coverage formula. Congress
may draft another formula based on current conditions. Such a formula is an initial prerequisite
to a determination that exceptional conditions still exist justifying such an extraordinary
departure from the traditional course of relations between the States and the Federal
Government. Presley, 502 U. S., at 500501. Our country has changed, and while any racial
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!"#$%&'( *+&,-. 67
discrimination in voting is too much, Congress must ensure that the legislation it passes to
remedy that problem speaks to current conditions. The judgment of the Court of Appeals is
reversed (SHELBY COUNTY, ALABAMA v. HOLDER, ATTORNEY GENERAL, ET AL.
Opinion of the Court 24).

Excerpts from Justice Ginsbergs Dissenting Opinion

Regarding Reauthorization Meeting the Rational-Basis Test: For three reasons, legislation
reauthorizing an existing statute is especially likely to satisfy the minimal requirements of the
rational-basis test. First, when reauthorization is at issue, Congress has already assembled a
legislative record justifying the initial legislation. Congress is en titled to consider that
preexisting record as well as the record before it at the time of the vote on reauthorization. This
is especially true where, as here, the Court has repeatedly affirmed the statutes constitutionality
and Congress has adhered to the very model the Court has upheld. See id., at 174 (The
appellants are asking us to do nothing less than overrule our decision in South Carolina v.
Katzenbach . . . , in which we upheld the constitutionality of the Act.); Lopez v. Monterey
County, 525 U. S. 266, 283 (1999) (similar).
Second, the very fact that reauthorization is necessary arises because Congress has built a
temporal limitation into the Act. It has pledged to review, after a span of years (first 15, then 25)
and in light of contemporary evidence, the continued need for the VRA. Cf. Grutter v. Bollinger,
539 U. S. 306, 343 (2003) (anticipating, but not guaranteeing, that, in 25 years, the use of racial
preferences [in higher education] will no longer be necessary).
Third, a reviewing court should expect the record sup porting reauthorization to be less
stark than the record originally made. Demand for a record of violations equivalent to the one
earlier made would expose Congress to a catch-22. If the statute was working, there would be
less evidence of discrimination, so opponents might argue that Congress should not be allowed
to renew the statute. In contrast, if the statute was not working, there would be plenty of evidence
of discrimination, but scant reason to renew a failed regulatory regime. See Persily 193194.
This is not to suggest that congressional power in this area is limitless. It is this Courts
responsibility to ensure that Congress has used appropriate means. The question meet for judicial
review is whether the chosen means are adapted to carry out the objects the amendments have
!"#"$%& (#)*$+%,-*# ."/$0%$1 2345


!"#$%&'( *+&,-. 67
in view. Ex parte Virginia, 100 U. S. 339, 346 (1880). The Courts role, then, is not to substitute
its judgment for that of Congress, but to determine whether the legislative record sufficed to
show that Congress could rationally have determined that [its chosen] provisions were appro-
priate methods. City of Rome, 446 U. S., at 176177.
In summary, the Constitution vests broad power in Congress to protect the right to vote,
and in particular to combat racial discrimination in voting. This Court has repeatedly reaffirmed
Congress prerogative to use any rational means in exercise of its power in this area. And both
precedent and logic dictate that the rational-means test should be easier to satisfy, and the burden
on the statutes challenger should be higher, when what is at issue is the reauthorization of a
remedy that the Court has previously affirmed, and that Congress found, from con temporary
evidence, to be working to advance the legislatures legitimate objective (SHELBY COUNTY,
ALABAMA v. HOLDER, ATTORNEY GENERAL, ET AL. GINSBURG, J., dissenting 11-12).

Regarding the Courts Ruling on the Coverage Formula: The Court holds 4(b) invalid on
the ground that it is irrational to base coverage on the use of voting tests 40 years ago, when
such tests have been illegal since that time. Ante, at 23. But the Court disregards what Congress
set about to do in enacting the VRA. That extraordinary legislation scarcely stopped at the
particular tests and devices that happened to exist in 1965. The grand aim of the Act is to secure
to all in our polity equal citizen ship stature, a voice in our democracy undiluted by race. As the
record for the 2006 reauthorization makes abundantly clear, second-generation barriers to
minority voting rights have emerged in the covered jurisdictions as at tempted substitutes for the
first-generation barriers that originally triggered preclearance in those jurisdictions. See supra, at
56, 8, 1517.
The sad irony of todays decision lies in its utter failure to grasp why the VRA has
proven effective. The Court appears to believe that the VRAs success in eliminating the specific
devices extant in 1965 means that preclearance is no longer needed. Ante, at 2122, 2324. With
that belief, and the argument derived from it, history repeats itself. The same assumptionthat
the problem could be solved when particular methods of voting discrimination are identified and
eliminatedwas indulged and proved wrong repeatedly prior to the VRAs enactment. Unlike
prior statutes, which singled out particular tests or devices, the VRA is grounded in Congress
recognition of the variety and persistence of measures designed to impair minority voting
!"#"$%& (#)*$+%,-*# ."/$0%$1 2345


!"#$%&'( *+&,-. 67
rights. Katzenbach, 383 U. S., at 311; supra, at 2. In truth, the evolution of voting discrimination
into more subtle second-generation barriers is powerful evidence that a remedy as effective as
preclearance remains vital to protect minority voting rights and prevent backsliding.
Beyond question, the VRA is no ordinary legislation. 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. For a half century, a concerted effort has been
made to end racial discrimination in voting. Thanks to the Voting Rights Act, progress once the
subject of a dream has been achieved and continues to be made.
The record supporting the 2006 reauthorization of the VRA is also extraordinary. It was
described by the Chairman of the House Judiciary Committee as one of the most extensive
considerations of any piece of legislation that the United States Congress has dealt with in the
2712 years he had served in the House. 152 Cong. Rec. H5143 (July 13, 2006) (statement of
Rep. Sensenbrenner).
After exhaustive evidence-gathering and deliberative process, Congress reauthorized the
VRA, including the coverage provision, with overwhelming bipartisan support. It was the
judgment of Congress that 40 years has not been a sufficient amount of time to eliminate the
vestiges of discrimination following nearly 100 years of disregard for the dictates of the 15th
amendment and to ensure that the right of all citizens to vote is protected as guaranteed by the
Constitution. 2006 Reauthorization 2(b)(7), 120 Stat. 577. That determination of the body
empowered to enforce the Civil War Amendments by appropriate legislation merits this
Courts utmost respect. In my judgment, the Court errs egregiously by overriding Congress
decision (SHELBY COUNTY, ALABAMA v. HOLDER, ATTORNEY GENERAL, ET
AL. GINSBURG, J., dissenting 35-37).

Summaries for Cases used in Shelby Case

South Carolina v. Katzenbach (S.Ct. 1966)
Facts: The Voting Rights Act of 1965 contained provisions attempting to prevent racial
discrimination in the voting process by offering remedies against such unjust practices as
requiring literacy or good moral character in order to vote.
!"#"$%& (#)*$+%,-*# ."/$0%$1 2345


!"#$%&'( *+&,-. 53
Issue: May Congress pass laws to carry out the provisions of constitutional amendments or to
exercise congressional powers?
Rule: (Warren, C.J.) Congress may constitutionally enact statutes that validly enforce a
constitutional amendment or that are necessary and proper for carrying out enumerated or
implied powers.
Dissent: (Black, J.) It is doubtful that this suit presents a justiciable case or controversy. In
addition, at least one of the Acts provisions unjustly blurs the constitutional distinction between
state and federal power by requiring federal approval of certain states laws and constitutional
amendments (Case Overviews).

Northwest Austin Municipal Util. Dist. No. One v. Holder
Facts of the Case: Northwest Austin Municipal Utility District Number One ("Northwest")
sought a declaratory judgment exempting it from Section 5 of the Voting Rights Act of 1965 and
alternatively argued that Section 5 was unconstitutional. Section 5 prohibits "covered
jurisdictions" states and political subdivisions with histories of racial discrimination in voting
from changing their voting procedures without permission from either the Attorney General or a
three-judge panel of the U.S. District Court for the District of Columbia.
The district court held that Northwest was not eligible for exemption from Section 5 reasoning
that it did not qualify as a "political subdivision" as defined in the Voting Rights Act. Moreover,
the court rejected Northwest's argument that Congress' 2006 extension of Section 5 for another
25 years made the provision unconstitutional. Rather, the court held that given the
documentation of contemporary racial discrimination in "covered jurisdictions", Congress acted
rationally in extending the provision, rendering Section 5 constitutional.

Questions
1) Does Section 4(a) of the Voting Rights Act ("VRA") permit any "political subunit" of a
"covered state" from seeking exemption from Section 5 of the VRA when it permits "political
subdivisions" within "covered states" from seeking such exemptions?
2) Was the 2006 extension of Section 5 of the Voting Rights Act a valid exercise of
congressional power when the Congressional Record indicated no persistent patter of "covered
states" attempting to evade the enforcement of the VRA? (NORTHWEST AUSTIN
!"#"$%& (#)*$+%,-*# ."/$0%$1 2345


!"#$%&'( *+&,-. 54
MUNICIPAL v. HOLDER)
Conclusion:
Decision: 9 votes for Northwest Austin Municipal, 0 vote(s) against
Legal provision: Voting Rights Act
Yes. Not answered. The Supreme Court held that the VRA permits all political subdivisions,
including the district, to seek to bailout from the preclearance requirements of the VRA. With
Chief Justice John G. Roberts writing for the majority and joined by Justices John Paul Stevens,
Antonin G. Scalia, Anthony M. Kennedy, David H. Souter, Ruth Bader Ginsburg, Stephen G.
Breyer, and Samuel A. Alito, and in part by Justice Clarence Thomas, the Court reasoned that the
language of the VRA did not constrict the availability of a bailout for political subunits like
Northwest Municipal. Moreover, the Court reasoned that considering that only 17 of 12,000
jurisdictions covered by the VRA had bailed out suggested that Congress had never intended for
it to be so difficult to bailout.
Justice Thomas wrote separately, concurring in the judgment in part and dissenting in part. He
criticized the Court for not addressing the constitutionality of Section 5 of the VRA. He argued
that he thought it did in fact exceed Congress' power to enforce the 15th Amendment, rendering
it unconstitutional( NORTHWEST AUSTIN MUNICIPAL v. HOLDER).


!"#"$%& (#)*$+%,-*# ."/$0%$1 2345


!"#$%&'( *+&,-. 52
Works Cited

"Case Overviews - South Carolina v. Katzenbach (S.Ct. 1966)." Casebriefs. Web.
<http://www.casebriefs.com/blog/law/constitutional-law/outline-constitutional-law-
law/separation-of-powers-outline-constitutional-law-law/case-overviews-23/>.
NORTHWEST AUSTIN MUNICIPAL v. HOLDER. The Oyez Project at IIT Chicago-Kent
College of Law. 07 January 2014. <http://www.oyez.org/cases/2000-
2009/2008/2008_08_322>.
SHELBY COUNTY, ALABAMA v. HOLDER, ATTORNEY GENERAL, ET AL.
GINSBURG, J., dissenting. Supreme Court of the United States. 25 June 2013. Web.
<http://www.supremecourt.gov/opinions/12pdf/12-96_6k47.pdf>.
SHELBY COUNTY, ALABAMA v. HOLDER, ATTORNEY GENERAL, ET AL. Opinion of
the Court. Supreme Court of the United States. 25 June 2013. Web.
<http://www.supremecourt.gov/opinions/12pdf/12-96_6k47.pdf>.
SHELBY COUNTY, ALABAMA v. HOLDER, ATTORNEY GENERAL, ET AL. Syllabus.
Supreme Court of the United States. 25 June 2013. Web.
<http://www.supremecourt.gov/opinions/12pdf/12-96_6k47.pdf>.
"Transcript of Voting Rights Act (1965)." Our Documents - United States Federal
Government.The Avalon Project at Yale University, Web.
<http://www.ourdocuments.gov/doc.php?flash=true>.
Frameworks
Champion Briefs
February 2013
Public Forum Brief
!"#$%&'"() !%+",#"- ./01


!"#$%&'( *+&,-. 11
!"#$%&'"()

2334"$#546%

!"#$%&'"(7 The pioactive buiuen of this uebate falls upon the negative to oveituin, oi
uispiove, the Supieme Couit's iuling. This is because the uecision has alieauy been
ienueieu anu thus theie is a gieatei buiuen of pioof to show that the uecision was
ienueieu incoiiectly. If at the enu of the iounu, the negative team has not pioveu beyonu a
ieasonable uoubt that Section 4 is unconstitutional, you shoulu vote affiimative anu uefault
to the status quo iuling.

89%: 5' ,)%7 This fiamewoik woiks at the top of any affiimative case because it shows
that the Negative team has a gieatei buiuen within the iounu. This also loweis the
Affiimative buiuen in the iounu because it shows that if all aiguments in the iounu aie a
wash then the juuge shoulu uefault to the Affiimative. We iecommenu that you use this
fiamewoik in conjunction with aiguments that follow the Couit's ieasoning foi ueciuing
unconstitutionality, so that youi case lies as close to the status quo as possible. 0se the
inheient uouble negative within the iesolution, the fact that the Affiimative has to uefenu a
negative iuling, to fuithei piove that the buiuen to oveituin the uecision is stiongei than
to ieaffiim it.

;'& 5' 2:)&%"7 Fiist, aigue that the Affiimative always has the pioactive buiuen in Public
Foium Bebate anu that the Negative has the sole buiuen of uispioving the Affiimative.
Seconu, aigue that the buiuen of pioving something unconstitutional is gieatei than to
piove it constitutional, so the pioactive buiuen lies with the Affiimative in the iounu.
Thiiu, this fiamewoik ieally only comes into play in the case of a wash oi a close uebate, so
ensuie that you can cast uoubt anu auequately iesponu to the Affiimative position. Fouith,
if they uo not aigue that unconstitutionality of the section baseu on the couit's iuling, then
foice them to uefenu that position because they aie meiely "ieaffiiming" the uecision, anu
any othei aiguments about unconstitutionality woulu be non-topical.
!"#$%&'"() !%+",#"- ./01


!"#$%&'( *+&,-. 12
!"#$%&'"(3 The Supieme Couit is the sole inteipietei of the Constitution anu thus it must
seek to piotect the iights of all inuiviuuals within society, not just the majoiity of people.
This means that the buiuen of pioof falls on the Negative to piove that this section is
constitutional anu uoesn't haim the iights oi have the possibility of haiming citizen's iights
guaianteeu unuei the Constitution because the possibility of infiinging upon iights oi
clauses of the Constitution woulu be enough to ueem it unconstitutional.

45%6 7' 8)%3 This fiamewoik woiks with any Affiimative, but uo not use it in conjunction
with the fiist fiamewoik in this section. It allows you to have a lowei buiuen to win the
iounu baseu upon the iesponsibilities of the Supieme Couit. This fiamewoik woiks well
with aiguments iegaiuing pieceuent anu the iole of the Supieme Couit within society
combineu with aiguments about the Section haiming iights.

9'& 7' :6)&%"3 Fiist, the uecision calculus of the Supieme Couit is to meiely inteipiet the
law in ielation to the woius of the Constitution. This means that theie is a gieatei buiuen
of pioof to show that the section !"## infiinge upon constitutional iights. The Supieme
Couit must look at the lettei of the law anu use a stiict inteipietation of the Constitution in
oiuei to piove that something tiuly violates it. Seconu, this fiamewoik may apply to when
the Supieme Couit is actually making the uecision oi if the topic was "Resolveu: the
Supieme Couit shoulu ueem Section 4 of the voting Rights Act unconstitutional," but
because the woiuing of the iesolution implies that the Affiimative has to "ieaffiim" the
uecision not uefenu it to a minimal stanuaiu. This is because if they uo not "ieaffiim" the
uecision in its entiiety then they have not fulfilleu the question of the iesolution.
!"#$%&'"() !%+",#"- ./01


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!"#$%&'( *+&,-. 12
!"#$%&'"(3 In oiuei foi the Affiimative to win the iounu anu ieaffiim the uecision of the
Supieme Couit, they have the pioactive buiuen to piove that Section 4 is unconstitutional.
This is because the Supieme Couit neeus stiong ieason anu eviuence in oiuei to iule
something unconstitutional. Thus, if theie is no offense on eithei siue of the iounu,
meaning that neithei team can piove the constitutionality of the section, then you shoulu
vote negative because the Affiimative uiu not meet the high buiuen of pioof that befalls the
Supieme Couit to ueem something unconstitutional.

45%6 7' ,)%3 This fiamewoik woiks at the top of any Negative case because it meiely
uiminishes youi buiuen in the iounu anu establishes that the affiimative has a stiongei
buiuen of pioof because the Supieme Couit neeus stiong eviuence, not potentialities of
haim, to iule something unconstitutional. Noieovei, this helps any case because if at the
enu of the iounu, theie is no affiimative ieason to vote foi eithei team then it foices the
juuge to uefault to the negative.

8'& 7' 96)&%"3 Fiist, you shoulu make the aigument that because you aie ieaffiiming the
valiuity of the Supieme Couit's uecision anu because you aien't a piofessional lawyei who
is goou enough to speak in fiont of the Supieme Couit, that you shoulun't be helu to the
same stanuaiu. Seconu, you shoulu aigue that Supieme Couit only neeus a ieasonable
avenue to ueteimine unconstitutionality because they must look out anu piotect the iights
of all inuiviuuals, not just the majoiity of inuiviuuals within oui society.
Pro Arguments with
Con Responses
Champion Briefs
February 2013
Public Forum Brief
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!;< = >#'"+ ;'0?*& 3#00#@). !"?#" >#'"+ !")1).)*+

Argument: The Supreme Courts role is to establish the permissibility and constitutionality of
laws. One of the methods by which they do this is through following prior court precedent.

Warrant: Throughout the Supreme Courts history, justices have repeatedly claimed that court
precedent is the manner in which future court decisions are reached. The judiciary can only
fulfill its role in a consistent manner if it refers to previous court decisions.

Cross, Frank B., and James F. Spriggs. "Citations in the US Supreme Court: An
Empirical Study of Their Use and Significance." University of Illinois Law Review
(2010): 489. < http://illinoislawreview.org/article/citations-in-the-us-supreme-court-an-
empirical-study-of-their-use-and-significance/>.

Of all citations, those to prior opinions are the most common,
demonstrating the Courts respect for stare decisis. The doctrine of stare
decisis is said to reflect the fundamental values of the legal process.
Alexander Hamilton declared that it was indispensable that [judges] should
be bound down by strict rules and precedents in order to avoid an
arbitrary discretion in the courts. The Court has declared that [a]dherence to
precedent, is, in the usual cases, a cardinal and guiding principle of
adjudication. In the plurality opinion declining to overrule Roe v. Wade,
Justices OConnor, Kennedy and Souter declared that respect for precedent
was the very concept of the rule of law.

Analysis: This evidence is key for establishing why stare decisis is an important element of the
decision-making process for the Supreme Court. Teams would do well to use this evidence
before trying to cite previous cases as the basis of Shelby County because many con teams will
want to limit the debate simply to the realm of amendments, when in fact you should be
examining the Constitutional role of the Supreme Court. Its far better to have established why
!"# %"&'()*+, -*. /0#12, 3)4"'-"5 6789


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precedence is important to constitutionality, than try to make these arguments without having
established why precedence is so critical.

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Warrant: Laws are consistently rooted in the history of laws that have been passed that have
similar background. The reason laws do this is so the Court can look back at how the
Constitution has been interpreted in the past and then prevent themselves from straying too far
from Court interpretations of the Constitution.

Fowler, James H., and Sangick Jeon. "The authority of Supreme Court precedent." Social
Networks 30.1 (2008): 16-30.
<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1008032>.

Most judges and scholars would suggest that the law develops while clinging to
history. History, in this context, is precedentthe decisions made by earlier courts
in similar cases. Precedent plays a central role in the judiciary by providing
information to judges and other decision makers about the relevance or weight of
particular facts for a legal issue and by de!ning legal consequences or tests that
pertain to those facts. Not all court opinions are equally positioned to serve as a
precedent for a given dispute, and the norm of respecting stare decisis instructs judges to
rely on the most legally relevant and authoritative cases applicable to a given legal
question. In this sense, the legal relevance of a case (to which we refer synonymously
as case importance or case centrality)the degree to which the information in a
given case remains germane for deciding contemporary legal disputeslies at the
heart of law and legal development.

Analysis: This evidence extends upon the first evidence, clearly explaining why judicial
precedence is so critical to the Supreme Courts decision making process. Supreme Court
justices look back at cases that deal with similar issues as theirs and then take their cues from
those cases. This is critical for Pro teams to establish clearly as Supreme Court precedent can
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sometimes be a nebulous issue that teams struggle to clearly define. Pro needs to be the one to
clearly establish the importance.

Warrant: Northwest Austin distinctly upheld the notion that the Voting Rights Act preclearance
formula must be justified by current needs and current instances of discrimination. It was a
previous Supreme Court and provided much of the foundation for the justification of Shelby
County.

Northwest Austin v. Holder. 557 U.S. 193. Supreme Court of the United States. 2009.
Legal Information Institute. <http://www.law.cornell.edu/supct/html/08-
322.ZS.html>. 3 Jan. 2014.

The historic accomplishments of the Voting Rights Act are undeniable, but the Act
now raises serious constitutional concerns. The preclearance requirement represents
an intrusion into areas of state and local responsibility that is otherwise unfamiliar
to our federal system. Some of the conditions that the Court relied upon in upholding
this statutory scheme in South Carolina v. Katzenbach, and City of Rome v. United
States, have unquestionably improved. Those improvements are no doubt due in
significant part to the Voting Rights Act itself, and stand as a monument to its success,
but the Act imposes current burdens and must be justified by current needs. The
Act also differentiates between the States in ways that may no longer be justified.

Analysis: Northwest Austin is the key Supreme Court case for teams to cite when dealing with
Court precedent for this topic. It is essential that pro teams evaluate the ideas Northwest Austin
put forth, specifically that intrusion into the state process of running elections must be justified
by current conditions. Northwest Austin is critical for the authorship of Shelby County because it
addressed the validity of the Voting Right Acts unequal application.

Warrant: The reason Northwest Austin is so critical to Shelby County is because the case
established the Constitutional interpretation of equal sovereignty that the VRA so egregiously
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violated. This was the precedent used by the majority decision in the court ruling invalidating
Section 4.

Harris, Jeffrey. "The Court Meant What it Said in Northwest Austin." SCOTUSblog.
Bloomberg Law, 25 Jun 2013. <http://www.scotusblog.com/2013/06/the-court-
meant-what-it-said-in-northwest-austin/>. 4 Jan 2014.

Four years ago, in Northwest Austin Municipal Utility District No. One v. Holder, the
Court held that Section 5 of the Voting Rights Act raises serious constitutional
questions. The Acts preclearance remedy in which covered jurisdictions must
affirmatively justify their duly enacted legislation before federal officials imposed
substantial federalism costs and was justified at the time of enactment only by the
exceptional conditions then prevailing in covered jurisdictions. The Acts coverage
formula was based on data that is now more than 35 years old, and there was
considerable evidence that it fails to account for current political
conditions. Although the Court ultimately decided the case on narrower statutory
grounds, it did not mince words in stating that Section 5 was in peril unless it was
updated to reflect the fact that we are now a very different Nation than we were in
1965. It is now clear that the Court meant what it said. In todays decision in Shelby
County, the Court cited Northwest Austin more than thirty times, and Sections I, II,
and III.A of the Courts decision are strikingly similar to Sections I and II of
Northwest Austin. Indeed, there are only about five pages of new material in the
majority opinion, which respond to specific arguments raised by the government
and the dissent.

Analysis: This evidence is key for showing just how critical Northwest Austin was in deciding
Shelby County. The Constitutional principle and precedent remained the same between the two
cases, which is critical when considering the validity of Shelby County. Be careful to make the
link between constitutionality and the role of the Supreme Court. The Supreme Courts role is to
determine constitutionality, and one of the ways they evaluate the constitutionality of laws is
looking at how previous laws have interpreted the Constitution.
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%*,@)"A "#$%& '%()(*(+& ,-. -)&$-//0 (.&-1/2.,(* &,-& "#+3%(.. ,-. *2.)%(&2#+ 4,(+
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Warrant: A variety of Supreme Court cases in the past have clearly upheld Congresss ability to
make its own decisions when passing election laws. The Court has made a variety of allowances
to Congress that permit Congress to pass a variety of voting laws, especially the regulation of
voting laws in the states.

Katz, Ellen. "How Big is Shelby County?." SCOTUSblog. Bloomberg Law, 25 Jun 2013.
<http://www.scotusblog.com/2013/06/how-big-is-shelby-county/>. 4 Jan 2014.

Congress did assemble a lengthy record with evidence supporting its own judgment
that the VRAs preclearance requirement is necessary and important in covered
jurisdictions. Shelby Countys dismissal of that legislative judgment markedly
breaks from precedent upholding congressional discretion in this realm. The
decision significantly diminishes Congresss ability to craft future remedies for racial
discrimination in voting and beyond. Indeed, after today, an administrative agency acting
within the sphere of its expertise enjoys more discretion than does Congress when acting
in the realm in which its power was once viewed to be at its apogee. At oral argument
last winter, Justice Kagan bristled at the notion that the Court, rather than
Congress, was the proper institution to decide when remedial action in this realm
was needed.

Analysis: This is critical for rebutting claims by Pro about Constitutionality and precedent.
Precedent actually was not in favor of passing Shelby County, despite Chief Justice Roberts
liberal citation of Northwest Austin. That case actually very clearly is in favor of VRA and only
calls into question Section 5. Con teams need to know very well the Supreme Court cases that
led up to Shelby County and there really is very little evidence to support the Courts interference
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with Congresss ability to regulate election law, given there ability to regulate election law is
actually written in the Constitution. Significantly, the case South Carolina v. Katzenbach argued
that Congress actually did have power to regulate election law, and as such was really the only
court precedent before Shelby County.

Answer: The decision in Shelby County defies Court precedent and represents an activist Court
who is making a judicial power grab.

Warrant: The Court has traditionally been the weakest institution among the three. Its powers
are ill-defined in the Constitution, but it is generally agreed that the Court does not have a great
deal of power to regulate Congress. Really, its only ability is judicial review which was not even
established in the Constitution, but instead in the case of Marbury v Madison. Because of this, it
is unlikely that there was actually sufficient precedent to support the majority in Shelby County.

Greenhouse, Linda. "Linda Greenhouse on the Roberts Project." Civil Liberties Law
Review. Harvard Civil Rights, 10 Oct 2013.
<http://harvardcrcl.org/2013/10/11/linda-greenhouse-on-the-roberts-
project/>. 4 Jan 2014.

Regarding race, Ms. Greenhouse believes that the Roberts Court is trying to get the
government out of the business of race. For example, she notes that Shelby
County is one of the most activist and astonishing decisions of the Court
because they wretched out the meaning of the 15
th
Amendment and ignored
precedent. She frames Shelby County as an enormous judicial power grab, which
was ironic because the Majority in Shelby County was in the minority in Windsor saying
that the Court should defer to Congress. In Fisher, she said that there was no circuit split
and that there were a number of problems with the case, including the issue of
standing. She considers Fisher to be an overreach by the Court 4 justices granted cert
on the assumption that they could get Kennedy, but they couldnt get him all the
way. She noted that in both Fisher and Shelby County that there was very little legal
analysis and the opinions boil down too simply that the Court could get 5 justices.
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Analysis: Precedent is distinctly confusing. Sometimes the Court follows precedent, sometimes
it doesnt. The vast majority of the time, the Court defers to precedent in a practice known as
stare decisis. This deferral to precedent is respected in the legal community and it is the reason
overturning of past decisions made by the Court is especially surprising. The judiciary not
following precedent is considered an activist court, and here this evidence is key in showing that
the Roberts court took a particularly activist approach with respect to precedent, namely in their
ignoring of precedent.

Answer: Justice Ginsberg argues that the majority completely disregarded precedent.

Warrant: Justice Ginsberg cites post-Civil War amendments that clearly establish the role of the
judiciary in regards to Congresss ability to regulate election law, and views the decision to
overturn Shelby County as not being supported by any prior Court decisions.

Cohen, Andrew. "On Voting Rights, a Decision as Lamentable as Plessy or Dredd Scott."
Atlantic. 25 Jun 2013. <http://www.theatlantic.com/national/archive/2013/06/on-
voting-rights-a-decision-as-lamentable-as-plessy-or-dred-scott/276455/>. 4 Jan.
2014.

In a passionate dissent, Justice Ruth Bader Ginsburg immediately homed in on the
extraordinarily aggressive nature of what the Court has just done. "The question
this case presents," she wrote, "is who decides whether, as currently operative,
Section 5 remains justifiable, this Court, or a Congress charged with the obligation
to enforce the post-Civil War amendments 'by appropriate legislation.'" Until
today, Justice Ginsburg wrote, the Court "had accorded Congress the full measure
of respect its judgments should garner" in implementing that anti-discriminatory
intent of the Fourteenth and Fifteenth Amendments. Until today. "The Court,"
Justice Ginsburg wrote, "makes no genuine attempt to engage with the massive
legislative record that Congress assembled. Instead, it relies on increases in voter
registration and turnout as if that were the whole story."
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Analysis: Ginsberg clearly argues that the Court completely ignored previous precedent and thus
had not real justification for passing Shelby County. This is a very powerful piece of evidence,
because it shows that one of the greatest legal scholars in the United States, and one of the most
well-respected Supreme Court justices, disagrees with the precedent used to justify overturning
Section 4. It is imperative that Con teams explain clearly how Shelby County violated precedent,
and this from Justice Ginsberg helps teams do that in a concise manner.


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Argument: It is not constitutional to discriminate against states according to the equal sovereign
intentions of the Constitution.

Warrant: According to equal sovereignty, states can only be treated differently if that different
treatment is justified by existing differences. These existing differences were never proven to
the Supreme Court to have been existent.

Wood, Jonathan. "Shelby County: Are All States Created Equal?" Pacific Legal
Foundation Liberty Blog. Pacific Legal Foundation, 1 July 2013. Web. 06 Jan.
2014. <http://blog.pacificlegal.org/2013/shelby-county-are-all-states-created-
equal/>.

"The Voting Rights Act did not always violate the principle of equal sovereignty.
States were originally treated differently because of then existing distinctions;
covered states had lower minority voter participation and had recently used
discriminatory election procedures. But that was 40 years ago. Today the singling out
of these states could not be justified by existing differences. And for that reason, the
principle of equal sovereignty was violated."

Warrant: Although the existence of equal sovereignty may seem to burden any of Congress's
action, it is not as much of a burden because differences exist among the states which will
typically justify different treatment. On the other hand, equal sovereignty protects states from
abuse from the federal government.

Wood, Jonathan. "Shelby County: Are All States Created Equal?" Pacific Legal
Foundation Liberty Blog. Pacific Legal Foundation, 1 July 2013. Web. 06 Jan.
2014. <http://blog.pacificlegal.org/2013/shelby-county-are-all-states-created-
equal/>.
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"While the principle of equal sovereignty may be an important new check on
Congress power, the dissent overstates how much of a burden it will be. It does not
mean that the federal government cannot adopt neutral regulations that have
disparate impacts on states with different conditions, provided that those impacts
are attributable to these conditions. A law that prohibited grazing on all federal
lands, for instance, would be valid even though the effects of the law would
disproportionately fall on the western states. Instead, the principle means that
Congress can only pass laws if it is willing to apply the same standards to all of the
states, and not just politically weaker ones. This principle also promotes a more robust
federalism by ensuring that on policy issues that require experimentation, the states are
able to explore solutions according to their own lights."

Warrant: States have the power to regulate elections and the principle of equal sovereignty was
created in the Northwest Austin case. Coupled together, it is clear that the VRA infringes upon
the right of states, while also discrimination among states.

Shelby County, Alabama V. Holder, Attorney General, Et Al. Supreme Court Of The
United States. 25 June 2013. Supreme Court Opinions. Web. 6 Jan. 2014.
<http://www.supremecourt.gov/opinions/12pdf/12-96_6k47.pdf>.

"Indeed, the Tenth Amendment re- serves to the States all powers not specifically
granted to the Federal Government, including the power to regulate elections.
Gregory v. Ashcroft, 501 U. S. 452, 461462. There is also a 'fundamental prin- ciple
of equal sovereignty' among the States, which is highly perti- nent in assessing
disparate treatment of States. Northwest Austin, supra, at 203. The Voting Rights Act
sharply departs from these basic principles. It requires States to beseech the Federal
Government for permission to implement laws that they would otherwise have the
right to enact and execute on their own. And despite the tradition of equal sover-
eignty, the Act applies to only nine States (and additional counties). That is why, in
1966, this Court described the Act as stringent and potent, Katzenbach, 383 U.
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!"#$%&'( *+&,-. :8
S., at 308, 315, 337."

Analysis: Make clear that Congress ought to look to precedent to interpret the resolution. The
principle of equal sovereignty exists accordingly to the Northwest Austin case. Moreover, this
unjustified discrimination among states should be deemed unconstitutional as a result. That
being said, this ruling does not create too much of a burden on Congress (although that this
"burden" the negative will discuss has nothing to do with the constitutionality of Section 4), but
rather protects the states.
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Answer: States are different in the case of discriminatory actions involving election rules.

Warrant: Equal sovereignty states that states can be treated differently if justified by the
context. Congress should not ignore the history of violations made by certain states that limited
the rights of voters.

Fishkin, Joseph. "The Dignity of the South." The Yale Law Journal 123 (2013): 175-
95.The Yale Law Journal Online. Yale University, 8 June 2013. Web. 03 Jan.
2014. <http://yalelawjournal.org/the-yale-law-journal-pocket-part/election-
law/the-dignity-of-the-south/>.

"This particular way of paring back Congresss Reconstruction Power is all the more
pointed because, in fact, federal law routinely treats one state differently from
another in ways large and small, because states differ in their circumstances in
innumerable respects. Compared to its neighbors, one state might have more
military bases, more native Alaskans, more citizens without health insurance, or a
more congenial mountain redoubt for the permanent storage of the nations
radioactive waste. An equal dignity of the states principle would presumably
continue to allow such differences in treatment where circumstances warrant.
Therefore, to apply an equal dignity of the states principle in Shelby County to strike
down section 5 would be to assert that the one salient difference in circumstances
among the states that the Constitution requires Congress to ignore is the fact that
certain states recently spent most of a century openly defying the Reconstruction
Amendments by denying their minority citizens the right to vote."

Answer: The principle of equal sovereignty doesn't exist.

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Warrant: The court has ruled against this "equal sovereignty" idea for years. The
Reconstruction opponents argued that the federal government committed violations of state
sovereignty but this was continuously ignored by the courts.

Fishkin, Joseph. "The Dignity of the South." The Yale Law Journal 123 (2013): 175-
95.The Yale Law Journal Online. Yale University, 8 June 2013. Web. 03 Jan.
2014. <http://yalelawjournal.org/the-yale-law-journal-pocket-part/election-
law/the-dignity-of-the-south/>.

"The simplest solution is to uphold section 5 based on the record of post-1982
violations explored in detail by the court below, and to continue to allow
jurisdictions to bail out of section 5 coverage if and when they wish to show that the
past is dead. However, regardless of the outcome it reaches in Shelby County, the
Court should find a way to reason about the case that avoids inscribing into the
Constitution a principle of the equality, dignity, or 'equal dignity' of the states. In
post-1865 America, the roots of such a principle are to be found in the losing arguments
of Reconstructions opponents. They saw outrageous regional insult and indignity and
outrageous violations of state sovereignty in the federal statutes that began the work the
VRA continuesand, indeed, in the very Reconstruction Amendments the Court is now
interpreting, which they bitterly opposed."

Warrant: Equal sovereignty does not exist between the states. Some states had more power
than others by the definition of slaves that gave states more votes than what they deserved by the
count of their voters.

Stevens, John P. "The Court & the Right to Vote: A Dissent." The New York Review of
Books. NYREV, 15 Aug. 2013. Web. 06 Jan. 2014.
<http://www.nybooks.com/articles/archives/2013/aug/15/the-court-right-to-vote-
dissent/>.

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"The Courts heavy reliance on the importance of a 'fundamental principle of equal
sovereignty among the States,' while supported by language in an earlier opinion by
Chief Justice Roberts, ignored the fact that Article I, Section 2 of the Constitution
created a serious inequality among the states. That clause counted 'three fifths' of a
states slaves for the purpose of measuring the size of its congressional delegation
and its representation in the Electoral College. That provision was offensive because
it treated African-Americans as though each of them was equal to only three fifths
of a white person, but it was even more offensive because it increased the power of
the southern states by counting three fifths of their slaves even though those slaves
were not allowed to vote. The northern states would have been politically better off if
the slave population had been simply omitted from the number used to measure the
voting power of the slave states. The fact that this 'slave bonus' created a basic inequality
between the slave states and the free states has often been overlooked, as has its far-
reaching impact. In 1800, for example, that bonus determined the outcome of the
presidential election since it then gave the southern states an extra nine or ten votes in the
Electoral College, and Thomas Jefferson prevailed over John Adams by only eight
electoral votes. Because of the slave bonus, Adams served only one term as president.
The slave bonus unfairly enhanced the power of the southern states in Congress
throughout the period prior to the Civil War."

Warrant: Equal sovereignty only exists in the Constitution to the terms of how States are
admitted the U.S., not to the states after the admittance.

Stevens, John P. "The Court & the Right to Vote: A Dissent." The New York Review of
Books. NYREV, 15 Aug. 2013. Web. 06 Jan. 2014.
<http://www.nybooks.com/articles/archives/2013/aug/15/the-court-right-to-vote-
dissent/>.

"Both the underrepresentation of blacks and the overrepresentation of white supremacists
in the South during that period contradict the notion that the 'fundamental principle of
equal sovereignty among the States' is a part of our unwritten Constitution. As Justice
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Ginsburg pointed out in her largely unanswered dissent in the Shelby County case,
the Court in its opinion upholding the original 1965 Voting Rights Act 'held, in no
uncertain terms, that the principle [of equal sovereignty] 'applies only to the terms
upon which States are admitted to the Union, and not to the remedies for local evils
which have subsequently appeared.''"

Analysis: The very nature of our voting system (different amount of votes based on population
in the House and equal amounts of votes in the Senate per state) proves that states should not be
judged completely equal. Rather it proves that states should be judged in their context (in this
case the size of their population). When judging states in context, it is clear that some states
violated the rights of individuals and should be evaluated in that context, justifying the VRA's
singling out of states that violated rights of equal people using election rules. On the other hand,
equal sovereignty does not exist within the Constitution and has been struck down by the courts
for years.

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Argument: To overrule states on non-federal issues or, furthermore, to discriminate against
states, there must be great reason, as in to remedy a constitutional divergence propagated by a
state or states. This situation of a constitutional violation perpetrated by states, however, does
not exist in regards to voting rights.

Warrant: The idea that Congress must use rational reasons to prevent racial discrimination in
voting if it acts against the reserved powers of the states is established precedent, precedent that
the Courts must follow.

Crum, Travis. "The Voting Rights Acts Secret Weapon: Pocket Trigger Litigation and
Dynamic Preclearance." The Yale Law Journal 119.8 (2010): 1992-2038. The
Yale Law Journal. Yale University, 2010. Web. 4 Jan. 2014.
<http://www.yalelawjournal.org/images/pdfs/895.pdf>.

"In South Carolina v. Katzenbach, Chief Justice Warren, writing for an eight Justice
majority, upheld section 5 as 'a valid means for carrying out the commands of the
Fifteenth Amendment.' Establishing a permissive standard, Katzenbach directed that
'[a]s against the reserved powers of the States, Congress may use any rational means
to effectuate the constitutional prohibition of racial discrimination in voting.'"

Warrant: Ruled constitutional because of evidence of voting discrimination, but this
information is no longer current (The first piece of evidence below proves that there must be
rationality and the second piece demonstrates how old that evidence is). Moreover, the evidence
not only just outdated, it is also inaccurate as states originally covered have made major
improvements since 1982.

Crum, Travis. "The Voting Rights Acts Secret Weapon: Pocket Trigger Litigation and
Dynamic Preclearance." The Yale Law Journal 119.8 (2010): 1992-2038. The
!"# %"&'()*+, -*. /0#12, 3)4"'-"5 6789


!"#$%&'( *+&,-. :;
Yale Law Journal. Yale University, 2010. Web. 4 Jan. 2014.
<http://www.yalelawjournal.org/images/pdfs/895.pdf>.

"Sustaining the 'rationality of the [coverage] formula,' the Court found that
Congress began work with reliable evidence of actual voting discrimination in a
great majority of the [covered jurisdictions] . . . and . . . was therefore entitled to
infer a significant danger of the evil in the few remaining States and political
subdivisions covered by . . . the Act.' The Court deferred to Congresss judgment
that the coverage formulas use of proxies'tests and devices' and turnout rates
was an appropriate and constitutional means of enforcing the Fifteenth
Amendment."

Wolf, Amy. "Constitutional Law Expert Comments on Controversial Supreme Court
Voting Rights Act Decision." Vanderbilt Research. Vanderbilt University, 28
June 2013. Web. 03 Jan. 2014.
<http://news.vanderbilt.edu/2013/06/constitutional-law-expert-comments-on-
controversial-supreme-court-voting-rights-act-decision/>.

"In 2005, when Congress renewed the Voting Rights Act for 25 years, it continued to
use the same coverage formula that it had enacted in 1982, which itself was based on
electoral data from the late 1960s and early 1970s. But as the Court notes in Shelby,
'history did not end in 1965.' The jurisdictions that were covered in the 1970s
justifiably, based on their then-recent history have made great strides since then.
Indeed, African-American voter registration and turnout is now greater in most of
the covered states than in many of the uncovered states."

Analysis: The court has established as precedent (in South Carolina v. Katzenbach) that
Congress may use "rational means" if they are to act against reserved powers of the states. That
being said, the effect must be to remedy the "racial discrimination in voting." Without evidence
of this racial discrimination and accurate knowledge of where that discrimination is happening, it
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would be impossible to rationally create a remedy to such racial discrimination. Making it
unfulfilling to the burden established by the courts to justify an infringement upon a state right.
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!"#$%&'( *+&,-. :;
%<6 = >?,1"?(?*-+?#* %&-?*,+ @+-+), A B-12, C)-,#*

Answer: There is clear reason to act: discrimination against voters.

Warrant: The presence of racial discrimination in the voting process meets a burden set by the
Supreme Court to abridge the reserved rights of the states: that sheer existence of racial
discrimination in voting.

"Minority Lawmakers: Voting Rights Act Ruling a Huge Setback." POLITICO. Politico,
n.d. Web. 04 Jan. 2014. <http://www.politico.com/story/2013/06/voting-rights-
act-reaction-minority-lawmakers-93342_Page2.html>.

"Rep. Ruben Hinojosa (D-Texas), the chairman of the Congressional Hispanic
Caucus, said he would work with his members to overturn the decision, which he called
a 'major setback.' 'Since its inception, the VRA has protected the ability of every
American to make their voice heard in the voting booth, and it is especially critical
to the Latino community,' he said in a statement. 'Latino voters are the fastest
growing segment of the United States electorate and have been consistently targeted
by jurisdictions for the expressed purpose of diluting our collective power in the
voting booth,' Hinojosa added. 'In the 2012 election an estimated 10% of votes were
cast by Latinos and that number will continue to surge with 50,000 Latinos becoming
eligible to vote every month.'"

Answer: Just because something is outdated doesn't make it inaccurate.

Warrant: Voting discrimination is widely prevalent. Just because the voting law is outdated
does not make it inaccurate in deeming that there are racially discriminatory voting requirements.
If anything, the law should be expanded.

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!"#$%&'( *+&,-. :7
"Minority Lawmakers: Voting Rights Act Ruling a Huge Setback." POLITICO. Politico,
n.d. Web. 04 Jan. 2014. <http://www.politico.com/story/2013/06/voting-rights-
act-reaction-minority-lawmakers-93342_Page2.html>.

"Reps. Keith Ellison (D-Minn.) and Mark Pocan (D-Wis.) have been pushing for a
constitutional amendment affirming the right of all eligible citizens to vote. The two
Democrats said Tuesdays decision further demonstrates the need for such a change to
the Constitution. 'Todays Supreme Court decision is an assault on our most
fundamental right as Americans,' Ellison and Pocan said in a statement. 'While the
Court is correct that current law to protect voters from discriminatory voting laws
is outdated, it is because its not expansive enough. The right to vote is under attack
across the country. Already in 2013, more than 30 states have introduced over 80
restrictive voting laws that often target low-income, student, elderly and minority
voters.'"

Answer: The evidence isn't outdated.

Warrant: The evidence is accurate at the point that many of the jurisdictions still had pervasive
discrimination and election rule changes were shutdown.

Sensenbrenner, Jim. "Is The Voting Rights Act Outdated?" Interview by Corey Dade.
NPR. NPR, 1 Dec. 2012. Web. 04 Jan. 2014.
<http://www.npr.org/2012/12/01/166226641/is-the-voting-rights-act-outdated>.

"'What the 12,000 pages of [testimony] showed is that in many of the jurisdictions,
particularly in Georgia and Texas, there still was pervasive discrimination, and that
there were [election rules] changes ... that were not cleared because they had a
discriminatory effect. "It really was a mountain of testimony. It was overwhelming.
We had opponents of Section 5 come in and attempt to testify that this really wasn't the
case, and they weren't able to make out a clear case.'"

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Answer: Out-datedness isn't reason enough to declare it unconstitutional.

Warrant: By providing a way to get out of coverage of the VRA, out-datedness becomes
irrelevant because every state and district has an opportunity to be without VRA coverage: a
more recent history of fair election rules.

Sensenbrenner, Jim. "Is The Voting Rights Act Outdated?" Interview by Corey
Dade.NPR. NPR, 1 Dec. 2012. Web. 04 Jan. 2014.
<http://www.npr.org/2012/12/01/166226641/is-the-voting-rights-act-outdated>.

"'But, again, there's a safety valve. If you don't think you have to be under Section 5,
then you can petition to get out. That's the procedure that the people who are
objecting in this court case should have done. If you can prove you have cleaned up
your act and are not passing election laws that discriminate against minorities, then
go convince the Justice Department, and you will be out from under the Voting
Rights Act.'"

Analysis: There is a key reason to act against state rights and, even in the more extreme case,
discriminate against states: the existence of racism in voting. Moreover, the claim that the
evidence of which states and districts enact racist policies is not completely outdated and 12,000
pages of testimony aid in proof that discrimination still exists. In any case, every state and
district cover has the opportunity of leaving the coverage of the VRA by just performing fair
election rule changes.

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!"#$%&'( *+&,-. :6
!;< = >+-+), >?#'0. /) @")-+). AB'-005

Argument: States should be treated accordingly with the principle of equal sovereignty, the idea
that each state should be as equals unless circumstances (like geographic region) justify differing
treatment. That being said, the VRA treats states differently based on outdated data that makes
states' footing not equal each new election period. Moreover, Congress is supposed to
implement nationwide legislation not that that singles out states.

Warrant: In the Supreme Court case of Northwest Austin, the Court established the principle of
equal sovereignty and created a burden to prove that different treatment among states is justified
by the problem it targets.

Shelby County, Alabama V. Holder, Attorney General, Et Al. Supreme Court Of The
United States. 25 June 2013. Supreme Court Opinions. Web. 6 Jan. 2014.
<http://www.supremecourt.gov/opinions/12pdf/12-96_6k47.pdf>.

"In Northwest Austin, this Court noted that the Voting Rights Act 'imposes current
burdens and must be justified by current needs' and concluded that 'a departure
from the fundamental principle of equal sovereignty requires a showing that a
statutes disparate geo- graphic coverage is sufficiently related to the problem that it
targets.'"

Warrant: The Framers intended that all states be equal.

Denniston, Lyle. "Constitution Check: Do the States Have a Right to Be Treated
Equally?" Constitution Daily. National Constitution Center, 2013. Web. 6 Jan.
2014. <http://blog.constitutioncenter.org/2013/07/constitution-check-do-the-
states-have-a-right-to-be-treated-equally/>.

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"When James Madison was working on drafts of the proposed Constitution, he
suggested that there be a provision for bringing in new states, beyond the original
13. His draft suggested that any new state 'shall be admitted on the same terms with
the original states.' That idea got some support during the Philadelphia Convention, but
the final version part of Article IV said only that 'new states may be admitted by the
Congress into this Union.'"

Warrant: States enter the U.S. as equals since the third new state. This idea of equal
sovereignty has been tested by time.

Denniston, Lyle. "Constitution Check: Do the States Have a Right to Be Treated
Equally?" Constitution Daily. National Constitution Center, 2013. Web. 6 Jan.
2014. <http://blog.constitutioncenter.org/2013/07/constitution-check-do-the-
states-have-a-right-to-be-treated-equally/>.

"When the third new state, Tennessee, joined the Union in 1796, Congress explicitly
declared for the first time that Tennessees entry would be 'on an equal
footing.' Other new states have been given the same promise. The most enthusiastic
Supreme Court embrace of that idea came in a 1911 Supreme Court decision, Coyle v.
Smith. But, that, too, was in the context of the rights that states would have at the point
of becoming part of the United States."

Warrant: Federalism gives equal sovereignty to states to prevent the federal government from
interfering with individual states' adoption of different laws.

Wood, Jonathan. "Shelby County: Are All States Created Equal?" Pacific Legal
Foundation Liberty Blog. Pacific Legal Foundation, 1 July 2013. Web. 06 Jan.
2014. <http://blog.pacificlegal.org/2013/shelby-county-are-all-states-created-
equal/>.

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"The basic idea of the principle of equal sovereignty is that the federal government
is responsible for adopting general nationwide legislation, but it cannot adopt laws
for individual states. The Constitutions federalist scheme leaves state by state
regulation to the states. If the application of Congress general laws varies, that
variation should be due to differences in the conditions of each state. But if New
York and North Dakota are going to have different laws, that should be because the
citizens of those states chose the laws that worked for them. This enables the states
to serve as laboratories of democracymeaning that a 'state may, if its citizens
choose, try novel social and economic experiments without risk to the rest of the
country.' But if the federal government can impose state by state regulation, the
states are converted from laboratories to lab rats."

Analysis: Equal sovereignty is the main reason that the Supreme Court ruled Section 4 of the
VRA unconstitutional, so focus on that. Although equal sovereignty is never directly stated in
the Constitution, create a compelling case using Framer's intent and instances of state equality in
legal writing to demonstrate that the principle of equal sovereignty is implied and living in the
Constitution.


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!"#$%&'( *+&,-. :;
%<6 = >+-+), >?#'0. /) @")-+). AB'-005

Answer: States don't have sovereignty in election rules, which presupposes this idea of equal
sovereignty.

Warrant: The election system is not federalist in nature. Although there is a decentralized
system of authority, this power is shared between the states. That being said, federal authority is
superior.

Tolson, Franita. "Reinventing Sovereignty?: Federalism as a Constraint on the Voting
Rights Act." Vanderbilt Law Review 65.4 (2012): 1195-259. University of South
Florida Libraries. University of South Florida. Web. 6 Jan. 2014.
<http://ehis.ebscohost.com.ezproxy.lib.usf.edu/eds/pdfviewer/pdfviewer?vid=4&s
id=10fed620-d0ce-4581-9df7-256a15b7dee5%40sessionmgr4004&hid=105>.

"The Supreme Court conflates state autonomy with state sovereignty in the context
of the VRA, in effect promoting the dualist undertones that characterize much of its
federalism case law and giving the states significantly more power over elections
than they otherwise would have. Its voting rights jurisprudence presupposes that
the states still retain a large amount of 'sovereignty' over elections, leaving room for
the Court to characterize the federal/state relationship over elections as one of
shared power instead of viewing the state as subordinate to federal authority. The
view of electoral authority as 'shared' has led the Court to defer more to the states
over the matter of elections. This deference is due in part to the misconception that
placing meaningful limits on congressional authority extends to all federalism issues,
including those issues such as elections, which are not truly 'federalist' in nature but
instead reflect a decentralized system of authority."

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Warrant: Congress, under the Election Clause and the Enforcement Clause of the Fourteenth
Amendment, give Congress the constitutional right to implement the VRA and "discriminate"
among states. The rational basis exists for this discrimination.

Tolson, Franita. "Reinventing Sovereignty?: Federalism as a Constraint on the Voting
Rights Act." Vanderbilt Law Review 65.4 (2012): 1195-259. University of South
Florida Libraries. University of South Florida. Web. 6 Jan. 2014.
<http://ehis.ebscohost.com.ezproxy.lib.usf.edu/eds/pdfviewer/pdfviewer?vid=4&s
id=10fed620-d0ce-4581-9df7-256a15b7dee5%40sessionmgr4004&hid=105>.

"In reality, Congresss power under the Elections Clause and its power to enforce
the dictates of the Fourteenth and Fifteenth Amendments ensure the
constitutionality of the VRA. Consequently, the Court should employ rational basis
review of the legislative record of the VRA for any new constitutional challenges going
forward."

Warrant: States' rights have been limited more stringently in many other cases.

Posner, Richard A. "The Voting Rights Act Ruling Is about the Conservative
Imagination." Slate Magazine. The Slate Group, n.d. Web. 06 Jan. 2014.
<http://www.slate.com/articles/news_and_politics/the_breakfast_table/features/20
13/supreme_court_2013/the_supreme_court_and_the_voting_rights_act_striking_
down_the_law_is_all.html>.

"For apart from the spurious principle of equal sovereignty, all that the majority
had on which to base its decision was tenderness for 'states rights.' One doubts that
this actually is a primary value for any of the justices. The same conservative
majority that decided Shelby had rejected a more cogent argument for states rights
when it held three years ago in McDonald v. City of Chicago that the Second
Amendmenta provision of the Constitution designed to secure state autonomy
specifically, the right of states to maintain their own little armies, the militias,
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!"#$%&'( *+&,-. ::
against federal abolitioncreates rights against states limiting gun ownership. It
seems that the courts regard is not for states rights in some abstract sense but for
particular policies that a majority of justices strongly favors."

Answer: Congress is granted the power to enforce the Fourteenth Amendment. Whether or not
it is different in effect towards some states does not matter.

Warrant: States are clearly not completely sovereign as the Fourteenth Amendment grants the
ability to decide for the states that are their citizens. This power can be exercised in any nature
by Congress, whether discriminatory towards states or not.

Fishkin, Joseph. "The Dignity of the South." The Yale Law Journal 123 (2013): 175-
95.The Yale Law Journal Online. Yale University, 8 June 2013. Web. 03 Jan.
2014. <http://yalelawjournal.org/the-yale-law-journal-pocket-part/election-
law/the-dignity-of-the-south/>.

"The great constitutional theorist Charles Black observed that one of the profound
effects of the Fourteenth Amendment was to deny each state the right to decide who
is a citizen of the state and who is not: federal law is now the exclusive arbiter of
who is a citizen of either Massachusetts or Mississippi. This, Black argued, is
'another nail in the coffin of the theory that our States are sovereign.' He added:
'That coffin can use all the nails it can get, because it yawns every now and then, on some
inauspicious midnight, to give up its undead, clad perhaps in the senatorial toga of
Calhoun.'"

Analysis: Start by questioning the affirmative's justifications that equal sovereignty is in the
Constitution. It is nowhere written in the original document and is only established in the
Supreme Court Case Northwest Austin, although Justice Ginsburg, in her dissent, seems to
disagree with its creation as a principle. Then, prove that states don't have sovereignty in the
first place rather they have autonomy.

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!"#$%&'( *+&,-. :;
!<= > ?+-+), @-A) +B) <C&B+ +# ?)0DEF#A)"*-*1)

Argument: States have the right of self-governance in a constitutional manner before the federal
government has any right to intrude and regulate. Self-governance, established by the 10th
Amendment and Article 4 of the Constitution, is heralded in many cases and must be protected.
The VRA, however, regulates the self-governance of states by declaring that some states must
follow certain procedures to change their election rules.

Warrant: The dissent of Justice Black in South Carolina v. Katzenbach establishes that states
have reserved powers that cannot be infringed upon by the federal government.

Crum, Travis. "The Voting Rights Acts Secret Weapon: Pocket Trigger Litigation and
Dynamic Preclearance." The Yale Law Journal 119.8 (2010): 1992-2038. The
Yale Law Journal. Yale University, 2010. Web. 4 Jan. 2014.
<http://www.yalelawjournal.org/images/pdfs/895.pdf>.

"Dissenting, Justice Black decried the Acts intrusion on state sovereignty, claiming
that it 'so distorts our constitutional structure of government as to render any
distinction drawn in the Constitution between state and federal power almost
meaningless.' According to Justice Black, preclearance treated the states as 'little
more than conquered provinces.'"

Warrant: Congress has limited ability in enforcing the Fourteenth Amendment as states have
the right to govern themselves. In order for the federal government to get involved, the
restriction must be congruent and proportional.

Crum, Travis. "The Voting Rights Acts Secret Weapon: Pocket Trigger Litigation and
Dynamic Preclearance." The Yale Law Journal 119.8 (2010): 1992-2038. The
Yale Law Journal. Yale University, 2010. Web. 4 Jan. 2014.
<http://www.yalelawjournal.org/images/pdfs/895.pdf>.
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"In City of Boerne v. Flores, the Court limited Congresss Fourteenth Amendment
enforcement authority against the states. Concerned that Congress would 'decree
the substance of the Fourteenth Amendments restrictions on the States,' the Court
asserted its supremacy in constitutional interpretation, declaring that '[t]here must
be a congruence and proportionality between the injury to be prevented or
remedied and the means adopted to that end.' Boernes congruence and
proportionality test was not a fit of spite, but rather the first in a series of cases limiting
Congresss enforcement authority vis--vis the states."

Warrant: In response to a proposed amendment to give the federal government powers to
enforce many cases of equal opportunity, government officials reacted with a common belief that
states have the right to govern themselves...not the federal government.

City Of Boerne, Petitioner V. P. F. Flores, Archbishop Of San Antonio, And United
States. Supreme Court Of The United States. 25 June 1997. Legal Information
Institute at Cornell University Law School. Web. 4 Jan. 2014.
<http://www.law.cornell.edu/supct/pdf/95-2074P.ZO>.

"Democrats and Republicans argued that the proposed Amendment would give
Congress a power to intrude into traditional areas of state responsibility, a power
inconsistent with the federal design central to the Constitution. Typifying of these
views, Republican Representative Robert Hale of New York labeled the Amendment 'an
utter departure from every principle ever dreamed of by the men who framed our
Constitution' id., at 1063, and warned that under it 'all State legislation, in its codes of
civil and criminal jurisprudence and procedures . . . may be overridden, may be
repealed or abolished, and the law of Congress established instead.' Ibid. Senator
William Stewart of Nevada likewise stated the Amendment would permit 'Congress
to legislate fully upon all subjects affecting life, liberty, and property,' such that
'there would not be much left for the State legislatures,' and would thereby 'work an
entire change in our form of government.'"
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Analysis: In the dissent of South Carolina v. Katzenbach, in the City of Boerne v. Flores, and in
government testimony, the state right of self-governance is one of the most valued pieces of the
U.S. Constitution and is intrinsic in our form of government. Therefore, it should be protected
before all.
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%;6 < =+-+), >-?) +@) AB&@+ +# =)0CDE#?)"*-*1)

Answer: City of Boerne v. Flores isn't applicable precedence.

Warrant: City of Boerne v. Flores does not deal with racial discrimination in voting like the
VRA does. On top of that, it does not refute a more relevant precedence, Morgan, which
combatted the state of New York's discrimination of a specific language minority.

Northwest Austin Municipal Utility District Number One V. Michael B. Mukasey.
United States District Court For The District Of Columbia. N.d. Brennan Center
for Justice. Web. 4 Jan. 2014.
<http://www.brennancenter.org/sites/default/files/legacy/Democracy/5.30.08.nam
undo.decision.pdf>.

"Not until City of Boerne did the Supreme Court establish the more restrictive
congruence and proportionality test for certain statutes enacted pursuant to the
Fourteenth Amendment. In our view, however, the City of Boerne standard does not
apply to the issue before us. To begin with, although the City of Boerne cases
repeatedly describe the Voting Rights Act as congruent and proportional, they
never state that Katzenbachs and City of Romes more deferential standard no
longer governs constitutional challenges to statutes aimed at racial discrimination in
voting. In fact, none of those cases even involved a statute dealing with race or
voting rights. Whats more, in Lopez, decided two years after City of Boerne, the Court
cited both Katzenbach and City of Rome with approval while rebuffing a constitutional
challenge to section 5s 'federalism costs.' Lopez, 525 U.S. at 282-83 (internal quotation
marks omitted). True, the same passage quotes City of Boerne, but only for the general
proposition that Congress possesses broad enforcement powers. Id."

Northwest Austin Municipal Utility District Number One V. Michael B. Mukasey.
United States District Court For The District Of Columbia. N.d. Brennan Center
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for Justice. Web. 4 Jan. 2014.
<http://www.brennancenter.org/sites/default/files/legacy/Democracy/5.30.08.nam
undo.decision.pdf>.

"Nor does anything in City of Boerne cast doubt on Morgan, in which the Court
applied Katzenbachs rationality test to a provision of the Voting Rights Act that
Congress enacted pursuant to the Fourteenth Amendment and crafted to protect the
voting rights of a specific language minority. See supra pp. 28-29. The City of Boerne
Court discussed Morgan at some length, explaining that it had upheld section 4(e) as
a 'reasonable attempt to combat' unconstitutional discrimination by the state of
New York."

Answer: Congress can limit self-governance under the enforcement provisions of the Fourteenth
Amendment.

Warrant: The Fourteenth Amendment edits the rights reserved to the states and the people by
giving Congress the enforcement power to provide equal opportunity for voting. The Fourteenth
Amendment limits states rights in favor of the federal government similar to how other
amendments function and therefore should be evaluated similarly.

Garland M. Fitzpatrick Et Al., Petitioners, V. Frederick Bitzer, Etc., Et Al. Frederick
Bitzer, Etc., Et Al., Petitioners, V. Donald Matthews Et Al. Supreme Court Of
The United States. 28 June 1976. Legal Information Institute at Cornell
University Law School. Web. 4 Jan. 2014.
<http://www.law.cornell.edu/supremecourt/text/427/445>.

"There can be no doubt that this line of cases has sanctioned intrusions by Congress,
acting under the Civil War Amendments, into the judicial, executive, and legislative
spheres of autonomy previously reserved to the States. The legislation considered in
each case was grounded on the expansion of Congress' powers with the corresponding
diminution of state sovereignty found to be intended by the Framers and made part of the
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Constitution upon the States' ratification of those Amendments, a phenomenon aptly
described as a 'carv(ing) out' in Ex parte State of Virginia, supra, 100 U.S., at 346. It is
true that none of these previous cases presented the question of the relationship
between the Eleventh Amendment and the enforcement power granted to Congress
under 5 of the Fourteenth Amendment. But we think that the Eleventh
Amendment, and the principle of state sovereignty which it embodies, see Hans v.
Louisiana, 134 U.S. 1, 10 S.Ct. 504, 33 L.Ed. 842 (1890), are necessarily limited by the
enforcement provisions of 5 of the Fourteenth Amendment. In that section
Congress is expressly granted authority to enforce 'by appropriate legislation' the
substantive provisions of the Fourteenth Amendment, which themselves embody
significant limitations on state authority. When Congress acts pursuant to 5, not
only is it exercising legislative authority that is plenary within the terms of the
constitutional grant, it is exercising that authority under one section of a
constitutional Amendment whose other sections by their own terms embody
limitations on state authority. We think that Congress may, in determining what is
'appropriate legislation' for the purpose of enforcing the provisions of the
Fourteenth Amendment, provide for private suits against States or state officials
which are constitutionally impermissible in other contexts."

Analysis: Self-governance only goes so far. The Fourteenth Amendment clearly limits the
reserved powers of states by granting Congress the power to enforce equal opportunity.
Moreover, self-governance may be established by City of Boerne v. Flores, but Morgan is much
more applicable to a case encompassing both racial discrimination and voting rights.

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!"#$%&'( *+&,-. :9
!;< = >?,@-"-+) A(@-1+

Warrant: The Equal Protection Clause is only violated when there is disparate intent as well as
disparate impact; this is proved by past Supreme Court Cases.

Pillai, K.G. Jan. Shrinking Domain of Individious Intent. William and Mary Bill of
Rights Journal. 2001. Web. 6 January 2013. Retrieved from
http://scholarship.law.wm.edu/cgi/viewcontent.cgi?article=1352&context=wmbor
j

'First, the Supreme Court has inextricably linked intent with effect. As explained in
more detail in Part III, in McCleskey v. Kemp, where a capital sentencing practice
was challenged on racial grounds, the Court required the challenger prove not only
'the existence of purposeful discrimination,' but also 'that the purposeful
discrimination 'had a discriminatory effect' on him.' Moreover, in United States v.
Armstrong, the defendant who alleged racially motivated selective prosecution was
required to show not only discriminatory intent and discriminatory effect but also
that similarly situated persons of a different race had not been prosecuted. By tying
it to discriminatory effect and other appendages, the Court has deprived invidious intent
of its independent constitutional significance. Recall that the impetus for the Davis rule
was to formulate a standard to identify the unfair and unjustifiable disproportionate effect
of governmental action that the Equal Protection Clause ought not to condone. Under the
Davis trilogy, disproportionate effect-not necessarily discriminatory effect-was only one
among several in the checklist of factors that might tend to demonstrate invidious intent
Demonstration of disproportionate impact, supported by proof of invidious intent,
would have been sufficient to prohibit a governmental action or policy based on the
Davis rule. According to the Court's changed formula, an equal protection plaintiff
is saddled with the burden of showing that an invidiously motivated action or policy
is not only disproportionately burdensome, but discriminatory as well.' The second
change to the intent prong of the Davis rule occurred when the Court made a distinction
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between simple racial motivation and predominant racial motivation in recent
redistricting cases. As race traditionally has been among the unavoidable mix of factors
that a legislature considers in making redistricting decisions, the Supreme Court found
the Davis rule that barred action motivated at least in part to produce an adverse effect
was inappropriate to achieve the goal of outlawing racial gerrymandering. Therefore, the
Court, in a series of redistricting cases, held that redistricting constitutes
unconstitutional racial gerrymandering only when race is 'the predominant factor
motivating the legislature's [redistricting] decision.' The Court had no difficulty in
recognizing that redistricting laws, though generally facially race-neutral, involve
mixed motives, and that the only feasible way to examine their constitutionality is to
subject them to strict scrutiny upon proof of racial motivation.' Such proof is
ordinarily obvious on the face of laws creating majority-minority districts. Nevertheless,
the Court ruled that strict scrutiny does not 'apply to all cases of intentional creation of
majority-minority districts,' ' absent a showing that race was the predominant factor in
their creation.'

Warrant: The fifteenth amendment only protects against intentional discrimination, not against
disparate impact.

Clegg, Roger. The Future of the Voting Rights Act after Bartlett and NAMUDNO.
Cato Institute Supreme Court Review. Web. 6 January 2013.
<http://object.cato.org/sites/cato.org/files/serials/files/supreme-court-
review/2009/9/bartlettnamudno-clegg_0.pdf>.

If a voting practice or procedure is racially nondiscriminatory on its face, is
applied equally and nondiscriminatorily, and was not adopted with any
discriminatory intent, then can it be said to be racial discrimination? For example,
suppose that a state does not allow prison inmates to vote. Suppose further that this
law applies to all inmates without regard to color, was adopted without a desire to
disenfranchise African Americans (indeed, perhaps when the state had very few
African Americans, or when most of the African Americans there were slaves and thus
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were never expected to vote anyhow), and has always been applied to all inmates without
regard to race. But it turns out that, in 2009, there is now a substantially higher
percentage of African Americans in the prison population than in the general
population. Are African Americans now being denied the right to vote 'on account
of race' (to quote the Fifteenth Amendment)? If you said yes, you may have a future in
this-or-that Legal Defense and Education Fund. The correct answer is that this is not
racial discrimination, and so such laws are not fairly within Congresss enforcement
authority under Section 2 of the Fifteenth Amendment. Whats more, whenever the
government bans actions (public or private) that merely have racially disparate
impact, two bad outcomes are encouraged that would not be encouraged, or would
at least be encouraged less, if the government stuck to banning actions that are
actually racially discriminatory. First, actions that are perfectly legitimate will be
abandoned. Second, if the action is valuable enough, then surreptitiousor not so
surreptitiousracial quotas will be adopted so that the action is no longer racially
disparate in its impact.

Warrant: Section five is based only on disparate impact, which statistically, doesnt occur
anymore, nor does it counter disparate intent because the mechanisms for racism in voting have
been banned already. Overall, section five no longer counters disparate impact or intent.

Shapiro, Ilya. The Voting Rights Act Doesn't Reflect Current Political Conditions. US
News and World Report. 27 February 2013. Web. 6 January 2013. Retrieved from
http://www.usnews.com/debate-club/should-the-supreme-court-strike-down-the-
preclearance-provision-of-the-voting-rights-act/the-voting-rights-act-doesnt-
reflect-current-political-conditions.

That is, while the 'historic accomplishments of the Voting Rights Act are undeniable,' as
the court said 43 years later, the modern use of Section 5which requires federal
'preclearance' of any changes in election law in certain jurisdictions'raises serious
constitutional concerns.' Most recently renewed in 2006, the provision adopts flawed
assumptions and flies in the face of the 15th Amendment's requirement that all voters be
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treated equally. Section 5's preclearance scheme is an anachronism, based on 40-
year-old data that doesn't reflect current political conditions. For example, the
racial gap in voter registration and turnout is lower in states originally covered by
Section 5 than it is nationwide. Blacks in some covered states actually register and
vote at higher rates than whites. Facetious tests and sinister devices are now
permanently bannedwhile even individual violations are exceedingly rare and no
more likely to occur in Section 5 jurisdictions. Indeed, the list of Section 5
jurisdictions is bizarre: six states of the Old Confederacy, plus Alaska, Arizona, and
parts of states ranging from New Hampshire to South Dakota. Three New York
counties are covered, all New York City boroughs. What's going on in the Bronx,
Brooklyn, and Manhattan that isn't in Queens or Staten Island? Four justices
famously hail from Gotham; maybe they know something we don't."

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The decision in Shelby County v. Holder revolves around Section 4 of the Voting
Rights Act, which establishes a 'coverage formula' to determine which states and
local governments fall under Section 5, and therefore need to get approval before
changing their voting laws. The justices ruled that Section 4 is unconstitutional, and
that the formula used for decades revised and extended several times by
Congress can no longer be used to establish those 'preclearance' requirements:
'The conditions that originally justified these measures no longer characterize voting in
the covered jurisdictions.'

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Warrant: Section four is based on disparate outcomes because the tests or devices are banned
by law.
Section Four of the Voting Rights Act. Department of Justice. Web. 6 January 2013.
Retrieved from "##$%&&'''()*+#,-.(/01&-2#&340*#&10#&5,+-&+.-67($"$

As enacted in 1965, the first element in the formula was whether, on November 1,
1964, the state or a political subdivision of the state maintained a 'test or device'
restricting the opportunity to register and vote. The Act's definition of a 'test or
device' included such requirements as the applicant being able to pass a literacy test,
establish that he or she had good moral character, or have another registered voter
vouch for his or her qualifications. The second element of the formula would be
satisfied if the Director of the Census determined that less than 50 percent of
persons of voting age were registered to vote on November 1, 1964, or that less than
50 percent of persons of voting age voted in the presidential election of November
1964. This resulted in the following states becoming, in their entirety, 'covered
jurisdictions': Alabama, Alaska, Georgia, Louisiana, Mississippi, South Carolina,
and Virginia. In addition, certain political subdivisions (usually counties) in four
other states (Arizona, Hawaii, Idaho, and North Carolina) were covered. In fully
covered states, the state itself and all political subdivisions of the state are subject to the
special provisions. In 'partially covered' states, the special provisions applied only to the
identified counties. Voting changes adopted by or to be implemented in covered political
subdivisions, including changes applicable to the state as a whole, are subject to review
under Section 5.

Analysis: This argument is saying that its unconstitutional to create laws combating disparate
impacts, only disparate impact and intent are justified, under the fifteenth amendment. This give
you two ways to impact this argument; first, you can argue that section four only looked to
disparate impact by measuring voting rates and saying x is racist when there could be other
factors causing differences in turnout, thus making section four unconstitutional. Further, you
could argue that section five is also the enforcement mechanism for section four and that this is
also unconstitutional, and by striking down section four, section five becomes non functional.
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Answer: The arguments here show that these states had discriminatory intents, disparate impact
can indicate racist intentions, and that it can be a legal warrant for legislation.

Warrant: These states actually have racist intent; section four was the only thing stopping it.

Vasilogambros, Matt. That Was Quick: Texas Moves Forward With Voter ID Law After
Supreme Court Ruling. 25 June 2013. Web. 6 January 2013. National Journal.
Retrieved from http://www.nationaljournal.com/politics/that-was-quick-texas-
moves-forward-with-voter-id-law-after-supreme-court-ruling-20130625.

Just hours after the Supreme Court handed down a ruling that guts parts of the
Voting Rights Act, Texas is moving forward with a controversial voter ID law that
state Attorney General Greg Abbott hopes to implement right away. 'With today's
decision, the state's voter ID law will take effect immediately,' Abbott said in a
statement to the Dallas Morning News. 'Redistricting maps passed by the
Legislature may also take effect without approval from the federal government.'
The Texas law requires voters to show photo identification to votea measure that
was blocked by the Justice Department, arguing the law could discriminate against
racial minorities. At the time, Attorney General Eric Holder called the law a 'poll
tax.' Although the Justice Department still maintains the right to approve voting-rights
laws in counties that have historically implemented discriminatory laws against
minorities, Congress now needs to determine those areas. The high court threw out
Section 4, which defined those areas as including Alabama, Alaska, Arizona, Georgia,
Louisiana, Mississippi, South Carolina, Texas, and Virginia, and other precincts.

Warrant: Countering disparate impact is crucial to countering discrimination; courts
interpretations of Title VII proves this.

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Title VIIs Disparate Impact Doctrine: The Difference Its Made for Women. American
Constitution Society for Law and Policy. 7 May 2013. Web. 6 January 2013.
Retrieved from http://www.acslaw.org/acsblog/title-vii%E2%80%99s-disparate-
impact-doctrine-the-difference-it%E2%80%99s-made-for-women.

This week the Senate HELP Committee will vote on the nomination of Thomas Perez to
be the next Secretary of Labor. In the midst of the many unfair and unfounded attacks
lobbed against Mr. Perez in recent weeks, an important legal doctrine for combating sex
discrimination has also come under attack: disparate impact. Under Mr. Perezs
leadership as the Assistant Attorney General for Civil Rights at the Department of
Justice, the Department has employed the longstanding disparate impact analysis to
combat employment discrimination. Its application is not only legally sound, but
exceptionally important to eliminate discrimination and further justice. The
Supreme Court and Congress have long made clear that Title VII of the Civil Rights
Act 'prohibits employers from using employment practices that cause a disparate
impact' based on sex and other protected classes. The doctrine of disparate impact
allows for a remedy when an employment practice that may be neutral on its face
has an unjustified adverse effect on members of a protected class. Disparate impact
has been crucial to addressing entrenched discriminatory employment practices.
Indeed, womens entry into high-wage, nontraditional occupations has been made
possible in large part by challenges to unfortunate employment practices that
disproportionately disadvantage women, which would have otherwise remained
unchanged but for the Title VIIs disparate impact doctrine. Courts, for example,
have struck down height, weight or strength requirements implemented by
employers in police departments, fire departments, in construction and in
correctional facilities because the requirements were not related to job
performance, but instead reflected stereotypes about the skills required for a
position. Moreover, there are often alternative practices that may both satisfy job
performance demands and allow for a diverse workforce.

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Warrant: Large sample sizes with disparate impact can be an indication of disparate treatment
(state populations should suffice).

Burton, Melinda K. Using Statistics to Prove Disparate Treatment Discrimination.
American Bar Association. May 2013. Web. 6 January 2013. Retrieved from
http://www.americanbar.org/publications/young_lawyer/2012-
13/may_2013_vol_17_no_7/using_statistics.html

Statistics can be a powerful tool in supporting, or defending, various litigation
matters, including those involving claims of discrimination in employment. When
one thinks of statistics being used to help prove a discrimination claim, one usually
considers their use in the context of a disparate impact discrimination claimwhere
a facially neutral employment practice falls more harshly on one group of employees
than another, and the practice is not justified by any business justification. Indeed, a
prima facie case of disparate impact discrimination is established when a plaintiff
identifies a specific employment practice to be challenged and proves through relevant
statistical analysis that the challenged practice has an adverse impact on a protected
group. But, did you know that statistics can also be used in the more common
disparate treatment discrimination claim? Disparate treatment claims involve
individuals who have been subject to an adverse employment action and allege that
they have been intentionally treated differently on account of their race. While
generally statistics cannot be used to establish a prima facie case of disparate
treatment discrimination, statistics, however, may be used to establish that the
employer's justification for the adverse action taken against the employee is a mere
pretext for discrimination. 'Appropriate statistical data showing an employer's
pattern of conduct toward a protected class as a group, can, if unrebutted, create an
inference that a defendant discriminated against individual members of the class.'
Conner v. State Farm Mut. Auto. Ins. Co., 273 Fed. Appx. 438 (6th Cir. 2008). Statistical
evidence in combination with other circumstantial evidence can raise a triable issue of
fact on the element of pretext. However, to be valid and useful in either type of
discrimination casesdisparate impact or disparate treatmentone must
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remember that the size of the sample must be statistically significant. Both the
methodology and the explanatory power of the statistics are needed, and an expert
statistician is often required. Small sample sizes are often rejected as having little
probative value, because results from small sample sizes that show racial disparity can
also be credited to or explained by simple random chance. Whether you are pursuing or
defending a claim of discrimination, you should remember that statistics may be used in
either disparate impact or disparate treatment cases and plan your case preparation
accordingly.

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Williams, Michael. Disparate Impact, Equal Protection, Congressional Power, And The
Ricci Decision: Why 'Relaxed' Strict Scrutiny Should Apply When Congress Uses
Its Section Five Enforcement Power To Prevent Violations Of The Fourteenth
Amemendment. Missouri Law Journal. January 2013. Web. 6 January 2013.
Retrieved From Http://Mississippilawjournal.Org/Wp-
Content/Uploads/2013/01/Williams_Eicf1.Pdf.

A. Compelling Interest in Equal Protection The disparate-impact prong of Title VII
uses race as a means of classification. Under the Equal Protection Clause, practices
that involve racial classification are subject to strict scrutiny by the Supreme Court
and must be shown to be 'narrowly tailored to achieve a compelling government
interest.' Issues that have been recognized as compelling government interests are:
diversity, remedying past discrimination, and preventing intentional and pre-textual
discrimination. Title VII was implemented to remedy the effects of past discrimination
within employment decisions and provides penalties for obvious discrimination.
However, the disparate-impact prong is designed to prevent hidden discrimination,
and provide equal opportunities regardless of race or gender. The Supreme Court
dealt with facially neutral practices that have disparate results in Washington v. Davis,
suggesting that disparate results may give rise to strict scrutiny, but not in that specific
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circumstance. Although the Equal Protection Clause does not provide its own
disparate-impact analysis, this does not mean that there cannot be a compelling
governmental interest to support disparate impact in the absence of actual
discrimination.

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Argument: Section Four undermines state autonomy by undermining federalism, violating the
constitution.

Warrant: Federalism is a significant concept in the Constitution

Federalism. Cornell University Law School Legal Information Institute. Web. 4
December 2013. Retrieved from "##$%&&'''()*'(+,-./))(/01&'/2&3/0/-*)456(

Federalism is a system of government in which the same territory is controlled by two
levels of government. Generally, an overarching national government governs issues that
affect the entire country, and smaller subdivisions govern issues of local concern. Both
the national government and the smaller political subdivisions have the power to make
laws and both have a certain level of autonomy from each other. The United States has
a federal system of governance consisting of the national or federal government, and
the government of the individual states. The U.S. Constitution grants the federal
government with power over issues of national concern, while the state
governments, generally, have jurisdiction over issues of domestic concern. While the
federal government can enact laws governing the entire country, its powers are
enumerated, or limited; it only has the specific powers allotted to it in the
Constitution. For example, Article I, Section 8 of the Constitution grants Congress
the power to levy taxes, mint money, declare war, establish post offices, and punish
piracies on the high seas. Any action by the federal government must fall within one
of the powers enumerated in the Constitution. For example, the federal government
can regulate interstate commerce pursuant to the Commerce Clause of the
Constitution but has no power to regulate commerce that occurs only within a single
state. The amount of power exercised by the federal government is dependant upon how
the various provisions of the Constitution are interpreted. For example, the U.S. Supreme
Court expanded the powers of the federal government when it construed federal powers
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to include those 'necessary and proper' to effect the legislation passed by Congress.
McCulloch v. Maryland, 17 U.S. 316 (1819). This construction allows the federal
government to exercise power ancillary to those specifically listed in the
Constitution, provided the exercise of those powers does not conflict with another
Constitutional provision. In contrast, state power is not limited to express grants of
power. Under the Tenth Amendment of the Constitution, States have all powers that
are not specifically granted to the federal government, or forbidden to them under
the Constitution. For example, although the Constitution grants the federal
government the power to tax, state governments are also able to levy taxes to
support themselves, because that power is not forbidden to them by the
Constitution. State governments manage matters of local concern, such as child
protective services, public schools, and road maintenance and repair.

Warrant: 4 major reasons why federalism to upholding freedom and is critical to democracy

Tabbarok, Alexander T. Arguments for Federalism. The Independent Institute. 20
September 2001. Web. 5 January 2013. Retrieved from
http://www.independent.org/issues/article.asp?id=485

1. Laboratories of Democracy
'It is one of the happy incidents of the federal system,' Justice Louis D. Brandeis
wrote in 1932, 'that a single courageous state may, if its citizens choose, serve as a
laboratory; and try novel social and economic experiments without risk to the rest
of the country.' In a decentralized system ideas can be tried at the local level, there
learning occurs, ideas are improved and then begin to diffuse throughout the rest of
the country. This idea is more than theoretical. Airline deregulation began at the state
level and was adopted nationally when it was noticed that in-state trips in large states that
had deregulated were much cheaper than trips of the same distance that crossed state
lines. Welfare reform and school choice are two other examples of recent policies
that began at the state level. The lessons learned need not always be positive lessons.
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Other states and countries owe California a great debt, for example, for its demonstration
of how not to deregulate electricity.

2. Diversity of Preferences
The laboratory of democracy view implicitly assumes there is one best way to do
something and that a decentralized trial and error process is a good way to discover what
that best way is. If it were not for change, then from this viewpoint all jurisdictions would
converge over time on a similar set of policies as they learned from one another what the
best policies were. The diversity of preference view says that even in the long run,
policies will differ across jurisdictions because people have different preferences.
What is best for Rhode Island is not necessarily what is best for California, and
what is best for San Jose is not necessarily what is best for San Francisco. By
decentralizing power one can better match preferences with policies. The diversity
of preference view implies that the more heterogeneous a society is, the more
decentralized should be its institutions. Decentralization, by the way, doesn't simply
mean decentralization to a smaller government unit; it may mean leaving the
decision in private hands leaving a decision to private choice is in effect
decentralization to the smallest political unit, the individual. In their classic work The
Calculus of Consent Buchanan and Tullock make both the point about heterogeneity and
decentralization to the individual when they write that 'Many activities that may be quite
rationally collectivized in Sweden, a country with a relatively homogeneous population,
should be privately organized in India, Switzerland, or the United States (p.116).'

3. Subsidiarity: Matching Economic and Political Jurisdictions
Subsidiarity is a European term that means 'higher level governments should not do
anything that lower levels government can do as well or better.' More generally,
impact jurisdictions should be matched to political jurisdictions. What do I mean?
Consider the issue of what level of government is responsible for the financing of fire
houses. Suppose that the effective range or impact of the firehouses is 5 km and that the
firehouse is located in a jurisdiction of 10 km (see diagram). If there are more voters in
the central jurisdiction, then they can foist some of the taxes for the fire station on
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taxpayers in the outer jurisdiction. Since the benefits of the firehouse go solely to the
central jurisdiction but the costs are spread across both jurisdictions, the central
jurisdiction is being subsidized and thus has an incentive to spend more on firehouses
than is justified by the actual benefits. This is what we mean by pork barrel legislation.
There are 435 districts represented in Congress, for example, so it costs each district
approximately 1/435th of the actual cost to build a local project such as the Lawrence
Welk museum. Thus, we get too many museums devoted to Lawrence Welk. A great cost
to us all. The other alternative is that the outer jurisdiction contains more voters than the
central jurisdictionthus, seeing no benefits, they have little incentive to impose costs.
In this case the central jurisdiction may have too little spent on firehouses. Note also that
the subsidiarity principle also implies that decentralization can go too far. If we split the
central district into two, then there could be wasteful duplication of services; two
firehouses when one would do. Similarly when dealing with public goods the subsidiarity
principle implies that the public goods with the largest extensive range should be
supplied by the political jurisdiction with the largest extensive range. National defense is
the obvious example. If national defense were left to the states each state would have an
incentive to free ride on the provision of defense by the others. If New York pays for a
nuclear missile, then why should New Jersey pay for anything at all? When we think of
federalism we naturally think of the federal government and the states, but the
principles that motivate federalism apply at all levels, and we should be imaginative
in thinking about how political units can be designed to match impact jurisdictions.
There is no reason, for example, why the political unit that determines fire
expenditures need be the same as the unit that determines water or school
expenditures and indeed in the United States in addition to national, state and local
governments there are many thousands of special districts that are often
functionally organized and that control areas such as water, streets, lighting and so
forth.

4. Liberty through Mobility and Competitive Federalism
Oppression at the federal level is difficult to escape. Oppression by the states can be
countered by mobility. The more powers that are devolved to lower levels, the easier
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it becomes pick and choose policies by moving. Gays may move to cities like San
Francisco where they are better tolerated, and indeed if enough of them move they
can become a political force. In this respect, the idea is similar to the diversity of
preferences notion except there the emphasis was on the idea that federalism allows
pre-existing diversities to be recognized. Whereas here the idea is that you can move to
a city or town that better reflects your preferences. One sometimes hears, for example,
that federalism was more important in the 18th century when the people of Virginia really
were quite different than the people of New England. Today, so the argument goes, now
that people are much more likely to move from one state to another the differences are
less clear and so federalism is less important. While this argument makes some sense
from the diversity of preference view, it makes no sense at all from the perspective of
mobility because it is mobility that generates differences in preferences and competitive
federalism works better the more mobile citizens are. The mobility argument, however,
is about more than preferences, its about checking and limiting government power.
The idea is not simply that exit allows for islands of liberty but that the threat of exit
means that you dont have to leave to achieve liberty. Knowing that taxpayers will
leave if taxes become too high, for example, means that taxes wont become too high.
As Nobel Laureate in economics James Buchanan (1995/1996) put it, in an ideal
federalism the 'federal government is constitutionally restricted to the exercise of the
minimal or protective state functions, while all other functions are carried out by
separated state or provincial units. The availability of the exit option, guaranteed by the
central government, would effectively place limits on the ability of the state-provincial
governments to exploit citizens . . . Federalism serves the dual purpose of allowing the
range or scope for central government activity to be curtailed and, at the same time,
limiting the potential for citizen exploitation by state-provincial units.'

*original source includes ellipses

Warrant: Traditionally, the right to regulate elections falls under the jurisdiction of states;
section four violated this and infringed on the sovereignty of states.

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Shelby County v Holder. Cornell University Law School Legal Information Center. 27
February 2013. Web. 4 January 2013. Retrieved from
"##$%&&'''()*'(+,-./))(/01&21$+#&+/-#&34567(

Another concern shared by many of Shelby Countys amici is that the VRA
impinges on federalism and state sovereignty with regard to elections. In particular,
the amici point to the supervisory power historically granted to states over their
own state elections. While the amici admit that this power is not absolute, they find that
the unequal restrictions placed on certain states under the VRA is an infringement
on state sovereignty and puts those states on unequal footing from their neighbors,
raising federalism concerns. In response, amici supporting Respondent address
sovereignty concerns as competing with Constitutional accountability. Additionally, they
look to the Supreme Courts history of support for the VRA, finding that its restrictions
do not infringe on state sovereignty concerns. They also suggest that any imposition the
VRA coverage puts on a state is proportional to the need for such coverage with the goal
of protecting minority voters.

Warrant: Preclearance from Section four undermined state attempts to pass voter reform laws.
Applewhite, Scott. For Republicans, no easy answers on Voting Rights Act. Associated
Press and CBS news. 5 July 2013. Web. 5 January 2013. Retrieved from
http://www.cbsnews.com/news/for-republicans-no-easy-answers-on-voting-
rights-act/.

Against that backdrop, Southern Republicans celebrated Chief Justice John
Roberts' opinion that effectively frees all or parts of 15 states with a history of racial
discrimination from having to get advanced federal approval for any election
procedure. The so-called 'preclearance' provision anchored the law that Congress
renewed four times since its 1965 passage as the crowning achievement of the civil
rights movement for black Americans. The law contains an 'opt-out' provision that
allowed a jurisdiction to ask a federal court for release from preclearance if it has
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established a record of non-discrimination. Roberts said that process - never used
successfully by an entire state - wasn't enough. 'The court recognized that states can
fairly design our own (district) maps and run our own elections without the federal
government,' Louisiana Gov. Bobby Jindal said in a statement. Citizens can still sue
to overturn state laws, but they'll likely have to prove discrimination after the fact,
rather than local authorities having to convince federal officials in advance that a
law wouldn't discriminate. Virginia Attorney General Ken Cuccinelli, a Republican
running for governor, said: 'I do not believe we have the institutional bigotry like we
had before.' GOP officials in Texas and Mississippi promised within hours of the
decision to enforce new laws requiring voters to show identification at polls. The
U.S. Justice Department's civil rights lawyers had frozen the Mississippi law while
they considered effects on minority voters, while a panel of federal judges in
Washington blocked the Texas law because of its potential to harm low-income and
minority voters. North Carolina Republicans said they'd enact their own voter
identification law. Texas Gov. Rick Perry signed new congressional district maps - tilted
to Republican advantage - that federal authorities would have had to review. But in
Washington, Republicans like House Majority Leader Eric Cantor of Virginia embraced
the nuances of Roberts' ruling. The court didn't actually strike down preclearance, instead
tossing rules that determined which jurisdictions got oversight. Congress is free to rewrite
those parameters and revive advance review, Roberts wrote.

Warrant: The government was no longer warranted in enforcing section four and overriding
states rights because the states covered under section four had substantially improved.

Bravin, Jess. Court Upends Voting Rights Act. Wall Street Journal. 25 June 2013.
Web. 4 January 2013. Retrieved from
http://online.wsj.com/news/articles/SB10001424127887323469804578521363840
962032

"'This was strong medicine, but Congress determined it was needed to address
entrenched racial discrimination in voting,' he wrote. 'But history did not end in
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1965.' The formula still used to identify states subject to preclearance involved past
voting practices. In 1965 and through several subsequent reauthorizations,
Congress identified states and localities that required voters to pass such obstacles
as literacy or character tests, and had less than 50% voter registration or turnout in
the 1964, 1968 and 1972 federal elections. In 1965, Chief Justice Roberts wrote, the
formula made sense. In Mississippi, for instance, 69.9% of whites were registered to
vote, compared to 6.7% of blacks. In 2004, by contrast, black registration in
Mississippi actually exceeded that of whites, 76.1% compared to 72.3%. He observed
that Philadelphia, Miss., where civil-rights workers James Chaney, Andrew Goodman
and Michael Schwerner were murdered in 1964, and Selma, Ala., where "Bloody
Sunday" saw police beat voting-rights marchers in 1965, both have African-American
mayors today. While the Voting Rights Asct was 'immensely successful at redressing
racial discrimination and integrating the voting process,' it had done so by
undermining 'the integrity, dignity, and residual sovereignty of the States,' the chief
justice wrote. 'States must beseech the Federal Government for permission to
implement laws that they would otherwise have the right to enact and execute on
their own,' he said.

Analysis: This argument is basically just saying that federalism is historically important in the
United States Constitution; each state is different, so different laws fit different states, and the
competition between states forces them to respect freedom, otherwise people can leave.
Essentially, the federal government infringed on the concept of federalism by undermining their
ability to pass voting reforms, without being warranted because the states covered under section
four no longer acted in a discriminatory manner. Thus, Section four of the VRA is
unconstitutional.
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Answer: State autonomy and federalism can be overruled if in conflict with the Constitution or
with federal law.

Warrant: States that conflict with the Constitution or Federal Laws are trumped by the federal
laws or the Constitution due to the Supremacy Clause.

The Supremacy Clause and Federal Preemption. University of Missouri-Kansas City
Law School. Web. 5 January 2013. Retrieved from
"##$%&&'()*+,-./+01,&2(/,'#3&$4560/#7&2#48('7&/59'()&$400-$#859+"#-

The preemption doctrine derives from the Supremacy Clause of the Constitution
which states that the 'Constitution and the laws of the United States...shall be the
supreme law of the land...anything in the constitutions or laws of any State to the
contrary notwithstanding.' This means of course, that any federal law--even a
regulation of a federal agency--trumps any conflicting state law. Preemption can be
either express or implied. When Congress chooses to expressly preempt state law,
the only question for courts becomes determining whether the challenged state law
is one that the federal law is intended to preempt. Implied preemption presents more
difficult issues, at least when the state law in question does not directly conflict with
federal law. The Court then looks beyond the express language of federal statutes to
determine whether Congress has 'occupied the field' in which the state is attempting
to regulate, or whether a state law directly conflicts with federal law, or whether
enforcement of the state law might frustrate federal purposes. Federal 'occupation of
the field' occurs, according to the Court in Pennsylvania v Nelson (1956), when there is
'no room' left for state regulation. Courts are to look to the pervasiveness of the federal
scheme of regulation, the federal interest at stake, and the danger of frustration of federal
goals in making the determination as to whether a challenged state law can stand."

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*original source includes ellipses

Warrant: The states under section 4 were still consistently committing acts of discrimination.

Bravin, Jess. Court Upends Voting Rights Act. Wall Street Journal. 25 June 2013.
Web. 4 January 2013. Retrieved from
http://online.wsj.com/news/articles/SB10001424127887323469804578521363840
962032

Justice Ruth Bader Ginsburg took the symbolic step of reading her dissent from the
bench. "Justices [Stephen] Breyer, [Sonia] Sotomayor, [Elena] Kagan and I are of the
view that Congress' decision to renew the act and keep the coverage formula was an
altogether rational means to serve the end of achieving what was once the subject of a
dream: the equal citizenship stature of all in our polity, a voice to every voter in our
democracy undiluted by race," she said. She recalled that the 14th and 15th amendments
were ratified after the Civil War to prevent the defeated Confederate states from denying
equal rights to freed blacksand gave enforcement authority to Congress. The court
said in 1966 that Congress could use "any rational means" to address racial
discrimination in voting, and Justice Ginsburg said Tuesday that the evidence
lawmakers compiled in 2006 demonstrated that the extension of the law was
rational. Between 1982 and 2006, the Justice Department "blocked over 700 voting
changes based on a determination that the changes were discriminatory," she wrote.
That was enough to show that covered jurisdictions were still targeting minority
votersand suggested that the numbers would be worse without the deterrent effect
of the preclearance requirement, she said. Justice Ginsburg argued that the
intrusion on state sovereignty was limited, because jurisdictions that maintain a
clean record for 10 years can apply for exemption from preclearance, a process
known as "bailout."

Warrant: This conflicts with the fourteenth and fifteenth amendment, triggering the supremacy
clause.
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!"#$%&'( *+&,-. 879

Landmark Legislation: The Civil War and Reconstruction Amendments to the
Constitution. United States Senate. Web. 5 January 2013. Retrieved from
https://www.senate.gov/artandhistory/history/common/generic/CivilWarAmendm
ents.htm.

Fourteenth Amendment Ratified July 9, 1868, the Fourteenth Amendment granted
citizenship to all persons 'born or naturalized in the United States,' including
former slaves, and provided all citizens with 'equal protection under the laws,'
extending the provisions of the Bill of Rights to the states. The amendment
authorized the government to punish states that abridged citizens right to vote by
proportionally reducing their representation in Congress. It banned those who
'engaged in insurrection' against the United States from holding any civil, military, or
elected office without the approval of two-thirds of the House and Senate. The
amendment prohibited former Confederate states from repaying war debts and
compensating former slave owners for the emancipation of their slaves. Finally, it
granted Congress the power to enforce this amendment, a provision that led to the
passage of other landmark legislation in the 20th century, including the Civil Rights
Act of 1964, and the Voting Rights Act of 1965. Congress required former Confederate
states to ratify the Fourteenth Amendment as a condition of regaining federal
representation.
Fifteenth Amendment
As a member of the Senate Committee on the Judiciary, William Stewart of Nevada
guided the Fifteenth Amendment through the Senate. Ratified February 3, 1870, the
amendment prohibited states from disenfranchising voters 'on account of race,
color, or previous condition of servitude.' The amendment left open the possibility,
however, that states could institute voter qualifications equally to all races and
many former confederate states took advantage of this provision, instituting poll
taxes, and literacy tests, among other qualifications. The Reconstruction
amendments to the Constitution extended new constitutional protections to blacks,
though the struggle to fully achieve equality would continue into the twentieth century.
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Warrant: Congress has always had the power to regulate federal elections, and has been
affirmed by the Supreme Court; federalism isnt at issue here.

The Editorial Board. Editorial: The Court: Congress Regulates Federal Elections. New
York Times. 17 June 2013. Web. 5 January 2013. Retrieved from
http://www.nytimes.com/2013/06/18/opinion/the-court-congress-regulates-
federal-elections.html.

The Supreme Court, in a 7-to-2 ruling on Monday, strongly affirmed the power of
Congress to regulate Congressional elections. The court held that Arizona cannot
impose a requirement on voters to prove their citizenship when the federal law, the
National Voter Registration Act of 1993, does not require any such thing. The
federal statute, also known as the Motor Voter Act, requires states to 'accept and
use' a national voter registration form for federal elections. Voters using the form
have to swear, under penalty of perjury, that they are citizens, but they do not have
to provide a drivers license, passport or other proof of citizenship. Justice Antonin
Scalia, in the majority opinion, wrote that the power of Congress over
Congressional elections 'is paramount, and may be exercised at any time.' The 1993
federal law was passed by Congress to remedy the morass of different state laws and
regulations that kept some 40 percent of eligible voters from registering. The point
was to simplify the process by allowing easy registration when a voter applied for a
drivers license or by mailing in the federal form. In 2004, Arizona passed a law,
Proposition 200, that directly conflicted with the federal law in an effort to combat
voting by undocumented immigrants, though there is scant evidence that there was
much fraud to combat. Because of the state law, Arizona rejected the registrations
of 31,550 people. Most of those rejected said that they were born in the United
States, but many lacked identification. A very high percentage of the rejections were
erroneous. Tens of thousands were denied the right to vote under that scheme.
Fortunately, the courts majority in Arizona v. Inter Tribal Council of Arizona
ruled that the Constitution empowers Congress to reject state regulations on federal
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elections. While the decision was emphatic about federal authority over the manner of
elections, the Scalia opinion also said that states have power to set the qualifications of
voters, like residency requirements, and to enforce them. Justice Scalia wrote that
Arizona could still ask the federal agency responsible for administering this federal law
to permit the state to require proof of citizenship. And he said that if the agency did not
grant the request, the state could ask a federal court to decide that signing the federal
form is not enough to ensure that a would-be voter is actually a citizen. In leaving open
an avenue for an Arizona challenge, the court also made it clear that ensuring voting
rights to every eligible American requires continued vigilance.

Analysis: Basically, the first three pieces of evidence show that because the laws in the states
covered by section four were still discriminatory, the fourteenth and fifteenth amendment
trumped states rights due to the Supremacy Clause. Even if opponents make the argument that
other districts discriminate more, this argument is just saying that yeah those states should be
covered too, but that doesnt mean these states should be absolved. Second, the last piece of
evidence is saying that because federal elections, which is what is at issue in section, is
traditionally governed by congress, federalism was never a concern in the first place.
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!;< = >'.?1?-0 ;)@?)A -*. B?(?+?*& 3).)"-0 !#A)"

Argument: Its necessary for the Supreme Court to interpret the Constitution in order to limit
government power; ruling that section four is unconstitutional prevents abuse of government.

Warrant: Judicial Review is expressed in the Constitution as being vital to understanding the
Constitution and how to apply it.

Rappaport, Mike. The Constitutional Basis for Judicial Review. Library of Law and
Liberty. 24 January 2013. Web. 6 January 2013. Retrieved from
http://www.libertylawsite.org/2013/01/24/the-constitutional-basis-for-judicial-
review/.

"First, the Supremacy Clause expressly states that a form of judicial review exists:
'This Constitution, and the laws of the United States which shall be made in
pursuance thereof; and all treaties made, or which shall be made, under the
authority of the United States, shall be the supreme law of the land; and the judges
in every state shall be bound thereby, anything in the Constitution or laws of any
State to the contrary notwithstanding.' Clearly, this is stating that state court judges
must apply the Constitution rather than state statutes. Thus, Graglias apparent claim
that judicial review is not expressly in the Constitution is mistaken as to judicial review
of state laws, and Graglias essay clearly indicates that he has such judicial review of
state laws in mind. But the constitutional text also supports judicial review of federal
statutes. This occurs in a number of different ways. First, at the time of the
Constitution, constitutions were thought to take priority over statutes. Second,
judges would also have a role in determining that a statute conflicted with the
constitution (as opposed to the alternative possibility that the Congress would have
the exclusive power to make that determination). In the case of state statutes, the
Constitution itself recognized that state courts would make the determination that
the state statute conflicted with the Constitution (rather than state legislatures
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making the determination). So the same rule would make sense as to federal
statutes. In addition, the Constitution proclaims itself law, which also suggests that
judges should interpret it as they interpret other laws. Further, the Constitution
provides that 'This Constitution, and the laws of the United States which shall be
made in pursuance thereof . . . shall be the supreme law of the land.' That suggests
that only federal statutes consistent with the Constitution are supreme law of the
land. This last provision is open to other interpretations, but significantly many people at
the time of the framing interpreted it in that way. See footnote 76 of this paper."

Warrant: Judicial Review is key to maintaining limited government with separation of powers.

Rostow, Eugene V. The Democratic Character of Judicial Review. Harvard Law
Review. 1 January 1952. Web. 6 January 1952. Retrieved from
http://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?article=3158&context=fs
s_papers

The power of constitutional review, to be exercised by some part of the
government, is implicit in the conception of a written constitution delegating limited
powers. A written constitution would promote discord rather than order in society if
there were no accepted authority to construe it, at the least in cases of conflicting
action by different branches of government or of constitutionally unauthorized
governmental action against individuals. The limitation and separation of powers, if
they are to survive, require a procedure for independent mediation and construction
to reconcile the inevitable disputes over the boundaries of constitutional power
which arise in the process of government. British Dominions operating under written
constitutions have had to face the task pretty much as we have, and they have solved it in
similar ways. Like institutions have developed in other federal systems.

Warrant: Judicial Review is needed to prevent the tyranny of the majority and prevent
legislative abuses.

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Dick, Anthony. The Importance of Judicial Review. National Review. 24 June 2013.
Web. 5 January 2013. Retrieved from http://www.nationalreview.com/bench-
memos/49866/importance-judicial-review/anthony-dick

The perverse effect of disparaging judicial review, of course, is to endorse a
Congress whose power is limited only by its own underdeveloped capacity for self-
restraint, to paraphrase Justice OConnor. As noted in the Federalist Papers, one of
the key accomplishments of the founding was to establish 'the bulwark of a limited
Constitution against legislative encroachments.' And its hard to trust that the
legislature can be a bulwark against itself. One could argue that legislative abuses
are best prevented through popular pressure and democratic accountability, but
problems of impulse, public choice, rational voter apathy, and tyranny of the
majority pose something of an obstacle to that view, as the reality of our
government daily demonstrates.

Warrant: The US Supreme Court in striking down section four, limits the power of the federal
government and maintains the power of judicial review.

Gans, David H.. Shelby County V. Holder: Oral Argument Wrap Up. Constitutional
Accountability Center. 3 February 2011. Web. 6 January 2013.
<http://theusconstitution.org/text-history/2742>.

Yesterday, in a packed courtroom in the federal courthouse in Washington, D.C.,
District Judge John Bates heard more than three hours of oral argument on the
constitutionality of Congress near-unanimous 2006 decision to renew the preclearance
provision of the Voting Rights Act, one of the Acts most important and successful
provisions. Over the course of the argument in Shelby County v. Holder, the parties
debated the meaning of the Fifteenth Amendments guarantee of the right to vote
free from racial discrimination, the scope of judicial review of congressional
legislation to enforce the Fifteenth Amendment, and the exhaustive record Congress
developed in 2005 and 2006 to support renewal of the Acts preclearance provision,
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which requires certain jurisdictions with a history of racial discrimination in voting
to obtain federal approval before making changes in voting laws or regulations.

Analysis: Basically, the argument here is that judicial review is a vital function of the Supreme
Court. This is because the only way for the government to be limited is for some entity to explain
what the limits are, based on the Constitution. By having the Supreme Court interpret the
Constitution, and define the limits of the authority of Congress, it maintains the autonomy of the
states, protects minorities from majority tyranny, and upholds the purpose of the Constitution.
Essentially, the only way to limit federal power and maintain state autonomy is by interpreting
the limits of the government through the constitution, which is only enabled by Judicial review.

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%:6 ; <'.=1=-0 >)?=)@ -*. A=(=+=*& 3).)"-0 !#@)"

Warrant: Judicial Review has historically been used to expand the power of the federal
government and populism due to politics.

Somin, Ilya. The Impact of Judicial Review on American Federalism: Promoting
Centralization more than State Autonomy. George Mason University School of
Law. 16 August 2013. Web. 6 January 2013. Retrieved from
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2311400.

Although judicial review has limited both federal and state power at different
times in American history, it has constrained the states far more. Especially since the
late 1930s, federal courts have imposed only modest constraints on the federal
government, even as they enforce far greater restrictions on state government autonomy.
Today, the courts enforce an extraordinarily wide range of rights against state
governments, all of them tending to force the states to adhere to uniform, federally
imposed standards. This pattern is not accidental. Judicial action against federal laws is
hampered by several important structural constraints. Most importantly, federal
judges are appointed by the president and confirmed by the Senate, limiting the
extent to which there is likely to be a Supreme Court majority that diverges greatly
from the preferences of the federal governments political branches. When the Court
substantially deviates from the latters views, it is often brought into line by new judicial
appointments. Historically, presidents have usually sought to appoint judges
supportive of their partys agenda, which often coincides with that of the majority
public opinion. Even when justices wish to restrict federal power, they are careful
not to offend majority public opinion and the national political branches too much,
since they depend on the latter to enforce their decisions. Congress also has the
power to limit the courts appellate jurisdiction, increase (but not decrease) judicial
pay, and create new judicial positions to be filled by appointees potentially more
amenable to the wishes of the dominant political coalition in the federal government.
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Flouting national public opinion can create a damaging political backlash that leads
to the Courts defeat. In the most dramatic such case, the Courts efforts to protect
slavery in Dred Scott backfired so completely that it helped bring on the early abolition
of the institution Chief Justice Taney hoped to defend. While both state and federal
officials usually comply with judicial rulings, and the institution of judicial review enjoys
broad public support, the justices know that both compliance and support could erode if
they make too many unpopular decisions. In some federal systems, efforts to limit federal
power are buttressed by the reality that subnational governments are bulwarks for
national ethnic minorities that are majorities within a particular region. In the United
States, however, the most important national minorities are also minorities within
the states. As a result, minority groups usually do not view state governments as
their protectors, and American federalism has been historically tainted by its
association with racial discrimination against African-Americans. Even state
governments often have an interest in promoting expanded federal power because
they want more federal subsidies and often also support federal laws that limit
economic competition between state governments. NFIB v. Sebelius was thus an
unusual case because 28 state governments had filed lawsuits against a major new federal
program. Courts face much weaker constraints when they strike down state
legislation, especially state laws that are disapproved by national political
majorities. In such situations, dissenting states can do little to retaliate against the
judges. The federal government and sympathetic state governments elsewhere in the
country may even support such judicial intervention.

Warrant: Judicial Review is undemocratic and can perpetuate tyranny of the majority as well;
the only difference is that Judicial Review occurs without the consent of people.

Waldron, Jeremy. The Core of the Case Against Judicial Review. Yale Law Review. 23
March 2006. Web. 5 January 2013. Retrieved from
http://www.yalelawjournal.org/pdf/115-6/Waldron.pdf.

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Let us grant what we acknowledged in Part III, in our discussion of Wollheims
paradox. Democratic institutions will sometimes reach and enforce incorrect
decisions about rights. This means they will sometimes act tyrannically. But the
same is true of any decision process. Courts will sometimes act tyrannically as well.
Tyranny, on the definition we are using, is more or less inevitable. It is just a matter
of how much tyranny there is likely to be, which was the subject of our discussion in
Part IV. Is the tyranny of a political decision aggravated by the fact that it is imposed by a
majority? I leave aside the pedantic point that a court may also reach its decision by
majority voting. Is tyranny by a popular majority (e.g., a majority of elected
representatives, each supported by a majority of his constituents) a particularly egregious
form of tyranny? I do not see how it could be. Either we say that tyranny is tyranny
irrespective of how (and among whom) the tyrannical decision is made, or we say
and this is my viewthat the majoritarian aspect actually mitigates the tyranny,
because it indicates that there was at least one non-tyrannical thing about the
decision: It was not made in a way that tyrannically excluded certain people from
participation as equals. That may seem a little flip, so let me address the question less
provocatively. The most commonly expressed misgiving about unrestrained legislative
authority is that minorities or individuals may suffer oppression in relation to the
majority. They may be oppressed, or discriminated against, or their rights denied and
violated compared to those of the majority, or their interests unduly subordinated to those
of members of the majority (for example, harmed or neglected in a way that justice
condemns). In describing these forms of tyranny, oppression, or injustice, we use the
terms majority and minority. But in this particular context they are not necessarily
terms related to political decision-processes.

Warrant: Judicial Review enables judicial activism, which allows the Court to be biased and
make decisions based on personal opinion.

Slattery, Elizabeth. How to Spot Judicial Activism: Three Recent Examples. Heritage
Foundation. 13 June 2013. Web. 6 June 2013. Retrieved from
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http://www.heritage.org/research/reports/2013/06/how-to-spot-judicial-activism-
three-recent-examples.

Since the late 1930s, the courts have gradually abandoned their proper and
essential role under the Constitution to police the structural limits on government
and neutrally interpret the laws and constitutional provisions without personal bias.
Many judges refuse to interpret the Constitution and statutes according to their
original public meaning (or perhaps lack the understanding of how to do so). Instead,
they seek to impose their personal preferences. But a judge who looks beyond the
text of the Constitution 'looks inside himself and nowhere else.' While the Supreme
Court of the United States should interpret the laws and constitutional provisions
according to their original public meaning, the lower courtsand state courts when
dealing with federal constitutional rightsare bound by the precedents of the
Supreme Court. To the extent that a case presents an unresolved question, lower courts
should likewise give effect to the original public meaning of the text before them.
Although attempts to define 'judicial activism' are often criticized as too broad, too
partisan, or simply 'devoid of content,' a simple working definition is that judicial
activism occurs when judges fail to apply the Constitution or laws impartially according
to their original public meaning, regardless of the outcome, or do not follow binding
precedent of a higher court and instead decide the case based on personal preference. The
proper measure is not whether a judge votes to uphold or strike down a statute in any
given case. Adhering to an original understanding of the law is the only way to
consistently 'minimize or eliminate the judges biases.' At times, this means that
judges must strike down laws that offend the Constitution. Some scholars mistakenly
argue that judges engage in judicial activism whenever they strike down a law, but
judges subjective policy preferences could just as easily lead them to uphold
unconstitutional laws that they favor as to strike down ones that they oppose. In either
situation, judges abdicate their duty of fidelity to the law. Judicial activism is therefore
not in the eye of the beholder. In applying the law as it is written, judges may reach
conclusions that are (or may be perceived to be) bad policy but are nonetheless
correctly decided. Judges are charged not with deciding whether a law leads to good
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or bad results, but with whether it violates the Constitution and, if not, how it is
properly construed and applied in a given case. Labeling as activist a decision that
fails to meet this standard expresses not policy disagreement with the outcome of a case,
but disagreement with the judges conception of his or her role in our constitutional
system.

Warrant: Judicial Activism undermines the Constitution, because it undermines its power of
limiting the government.

Joset, Janelle London. May it Please the Constitution: Judicial Activism and its effect
on Criminal Procedure. Marquette Law Review. 1996 Summer. Web. 6 January
2013. Retrieved from
http://scholarship.law.marquette.edu/cgi/viewcontent.cgi?article=1555&context=
mulr.

In other words, the judge forms a conclusion or has a result in mind, and then
reasons backwards .to justify the desired result. Another name for this process is
judicial activism. By using judicial activism, a court may reach what it believes to
be a 'right' or 'just' result in a particular case. However, the effects of this process
on the Constitution and defendant's rights are not so 'right' or 'Just.' The
Constitution was written to protect citizen's individual rights and make everyone
aware of those rights and the corresponding responsibilities. By altering the
meaning of the Constitution to achieve the result the Court wants to reach, neither
law enforcement, lower courts, nor the people know the scope of their rights and
responsibilities. The Supreme Court must interpret the Constitution, not rewrite it
according to the Justices' own agendas or revise it to reach a certain result. Part II of this
Comment will focus on the constitutional problems created when the Supreme Court
engages in the backward reasoning which constitutes judicial activism, focusing
specifically on the area of criminal procedure. This part examines some of the Court's
landmark cases and how the Court's judicial activism has undermined the
constitutional requirements in the area of criminal procedure. Part III suggests ideas
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to correct the problems created by the Court's judicial activism and offers measures to
help prevent judicial activism in the future. Part III also discusses ways in which to limit
the damage already done by judicial activism.

Analysis: Basically, this is saying that Judicial Review does the opposite of what its supposed
to do. It undermines Checks and Balances and Separation of Powers because it allows the
Judiciary to take power from the legislative branch. Furthermore, the Supreme Court isnt at all
effective at protecting the minority group from tyranny of the majority; this is proven by cases
like Korematsu v United States, Dred Scott v Sanford, Kelo v New London, Roe v Wade; the only
difference is that when the Supreme Court does it, theres no consent. Further, because of the
structure of politics in the US, the Supreme Court and its power of Judicial review prevents to
uphold states rights empirically. Basically, its gotten to a point where the Supreme Court is
highly political; it no longer simply determines what the Constitution means, and how laws
interact with it, but instead uses power to change policy, and the power of judicial review simply
furthers these issues.
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!;< = <'+.-+). 3#"('0-

Argument: Because conditions in the states covered by section four are no longer among the
worst offenders in terms of discrimination, Section four coverage is unwarranted and violates the
Constitution by unjustly limiting state autonomy.

Warrant: The coverage formula in section four is based on data thats forty years old.

Liptak, Adam. Supreme Court Invalidates Key Part of Voting Rights Act. New York
Times. 25 June 2013. Web. 3 January 2013. Retrieved from
http://www.nytimes.com/2013/06/26/us/supreme-court-
ruling.html?pagewanted=all

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 determined which states must receive clearance from
the Justice Department or a federal court in Washington before they made minor
changes to voting procedures, like moving a polling place, or major ones, like
redrawing electoral districts. Section 5, which sets out the preclearance requirement,
was originally scheduled to expire in five years. Congress repeatedly extended it: for five
years in 1970, seven years in 1975, and 25 years in 1982. Congress renewed the act in
2006 after holding extensive hearings on the persistence of racial discrimination at the
polls, again extending the preclearance requirement for 25 years. But it relied on data
from the 1975 reauthorization to decide which states and localities were covered.
The current coverage system, Chief Justice Roberts wrote, is 'based on 40-year-old
facts having no logical 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.

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Warrant: Currently, many of the states that were affected by Section 4 were able to reverse the
trends of voting disparities.

Spakovsky, Hans A. Von. The Voting Rights Act after the Supreme Courts Decision in
Shelby County. Heritage Foundation. 18 July 2013. Web. 3 January 2013.
Retrieved from http://www.heritage.org/research/testimony/2013/08/the-voting-
rights-act-after-the-supreme-courts-decision-in-shelby-county

As an example, in Georgia and Mississippi, which had such high
disenfranchisement rates in 1964, black registration actually exceeded white
registration in the 2004 election, just two years before Congress was considering the
renewal of Section 5. Black registration exceeded white registration by 0.7 percent
in Georgia and by 3.8 percent in Mississippi. The Census Bureaus May 2013 report on
the 2012 election showed that blacks voted at a higher rate than whites nationally (66.2
percent vs. 64.1 percent). That same report shows that based on Census regional
data, black voting rates exceeded those of whites in Virginia, South Carolina,
Georgia, Alabama, and Mississippi, which were covered in whole by Section 5, and
in North Carolina and Florida, portions of which were covered by Section 5.
Louisiana and Texas, which were also covered by Section 5, showed no statistically
significant disparity between black and white turnout. Minority registration and
turnout are consistently higher in the formerly covered jurisdictions than in the rest
of the nation. No one can rationally claim that there is still widespread, official
discrimination in any of the covered states, or that there are any marked differences
between states such as Georgia, which was covered, and states such as Massachusetts,
which was not covered (except that Massachusetts has worse turnout of its minority
citizens). As the Supreme Court approvingly noted and as Judge Stephen F.
Williams pointed out in his dissent in the District of Columbia Court of Appeals,
jurisdictions covered under Section 4 have 'higher black registration and turnout'
than noncovered jurisdictions. Covered jurisdictions also 'have far more black
officeholders as a proportion of the black population than do uncovered ones.' In a
study that looked at lawsuits filed under Section 2 of the VRA, Judge Williams found that
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the 'five worst uncovered jurisdictionshave worse records than eight of the covered
jurisdictions.'
*original source includes ellipses

Warrant: Currently, the coverage formula needs to be changed because many states with high
disparities arent covered.

The Formula Behind the Voting Rights Act. 22 June 2013. Web. 3 January 2013.
Retrieved from http://www.nytimes.com/interactive/2013/06/23/us/voting-rights-
act-map.html?_r=0

During oral arguments, Chief Justice John G. Roberts Jr. noted that
Massachusetts, a state that is not covered, had the greatest disparity in registration
between whites and blacks, referring to data from 2004. While that data comes with
a high margin of error, five states none covered had registration gaps of at
least five percentage points in all of the last three elections.
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!"#$%&'( *+&,-. 867


Warrant: Because the states that were covered under Section 4 are no longer clearly
discriminating in voting practiecs, Congress no longer has the jurisdiction to violate the
autonomy of the states.

Shelby County V. Holder. Oyez Project of the Chicago-Kent College of Law. 2013.
Web. 3 January 2013. Retrieved from http://www.oyez.org/cases/2010-
2019/2012/2012_12_96.

Yes, Section 4 of the Voting Rights Act is unconstitutional. Chief Justice John G.
Roberts, Jr. delivered the opinion of the 5-4 majority. The Court held that Section 4 of
the Voting Rights Act imposes current burdens that are no longer responsive to the
current conditions in the voting districts in question. Although the constraints this
section places on specific states made sense in the 1960s and 1970s, they do not any
!"# %"&'()*+, -*. /0#12, 3)4"'-"5 6789


!"#$%&'( *+&,-. 868
longer and now represent an unconstitutional violation of the power to regulate
elections that the Constitution reserves for the states. The Court also held that the
formula for determining whether changes to a states voting procedure should be
federally reviewed is now outdated and does not reflect the changes that have
occurred in the last 50 years in narrowing the voting turnout gap in the states in
question. In his concurring opinion, Justice Clarence Thomas argued that Section 5 of
the Voting Rights Act is unconstitutional in addition to Section 4. He wrote that the
blatant discrimination against certain voters that Section 5 was intended to prohibit
is no longer evident. Without such extraordinary circumstances, Congress cannot
constitutionally justify placing the burden of Section 5 on the states in question.

Analysis: The argument here is very simple; essentially, the coverage formula of section four no
longer accurately targets states with discriminatory voting practices. Thus, Congress no longer
has authority to infringe on the autonomy of the states, because the states arent acting to violate
the constitution.
!"# %"&'()*+, -*. /0#12, 3)4"'-"5 6789


!"#$%&'( *+&,-. 866
%:6 ; <'+.-+). 3#"('0-

Answer: The coverage formula is still accurate, and relevant in todays voting system.

Warrant: The vast majority of states covered under section four are the most prejudiced states
in the United States.

The Formula Behind the Voting Rights Act. 22 June 2013. Web. 3 January 2013.
Retrieved from http://www.nytimes.com/interactive/2013/06/23/us/voting-rights-
act-map.html?_r=0

"Law professors at the University of California, Davis, and the University of
Connecticut have created an estimate of prejudice using survey data from 2008. The
National Annenberg Election Survey asked people to rank the intelligence,
trustworthiness and work effort of different groups of people, on a scale from 0 to
100. Christopher S. Elmendorf and Douglas M. Spencer estimated prejudice based
on how people rate their own ethnic group, compared with how they rate blacks. 'It
may be argued that Virginia and perhaps South Carolina should not be covered, but
the rest of the covered states in the Deep South top the list of the most prejudiced
states by anti-black stereotyping,' the professors found. "
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!"#$%&'( *+&,-. 86:


Warrant: Another metric of discrimination, lawsuits settled or prosecuted under section two
regarding discrimination, shows that the vast majority of section four states are sued more than
most other states.

The Formula Behind the Voting Rights Act. 22 June 2013. Web. 3 January 2013.
Retrieved from http://www.nytimes.com/interactive/2013/06/23/us/voting-rights-
act-map.html?_r=0

"Some voting discrimination suits, including those with a court-approved
settlement, are resolved without a published opinion. Judge David S. Tatel, writing
for the majority in the appeals court's decision, found that 'the difference between
covered and non-covered jurisdictions becomes even more pronounced,' when
including cases settled in favor of minority voters. Critics of this metric, as well as one
that includes only published cases, argue that adjusting for population is unfair to small
states and that patterns have changed since the data was assembled."
!"# %"&'()*+, -*. /0#12, 3)4"'-"5 6789


!"#$%&'( *+&,-. 869


Warrant: The statistics used to support the idea that non-section four states have higher voting
disparities is based on faulty statistics.

Silver, Nate. In Supreme Court Debate on Voting Rights Act, a Dubious Use of
Statistics. New York Times. 7 March 2013. Web. 3 January 2013. Retrieved from
http://fivethirtyeight.blogs.nytimes.com/2013/03/07/in-supreme-court-debate-on-
voting-rights-act-a-dubious-use-of-statistics/

"As much as it pleases me to see statistical data introduced in the Supreme Court, the act
of citing statistical factoids is not the same thing as drawing sound inferences from them.
If I were the lawyer defending the Voting Rights Act, I would have responded with two
queries to Chief Justice Roberts. First, are Mississippi and Massachusetts
representative of a broader trend: do states covered by Section 5 in fact have higher
rates of black turnout on a consistent basis? And second, what if anything does this
demonstrate about the efficacy of the Voting Rights Act? One reason to be
suspicious of the representativeness of Mississippi and Massachusetts is the high
!"# %"&'()*+, -*. /0#12, 3)4"'-"5 6789


!"#$%&'( *+&,-. 86:
margin of error associated with these calculations, as noted by Nina Totenberg of
NPR. Like other polls, the Current Population Survey is subject to sampling error, a
result of collecting data among a random subsample of the population rather than
everyone in the state. In states like Massachusetts that have low African-American
populations, the margin of error can be especially high: it was plus-or-minus 9.6
percentage points in estimating the black turnout rate in 2004, according to the
Census Bureau. Even in Mississippi, which has a larger black population, the
margin of error was 5.2 percentage points. As a general matter, I would prefer that
everyone be more careful when citing statistical data, and be more explicit about
describing the potential sources of error and uncertainty associated with the calculations.
But the headline associated with Ms. Totenbergs article at NPR makes a strong claim: it
asserts that Chief Justice Roberts has 'misconstrued' the data by ignoring the margin of
error."

Warrant: The bail in and bail out provisions of the Voting Rights Act allow the law to be
flexible to modern day discrimination.

Persily, Nathaniel and Mann, Thomas. Shelby County v. Holder and the Future of the
Voting Rights Act. Governanace Studies and the Brookings Institution. August
2013. Web. 3 January 2013. Retrieved from
http://www.brookings.edu/~/media/research/files/papers/2013/08/09%20shelby%
20v%20holder%20policy%20mann/persily_mann_shelby%20county%20v%20ho
lder%20policy%20brief_v9.pdf

"More to the point, the dissent would have found the reauthorized VRA
constitutional. It emphasized the fact that such reauthorizations of laws previously
upheld would likely pass constitutional muster yet again. In such admittedly rare
cases, Congress assembled a record for the initial legislation, and it placed a time
limit on the legislation itself. The continued success of the initial legislation, which
would likely inhibit the development of a record of constitutional violations
comparable to the original, should lower the constitutional bar for the reauthorized
!"# %"&'()*+, -*. /0#12, 3)4"'-"5 6789


!"#$%&'( *+&,-. 86:
version. For the dissent, the success of the law should not be held against it in the
constitutional analysis. For the majority, such a position would create a perpetual license
for excessive deference well after the original law had outlived its usefulness as a
deterrent for unconstitutional action. Finally, whereas the majority considered the
coverage formula calcified and outdated, the dissent viewed other aspects of the law
as guaranteeing constitutionally relevant flexibility. The law allowed covered
jurisdictions to bail out and for courts to bail in uncovered jurisdictions
pursuant to a finding of unconstitutional voting discrimination. Both of those
provisions were important features for the dissents view that the law as a whole did
not sweep so broadly as to be considered irrational."

Analysis: The answer to the argument is pretty simple; basically, using other measures of
discrimination show that its still significant in the South. This means that the formula is still
relevant, and thus is Section four is warranted. Further, the bail in and bail out provisions show
that the bill is flexible; if these states or counties do improve, then they can get out of section
four coverage legally; its a flexible law thats still relevant. Lastly, the measurements that say
that other states have higher discrimination can be faulty due to error in statitics.
!"# %"&'()*+, -*. /0#12, 3)4"'-"5 6789


!"#$%&'( *+&,-. 86:
PRO Section 2 Necessary

Argument: Section two provides minority groups with mechanisms to protect their right to vote,
meaning that the 14
th
and 15
th
amendment are protected.

Warrant: Section two is more effective because it covers the entire US, and to any acts of racial
vote denial.

The South After Shelby County. Law School at the University of Chicago. October
2013. Web. 4 January 2013. Retrieved from
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2336749

For almost half a century, minority representation in America rested on two legal
pillars. The first, Section 2 of the Voting Rights Act (VRA), applies nationwide and
prohibits practices that 'result[] in a denial or abridgement of the right . . . to vote
on account of race or color.' It is a relatively conventional provision that creates a
cause of action for plaintiffs who have been subjected to racial vote dilution or
denial. The second, Section 5 of the VRA, applies only to the (mostly southern)
jurisdictions specified in Section 4, and bans practices that have the purpose or effect of
'denying or abridging the right to vote on account of race or color.' Despite its almost
identical language, Section 5 is a highly unusual provision that prevents covered
jurisdictions from implementing any changes to their voting laws unless they first have
convinced the Department of Justice (DOJ) or a federal court that the changes will not
worsen the electoral position of minority voters.
*original source includes ellipses

Warrant: Section two has historically been used to protect voting rights; further, because it can
be offensive and not just defensive like section 5, its been effective in actually expanding the
rights of minority voters.
!"# %"&'()*+, -*. /0#12, 3)4"'-"5 6789


!"#$%&'( *+&,-. 86:
The South After Shelby County. Law School at the University of Chicago. October
2013. Web. 4 January 2013. Retrieved from
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2336749

Because it can be used not just defensively but also for offense, Section 2 deserves
much of the credit for the growing minority presence in the halls of power in recent
years. Following the 1982 amendments to the provision, plaintiffs prevailed in
many Section 2 suits throughout the country, usually obtaining as remedies new
ability districts. The result of this wave of litigation was 'a quantum increase in
minority representation' in the 1990s. In the U.S. House of Representatives, for
example, the number of African Americans elected from the South jumped from
five to seventeen. In the years since this representational spike, Section 5 has played
a vital role in preserving the gains made by minorities. But it was primarily Section
2, not Section 5, that made the gains possible in the first place.

Warrant: Section two has already been upheld by the Supreme Court as protecting the 15
th

amendment.

Section Two of the Voting Rights Act. US Department of Justice. Retrieved from
http://www.justice.gov/crt/about/vot/sec_2/about_sec2.php

Section 2 of the Voting Rights Act of 1965 prohibits voting practices or procedures that
discriminate on the basis of race, color, or membership in one of the language minority
groups identified in Section 4(f)(2) of the Act. Most of the cases arising under Section 2
since its enactment involved challenges to at-large election schemes, but the section's
prohibition against discrimination in voting applies nationwide to any voting standard,
practice, or procedure that results in the denial or abridgement of the right of any citizen
to vote on account of race, color, or membership in a language minority group. Section 2
is permanent and has no expiration date as do certain other provisions of the Voting
Rights Act. In 1980, the Supreme Court held that the section, as originally enacted
by Congress in 1964, was a restatement of the protections afforded by the 15th
!"# %"&'()*+, -*. /0#12, 3)4"'-"5 6789


!"#$%&'( *+&,-. 86:
amendment. Mobile v. Bolden, 446 U.S. 55 (1980). Under that standard, a plaintiff
had to prove that the standard, practice, or procedure was enacted or maintained,
at least in part, by an invidious purpose. In 1982, Congress extended certain provisions
of the Act such as Section 5 that were set to expire, and added protections for voters who
required assistance in voting. At the same time, it examined the history of litigation
under Section 2 since 1965 and concluded that Section 2 should be amended to
provide that a plaintiff could establish a violation of the section if the evidence
established that, in the context of the 'totality of the circumstance of the local
electoral process,' the standard, practice, or procedure being challenged had the
result of denying a racial or language minority an equal opportunity to participate
in the political process.

Warrant: Section two enables minority groups to prosecute if redistricting undermines their
voting power or their ability to vote for their preferred candidate.

Whitaker, L. Paige. Congressional Redistricting and the Voting Rights Act: A Legal
Overview. Congressional Research Service. 30 August 2013. Web. 7 January
2013. Retrieved from https://www.fas.org/sgp/crs/misc/R42482.pdf.

Majority-Minority District Requirement
Under certain circumstances, the creation of one or more majority-minority
districts may be required in a congressional redistricting plan. A majority-minority
district is one in which a racial or language minority group comprises a voting
majority. The creation of such districts can avoid racial vote dilution by preventing
the submergence of minority voters into the majority, which can deny minority
voters the opportunity to elect a candidate of their choice. In the landmark decision
Thornburg v. Gingles,9 the Supreme Court established a three-prong test that
plaintiffs claiming vote dilution under Section 2 must prove: First, the minority group
must be able to demonstrate that it is sufficiently large and geographically compact to
constitute a majority in a single-member district.... Second, the minority group must be
able to show that it is politically cohesive.... Third, the minority must be able to
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!"#$%&'( *+&,-. 8:7
demonstrate that the white majority votes sufficiently as a bloc to enable itin the
absence of special circumstances, such as the minority candidate running unopposed
usually to defeat the minoritys preferred candidate.10
The Court also discussed how, under Section 2, a violation is established if based on
the totality of the circumstances and as a result of the challenged practice or
structure plaintiffs do not have an equal opportunity to participate in the political
processes and to elect candidates of their choice.11 In order to facilitate determination
of the totality of the circumstances the Court listed the following factors, which
originated in the legislative history accompanying enactment of Section 2:

*Original Source includes ellipses

Analysis: This argument is basically saying that as long as the 14
th
and 15
th
amendment have
mechanisms that allow equal protection and access to voting to be enforced, than the Shelby
ruling is constitutional. Thus, because section allows those two amendments to function because
it provides a mechanism to defend the rights of people who are discriminated against because
they dont have access to voting, the Shelby ruling is rightly Constitutional, and section four is
unconstitutional because it achieves the same goals but at the same time violates state
sovereignty.


!"# %"&'()*+, -*. /0#12, 3)4"'-"5 6789


!"#$%&'( *+&,-. 8:8
A/2 - Section 2 Necessary

Answer: Section 2 is likely to be challenged and is less effective than Section 5 because its after
the fact, places significant burdens on those prosecuting to pay, and is likely to be challenged.

Warrant: Section 2 is likely to be challenged in court and limited in its power because
Republicans oppose it, and feel they have momentum after the Shelby case.

Roth, Zachary. Conservatives prepare to finish off Voting Rights Act. CNBC. 19 July
2013. Web. 4 December 2013. Retrieved from
http://www.msnbc.com/msnbc/conservatives-prepare-finish-voting-ri

'Section 2 is a ripe target,' Christopher Elmendorf, a law professor at the
University of California, Davis, who has written in depth on the provision, told
msnbc. If the court were to strike down or substantially weaken Section 2, the
Voting Rights Act would technically still exist, and would retain a few historically
important functionsits ban on poll taxes and literacy tests, for instance. But, on top of
the demise of Section 5, the most successful civil rights law in the nations history
would be all but a dead letter. 'Theres no question that Section 2 and 5 together are
really the heart of the law,' Justin Levitt, a professor at Loyola Law School, who
testified at Wednesdays Senate hearing on fixing the Voting Rights Act, told msnbc.
Unlike Section 5, Section 2which lets victims of racial discrimination file suitis an
after-the-fact remedy, making it a less effective tool for stopping race bias in voting. Still,
its the strongest protection that the Voting Rights Act has left, and the weeks since the
Supreme Courts ruling in Shelby County v. Holder have made clear that Section 2 now
figures to play a crucial role in legal efforts to defend voting rights, including in cases
against voter ID, cutbacks to early voting, and other Republican-backed voting
restrictions. Days after the decision came down, opponents of Texas voter ID law, who
last year succeeded in blocking the measure under Section 5, filed a new lawsuit under
Section 2. And Attorney General Eric Holder announced Tuesday that in Section 5s
!"# %"&'()*+, -*. /0#12, 3)4"'-"5 6789


!"#$%&'( *+&,-. 8:6
absence, the Justice Department would shift resources toward Section 2 cases. The
argument against Section 2 is that by banning actions with discriminatory results,
not just intent, it goes beyond what the Constitution empowers Congress to do. The
14
th
and 15
th
Amendments explicitly ban only intentional discrimination. Election
lawyers say its unlikely that even the Roberts Court would fully sign onto that view
and strike down Section 2 on its face. Much more plausible is that the justices could
progressively narrow it by requiring more evidence that intentional discrimination
played a role in the action being challenged. Already, voting lawyers say, Section 2 is
almost never used without some evidence of an intent to discriminatea local history of
discrimination, for instance, or race-based appeals by candidates in an election. Thats
why efforts to use Section 2 to bar state laws that disenfranchise felonswhich
inarguably hurt racial minorities more than whiteshavent succeeded. And, said
William Baude, a professor at Stanford Law School and a former Roberts clerk, its
one reason to think that Section 2 also will fail to stop voter ID laws like Texas. But
a concerted effort by conservatives could lead to that threshold for evidence of
intent being significantly raisedultimately making Section 2 useless for stopping
any but the most blatant acts of racial bias.

Warrant: Section 2 is less effective because its expensive and difficult for minority groups to
prosecute, and only happens after a harm occurs.

Resolution. American Bar Association. 12-13 August 2013. Web. 3 December 2013.
Retrieved from http://www.sfbar.org/forms/newsroom/basf-resolution-
aba-voting2013.pdf

Litigating a Section 2 case is also far more expensive and time-consuming than a
Section 5 preclearance case, even when the jurisdiction chooses to go to court rather
than opting for administrative preclearance, which is by far the cheapest and
quickest alternative. In addition, Section 5 also requires covered jurisdictions to
inform the Department of Justice of all of their voting changes, to the great benefit
of the public. Without this systematic information flow, it will be nearly impossible
!"# %"&'()*+, -*. /0#12, 3)4"'-"5 6789


!"#$%&'( *+&,-. 8::
for interested parties to be aware of new laws and procedures at all levels of
government until they are implemented, when it is often too late to combat them
without deleterious effects on voters and on the electoral process itself. Whether by
enacting a new coverage formula under Section 4, strengthening the litigation remedy
available under Section 2, or expanding the 'bail-in' provision under Section 3 (or some
combination of these concepts), Congress must act to redress the severe blow the
Supreme Court dealt voting rights in Shelby County. The ABA should be on record in
support of the continuing vitality of the Voting Rights Act, as it has been for many
years.

Warrant: Section 2 cant prevent racial gerrymandering, which was only covered under section
four.

Stephanopoulos, Nicholas. The South After Shelby County. Law School at the
University of Chicago. October 2013. Web. 4 January 2013. Retrieved from
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2336749

Turning next to vote dilution, there also are three major differences between the
electoral districts to which Section 2 applies and those protected by Section 5. Section 2
does not extend to bizarrely shaped districts while Section 5 does. Section 2 does not
encompass districts that merge highly dissimilar minority communities while
Section 5 again does. And Section 2 does not cover districts whose minority voters
comprise less than 50 percent of their total population while Section 5 does once
more. These differences stem from a series of Supreme Court decisions narrowing
the scope of Section 2, and they mean that certain districts that previously were
shielded by Section 5 now no longer will enjoy legal protection. Jurisdictions now
will 10 have the ability to eliminate districts that are shaped too strangely, that have
overly heterogeneous minority populations, or that have minority populations that
are too small, to qualify for Section 2 coverage. How many districts fall into these
categories? To answer this question, I first identified all of the districts that used to be
protected by Section 5 in the nine southern and south western states to which the
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!"#$%&'( *+&,-. 8:9
provision formerly applied in large part or in full. There are 404 congressional and
state legislative districts that meet these criteria. Of these, twenty-two are so non-
compact that they likely can be dismantled without violating Section 2. This number
is small because jurisdictions seem to have learned from the redistricting battles of
the 1990s, when the Court struck down several strangely shaped districts. But a
much larger number of districts, 146 in total, contain minority populations that are
so heterogeneous that Section 2 may not extend to them. The role of such
heterogeneity in Section 2 doctrine is not yet settled, but if it is a binding requirement
then minority representation in the South could be slashed in the wake of Shelby County.
Lastly, only 17 previously covered districts have minority voter proportions below 50
percent. Here too jurisdictions appear to have taken to heart the lessons of earlier Court
decisionsand also to have mastered the art of crafting majority-minority districts while
simultaneously advancing partisan interests.

Warrant: Section two is statistically less effective than section five at countering discrimination,
and with the striking down of section four (which enables section five) minority groups are now
at risk of losing gains made previously.

Stephanopoulos, Nicholas. The Future of the Voting Rights Act. Slate. 23 October
2013. Web. 3 January 2013. Retrieved from
http://www.slate.com/articles/news_and_politics/jurisprudence/2013/10/section_2
_of_the_voting_rights_act_is_more_effective_than_expected_new_research.html

How effective is Section 2 at protecting minorities voting rights compared with Section
5? Surprisingly, theres not much research out there on this question. To figure out the
answer, I analyzed data about all districts in the South and all VRA lawsuits around the
country. Heres the gist of what I found: Section 2 is worse than Section 5 at stopping
redistricting that breaks up districts in which minority voters are numerous enough
to elect their preferred candidates. But its better at blocking voting restrictions
than is commonly realized (though not as good as Section 5). My study also suggests
ways to amend Section 2 to shore up its weaknesses. The changes Im proposing, I think,
!"# %"&'()*+, -*. /0#12, 3)4"'-"5 6789


!"#$%&'( *+&,-. 8:;
would be less controversial, and more likely to survive a court challenge,
than other suggested responses to the Supreme Courts decision. At argument last winter,
Justice Anthony Kennedy remarked that 'its not clear to me that theres that much
difference' between Section 2 and Section 5 as to redistricting. It turns out hes wrong. I
found that there are actually dozens of districts in the South (both in Congress and
in state legislatures) that Section 5 used to protect, but that states can now eliminate
without violating Section 2. Thats because Section 5 used to insulate all districts in
which minorities can elect their preferred candidates from any major changes.
Section 2, on the other hand, doesnt apply to districts that are strangely shaped or
whose minority populations fall below 50 percent or are too socioeconomically
varied. These kinds of districts can now be dismantled with impunity. In all, there
are 167 districts across the South that used to be protected by Section 5 but that are
now in jeopardy. Looking state by state, Georgia and Texas lead the pack with
about three dozen newly vulnerable districts each. If all of these districts were
replaced with ones in which minorities no longer had the electoral power to elect
their preferred candidates, as is now possible, many of the gains that blacks and
Hispanics have made in recent years would disappear. Wed be back in a world in
which successful minority politicians were a rarity.

Analysis: These argument, simply said, are just saying that section two is not as effective as
section four was. It places significant burdens because the harm has to happen before prosecution
can happen, and it forces people who have been discriminated against, racial minorities most
often, to pay for their own case, shifting the burden away from the government, who has
significantly more resources. Basically, the argument is that this isnt enough to uphold the
burden provided by the 14
th
and 15
th
amendment of equal protection and access to voting.
!"# %"&'()*+, -*. /0#12, 3)4"'-"5 6789


!"#$%&'( *+&,-. 8:;
!<= > 8?
+@
%()*.()*+ AB#0-+B#*, !")C)*+). 45 D)1+B#* :

Argument: Section 3 is unaddressed by Shelby County v. Holder and is actually the section that
most consistently addresses cases of voter disenfranchisement.

Warrant: Section 3 of the Voting Rights Act was put in place to be able to target pockets of
discrimination that exist within the country and not covered by the original Section 4. Section 3
is critical to the continuation of fighting discrimination. Because Section 3 is included, 15
th

Amendment violations will not increase as a result of the case ruling.

Crum, Travis. "The Voting Rights Act's Secret Weapon: Pocket Trigger Litigation and
Dynamic Preclearance." Yale Law Journal. 119.1992 (2010): 1994-2038. Web. 3 Jan.
2014. < http://www.yalelawjournal.org/the-yale-law-journal/note/the-voting-rights-
act's-secret-weapon:-pocket-trigger-litigation-and-dynamic-preclearance/>

Commonly called the bail-in mechanism or the pocket trigger, section 3 authorizes
federal courts to place states and political subdivisions that have violated the
Fourteenth or Fifteenth Amendments under preclearance. Using this remedial
provision, the Department of Justice (DOJ) and civil rights groups can redefine the
preclearance regime through litigation. Designed to trigger coverage in pockets of
discrimination missed by section 5s formula, section 3 was included in the original
Voting Rights Act.

Analysis: This is a goldmine for Pro teams who wish to deviate slightly from the stock
Constitutional debate that will be the norm in this topic. This instead discusses a little-known
section of the Voting Rights Act, Section 3. Section 3 allows for preclearance to be achieved on
a case-by-case basis with none of the constitutional problems that arise from section 4s formula.
This is excellent for substantiating the stock arguments of constitutionality and allowing pro
teams to address concerns about increased 15
th
Amendment violations raised by con teams.

!"# %"&'()*+, -*. /0#12, 3)4"'-"5 6789


!"#$%&'( *+&,-. 8:;
Argument: The pocket trigger can more accurately target instances of voter disenfranchisement,
and thus continue the protection of Constitutional right to vote.

Warrant: The pocket trigger is in fact a much better avenue for the protection of voters and the
prevention of voter disenfranchisement because it is dynamic and does not trap states inside of
the formula. This means that 14
th
Amendment violations are actually less of a concern as a result
of the court ruling.

Crum, Travis. "The Voting Rights Act's Secret Weapon: Pocket Trigger Litigation and
Dynamic Preclearance." Yale Law Journal. 119.1992 (2010): 1994-2038. Web. 3
Jan. 2014. < http://www.yalelawjournal.org/the-yale-law-journal/note/the-voting-
rights- act's-secret-weapon:-pocket-trigger-litigation-and-dynamic-preclearance/>

The pocket trigger replaces a static preclearance regime with a dynamic one. In its
youth, the coverage formula was defined by revision and experimentation. The 1970 and
1975 reauthorizations modified the coverage formulas two proxies for discrimination by
updating election dates and adding protections for language minorities. The original
bailout process was used more frequently, given that it permitted a covered jurisdiction to
bail out through a showing that it had not used an unlawful test or device. Frozen in time
since 1975, the contemporary coverage formula fights yesterdays problems.
Through iterative litigation, the pocket trigger can establish a dynamic preclearance
regime, targeting todays constitutional violators. Indeed, the pocket trigger
enhances the Acts impact, creating additional incentives to bring suit. And by
transferring coverage determinations from Congress to the courts, the pocket
trigger empowers minority communities to bargain with and target those
jurisdictions they determine should be bailed-in.

%*-05,<,= This piece of evidence perfectly explains why Section 3 is actually a much better
avenue for attempting to rectify violations of voting rights than Section 4. It allows for lawsuits
against areas of the country that have actually committed voter disenfranchisement, instead of
!"# %"&'()*+, -*. /0#12, 3)4"'-"5 6789


!"#$%&'( *+&,-. 8:;
just a general blanket enforcement of preclearance. This is good for Pro teams who can argue
that voter disenfranchisement can still be preempted even if Section 4 is invalidated.
Argument: Section 3 has no constitutional concerns because complaints are sent to the court
instead of the DOJ or other independent regulatory bodies, thus mitigating the fear of 15
th
and
14
th
Amendment violations.

Warrant: Section 3 allows for the inclusion of districts instead of entire states and therefore is
much more likely to satisfy concerns about constitutionality and more effectively address
instances of voter disenfranchisement, so the 15
th
Amendment can be protected while still
ensuring adherence to principle of federalism.

Ellement, Michael. "Preclearance Without Statutory Change: Bail-In Suits Post-Shelby
County." Yale Law & Policy Review. InterAlia, 7 Sep 2013. Web. 3 Jan 2014.
<http://ylpr.yale.edu/inter_alia/preclearance-without-statutory-change-bail-suits-
post-shelby-county>

The 3 bail-in provision does not rely on the 4 formula, or any other legislative
calculation. Rather, jurisdictions become subject to preclearance under 3 upon an
individualized determination by a court, and only after the jurisdiction has been
found in violation of the Fourteenth or Fifteenth Amendment. In this way, the 3
bail-in process is more likely to satisfy constitutional concerns. A jurisdiction bailed
in via 3 can hardly complain it is not being treated equally by the federal government,
since it will have had an opportunity to independently litigate before a neutral arbiter
whether it should be subject to preclearance. Further, if a jurisdiction is bailed in, its
future voting changes will be submitted to the court imposing preclearance. This too
is different than 5, where jurisdictions were forced to choose between the
Department of Justice (DOJ) and the District of Columbia District Court. The
choice between submitting changes to two different federal decision makers, both
located in the District of Columbia, has been a point of contention since 5s
enactment. The ability of states to litigate their 3 preclearance requests in the
federal court located in their state cures this concern.
!"# %"&'()*+, -*. /0#12, 3)4"'-"5 6789


!"#$%&'( *+&,-. 8:;

Analysis: This evidence is excellent for indicating why precisely Section 3 is so distinctly better
than Section 5 for targeting instances of voter disenfranchisement. Ellement explains why 1)
Section 3 is less likely to violate Constitutionality but also 2) that Section 3 more effectively
targets the areas where voter disenfranchisement occurs.

Argument: Section 3 has worked in the past to bring in new states to preclearance and can
continue to work in the future with the invalidation of Section 4.

Warrant: Section 3, because it has worked in the past, can continue to work in the future
particularly because Section 5 is still left in place by the Supreme Court decision.

Denniston, Lyle. "Opinion Recap: Voting Law in Deep Peril." SCOTUSblog. Bloomberg
Law, 25 Jun 2013. Web. 3 Jan 2014.
<http://www.scotusblog.com/2013/06/opinion-recap-voting-law-in-deep-peril/>

There is another provision of the law, potentially a back-up (Section 3), that allows
the government to go to court to ask that a new state or local government be put
under Section 5 because of its more recent history in dealing with minority
voters. Two states have been brought under Section 5 that way Arkansas and
New Mexico along with several county governments, including Los Angeles
County in California. The Courts main opinion did not even mention Section 3, but
the dissenters referred to it briefly as a bail-in mechanism that has worked. If a
challenger now seeks to employ that provision, it presumably will have to show that
bias is still a present-day problem there.

%*-05,<,= This is perfect evidence for Pro teams to prove that Section 3 has actually worked in
the past. Now, not only can pro teams argue that section 3 has the potential to replace Section 4,
but that it actually already has replaced Section 4 in many instances with none of the
constitutional problems.

!"# %"&'()*+, -*. /0#12, 3)4"'-"5 6789


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Answer: Section 3 could be effective, but is not because of the high burden of proof placed on
appellants to prove that their right to vote is violated.

Warrant: It is incredibly difficult to prove that voting laws are passed with the intention of
being racist, and that is what Section 3 of the Act requires appellants to prove. This is much more
difficult than Section 5 which only requires that a change to voting law have racist effects.

Serwer, Adam. "The Secret Weapon to Save the Voting Rights Act." MSNBC., 02 Oct
2013. Web. 3 Jan 2014. <http://www.msnbc.com/politicsnation/the-secret-
weapon-could-save-the-voting>

That high standard of proof is also part of what limits the effectiveness of Section 3
as a replacement for Section 4. To impose preclearance on a jurisdiction not covered
by the now-defunct Section 4 formula, you have to prove that officials intended to
discriminate. Under the old formula, all that had to be proven was that the election
law changes would have discriminatory effectsprecisely because most people are
smart enough to hide when theyre deliberately trying to discriminate. In Texas, state
officials werent that smart. Nevertheless, the requirement that deliberate discrimination
be proven means that it will be very difficult to subject states that try to
disenfranchise minority voters to preclearance, because all they need is a superficial
race-neutral reason for making the change. What youre likely to see in states
where these actions are brought is states trying to avoid an adverse Section 3 ruling by
saying, our real intent here is to hurt Democrats. Since thats our intent, thats not a racial
intent and thats not forbidden by the Constitution, says Brenda Wright, a legal expert
with liberal think tank Demos. Judges might not subject jurisdictions to preclearance
even if deliberate discrimination is proven, or they might do so only in areas related
to the discriminatory policy.

!"# %"&'()*+, -*. /0#12, 3)4"'-"5 6789


!"#$%&'( *+&,-. 898
Analysis: This is actually a very good answer to Pro teams who try to claim that Section 3 can
act as a replacement for Section 4. Having productive debate about the use of Section 3 requires
nuanced argumentation on the part of both teams. To adequately respond to claims that Section 3
can function effectively, you have to have a good understanding of how laws function, and this
particular law functions by proving that lawmakers intend to discriminate, which is near
impossible to prove.

Answer: It is much more difficult to suit under Section 3 than it is to suit under Section 4.

Warrant: Any lawsuits brought to courts must prove substantial intention to discriminate on the
part of the individuals who passed the law in the first place, which is often incredibly difficult to
determine. Additionally, federal judges may feel like they do not want to infringe upon local
elections.

Ellement, Michael. "Preclearance Without Statutory Change: Bail-In Suits Post-Shelby
County." Yale Law & Policy Review. InterAlia, 7 Sep 2013. Web. 3 Jan 2014.
<http://ylpr.yale.edu/inter_alia/preclearance-without-statutory-change-bail-suits-
post-shelby-county>

There are still a number of hurdles to increased 3 litigation post-Shelby County.
The most significant is establishing a violation of the Fourteenth or Fifteenth
Amendment. For 3 to apply, it is insufficient that a jurisdiction be found to have
violated the VRA or another voting rights statute. Rather, a specific finding must be
made that the jurisdiction violated the Constitution. This is a demanding
requirement, and will likely necessitate proof that a jurisdiction intended to
discriminate on the basis of race. The 3 process is also at the mercy of the federal
judiciary. Litigants will have to convince a federal judge not only that a violation has
occurred, but also that the court should require the jurisdiction to submit future
voting changes to the court. Again, this is a challenging burden for litigants, since
some judges will prefer to stay out of state political affairs.

!"# %"&'()*+, -*. /0#12, 3)4"'-"5 6789


!"#$%&'( *+&,-. 896
Analysis: This evidence once again proves just how difficult it will be for litigants to bring suit
against legislatures that pass laws with discriminatory effects. Now the litigants must adequately
prove that the legislature that passed the law passed it not only knowing that it might have
discriminatory outcome, but wanting it to have discriminatory outcomes. This means that
litigants will have a very difficult time proving discrimination.

Answer: Section 3 of the Voting Rights Act leaves much of the preclearance up to the discretion
of the judiciary to which the suit is brought.

Warrant: The text of the Voting Rights Act lays out no specific requirements for the counties
that violate their citizens right to vote. Thus, this is left up to the discretion of the judiciary who
may not be willing to interfere.

"Voting Rights Act of 1965. (PL 89-110, 6 Aug. 1965). Web.
<http://www.gpo.gov/fdsys/pkg/STATUTE-79/pdf/STATUTE-79-Pg437.pdf>

If in any proceeding instituted by the Attorney General under any statute to
enforce the guarantees of the fifteenth amendment in any State or political
subdivision the court finds that violations of the fifteenth amendment justifying
equitable relief have occurred within the territory of such State or political subdivision,
the court, in addition to such relief as it may grant, shall retain jurisdiction for such
period as it may deem appropriate and during such period no voting qualification
or prerequisite to voting, or standard, practice, or procedure with respect to voting
different from that in force or effect at the time the proceeding was commenced
shall be enforced unless and until the court finds that such qualification,
prerequisite, standard, practice, or procedure does not have the purpose and will
not have the effect of denying or abridging the right to vote on account of race or
color.

Analysis: The text of the Voting Rights Act itself is indicative of how discretionary the
enforcement of preclearance is under Section 3. The judiciary can determine whatever is suitable
!"# %"&'()*+, -*. /0#12, 3)4"'-"5 6789


!"#$%&'( *+&,-. 89:
for preclearance and if they deem that a law did not have discriminatory intentions then the
judiciary can easily say that they do not need to enforce preclearance. This is an excellent answer
to pro teams who are arguing that Section 3 is a good replacement for Section 4, particularly
because con teams can cite the text of the Voting Rights Act itself.
!"# %"&'()*+, -*. /0#12, 3)4"'-"5 6789


!"#$%&'( *+&,-. 899
!:; < =#'"+ :'0>*& !"#+)1+, ?#+>*& :>&@+, A>+@ B)1+>#* C

Argument: Section 5 remains and thus allows Congress to pass a new formula that can
consistently protect 15
th
Amendment rights.

Warrant: Section 5 is left in place so Congress can pass a new formula so long as it is
responsive to current instances of voting discrimination. This means that Congress can pass a
law thats actually accurate and looks at instances of voter fraud that are occurring in the modern
United States, and not instances that occurred 40 years ago.

Shelby County v. Holder. 570 U.S. 679. Supreme Court of the United States. 2013. Web.
4 Jan. 2014. < http://www.supremecourt.gov/opinions/12pdf/12-96_6k47.pdf?>

The Government has a fallback argument- because the formula was relevant in
1965, its continued use is permissible so long as any discrimination remains in the
States identified in 1965. But this does not look to current political condition,
Northwest Austin, supra, at 203, instead relying on a comparison between the states in
1965. But history did not end in 1965. In assessing the current need[] for a
preclearance system treating States differently from one another today, history since
1965 cannot be ignored. The Fifteenth Amendment is not designed to punish for the
past; its purpose is to ensure a better future. To serve that purpose, 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.

%*-05,>,D This Supreme Court decision shows that the part of the Voting Rights Act Roberts
finds unconstitutional is not the preclearance requirement, but the antiquity of the formula itself.
He also states that Congress can identify jurisdictions, but those jurisdictions must make sense in
light of historical changes. This evidence is key for teams to show that while the formula was
invalidated, a new formula can be created if Congress desires to, and the Supreme Court decision
itself argues that Congress can create a new formula. So essentially Pro teams can show that
!"# %"&'()*+, -*. /0#12, 3)4"'-"5 6789


!"#$%&'( *+&,-. 89:
concerns about 15
th
Amendment violations are not relevant in the round because the court ruling
still allows for the protection of 15
th
Amendment rights. Remember that Supreme Court justices
make decisions on a basis of effects of decisions as well, and one of the major arguments from
the dissenting justices was the increase of 14
th
and 15
th
Amendment violations. A way Pro teams
can argue that these do not specifically matter in this round is by arguing that these violations
will not increase because of other sections of the VRA, thus these are not particularly impactful.

%"&'()*+; "#$ %&'()*+ ,- -& &*. /#+/ ,/ ,- 0*$+'*1 2&/ +2 +00)'+/$ '$3'$-$2/+/,&2 &% /#$
0)''$2/ (+4$5)3 &% 6($',0+7 "#)-8 9&2:'$-- ()-/ 3+-- + 2$; %&'()*+ /#+/ %&0)-$- &2
,2-/+20$- &% +0/)+* <&/$' .,-$2%'+20#,-$($2/7

Warrant: The preclearance formula was not updated for 50 years, so if Congress wants to allow
preclearance, it must update the formula accordingly. Basically, there are 15
th
Amendment
violations going on in states that arent covered by the current formula, which means that the
citizens in those states are unequally not having their rights protected. So if Congress wants to
adequately protect the rights of its citizens, they must pass laws that do so.

Weiss, Debra. "SCOTUS Leaves Intact Preclearance Requirement in Voting Rights Act,
Strikes Down Formula." ABA Journal 25 Jun 2013. Web. 2 Jan. 2014. <
http://www.abajournal.com/news/article/scotus_leaves_intact_preclearance_requi
rement_in_voting_rights_act_strikes_/>

The court did not rule on Section 5, the provision that requires state and local
government entities with a history of discrimination to get federal approval of
changes to their voting laws. Roberts also stressed that the ruling did not affect Section
2, the permanent, nationwide ban on on racial discrimination in voting. Roberts said that
Sections 4 and 5 of the Voting Rights Act, passed in 1965, were strong medicine
intended to address entrenched racial discrimination in voting. The preclearance
conditions were originally set to expire in five years, but nearly 50 years later, they
are still in effect, Roberts said. "Our country has changed," Roberts said, "and
!"# %"&'()*+, -*. /0#12, 3)4"'-"5 6789


!"#$%&'( *+&,-. 89:
while any racial discrimination in voting is too much, Congress must ensure that the
legislation it passes to remedy that problem speaks to current conditions."

%*-05,;,< This evidence is key to show why the formula that the Supreme Court invalidated
could not possibly have been responsive to current needs. It was written over 50 years ago and
was supposed to expire a mere 5 years later but Congress kept extending it without adequately
revising or looking at where voting violations were actually taking place. Roberts stresses here
that Congress can have preclearance, but it must be districts that actually have voting
discrimination occurring.

%"&'()*+< "#$ %&'()*+ ,+- .$ )/0+1$0 1& /'&1$,1 '23#14 .$,+)4$ &% 1#$ ,&)'1 ')*2-35

Warrant: The preclearance formula is outdated and can be updated to suit current needs because
Section 5 is still in place. The justices in the majority opinion even explicitly say that there needs
to be a new formula passed by Congress to protect 15
th
Amendment rights.

Liptak, Adam. "Supreme Court Invalidates Key Part of Voting Rights Act." New York
Times 25 Jun 2013, A1. Web. 2 Jan. 2014.
<http://www.nytimes.com/2013/06/26/us/supreme-court-
ruling.html?pagewanted=all&_r=0>

Section 5, which sets out the preclearance requirement, was originally scheduled to
expire in five years. Congress repeatedly extended it: for five years in 1970, seven
years in 1975, and 25 years in 1982. Congress renewed the act in 2006 after holding
extensive hearings on the persistence of racial discrimination at the polls, again
extending the preclearance requirement for 25 years. But it relied on data from the
1975 reauthorization to decide which states and localities were covered. The current
coverage system, Chief Justice Roberts wrote, is based on 40-year-old facts having no
logical 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
!"# %"&'()*+, -*. /0#12, 3)4"'-"5 6789


!"#$%&'( *+&,-. 89:
strike down Section 5, but without Section 4, the later section is without significance
unless Congress passes a new bill for determining which states would be
covered.

%*-05,;,< The last time the coverage formula of the VRA was updated was 1975. Teams need to
stress this because it shows just how unresponsive the coverage formula is to changes in
demographic makeup or voting behavior. Congress may pass a new bill, and probably even
should pass a new bill, revising the coverage formula. Use this evidence to show that 15
th

Amendment violations will not occur as a result of the passage of the ruling.

%"&'()*+< "#$ %&'($)$ *+&(,-. +/01 2..&$ 32,# '($40$5(5/4$ 2. !"#$" .,5,$. #56$ ,+ 7+
,#(+&7# '($40$5(5/4$8 /+, ,#5, .,5,$. .#+&09 7+ ,#(+&7# '($40$5(5/4$:

Warrant: The process of preclearance is left in place by the Court, it is merely the determination
of which states and jurisdictions must go through the process of preclearance that was struck
down. Basically, the Court says that it is acceptable to discriminate between states and select
certain states that must go through preclearance, but the states selected have to actually have
instances of voter discrimination.

Brandeisky, Kara, and Mike Tigas. "Everything That's Happened Since Supreme Court
Ruled on the Voting Rights Act." Journalism in the Public Interest. ProPublica, 1
Nov 2013. Web. 3 Jan 2014. < http://www.propublica.org/article/voting-
rights-by-state-map>

One important technical point: the Supreme Court actually left Section 5 of the
Voting Rights Act the part of the law that describes how preclearance works
intact. Instead, the Court struck down Section 4, which explains which states and
localities are subject to preclearance. If Congress amends Section 4, the Justice
Department can start enforcing Section 5 again.

Analysis: This piece of evidence is key to show that it is not the notion of preclearance itself that
was invalidated by the Supreme Court, but the states that had to go through the process of
preclearance. Pro teams should use this piece of evidence to show that it is clear that once
Congress passes a new formula, states can then begin going through preclearance once more.
!"# %"&'()*+, -*. /0#12, 3)4"'-"5 6789


!"#$%&'( *+&,-. 89:
%;6< =#'"+ >'0?*& !"#+)1+, @#+?*& >?&A+, B?+A C)1+?#* D

Answer: Congress will not pass a new formula because of a divided Congress.

Warrant: There is simply too much disagreement in Congress right now to get much of
anything done, particularly passing a contentious bill that seeks to isolate states that discriminate
against their own citizens. This type of bill would be very unlikely to be passed.

Cillizza, Chris. "What the Supreme Court's Voting Rights Act Decision Means for
Politics." Washington Post 25 Jun 2013. Web. 3 Jan. 2014. <
http://www.washingtonpost.com/blogs/the-fix/wp/2013/06/25/what-the-voting-
rights-act-decision-means-for-politics/>

With no Section 4 -- the Court asked Congress to determine a new formula -- there
is no section 5, according to a Democratic election lawyer who was granted anonymity to
speak candidly. Unless Congress creates a new coverage formula, Section 5 is not in
force, said the source. In essence, the Court said that the Justice Department still has
the right to approve of line-drawing under the VRA but by invalidating the formula
for determining what states/counties are subject to the VRA they made that power
moot. Given Congress' inability to do, well, anything, the idea that they would wade
into this incredibly contentious issue at any point in the near future seems unlikely.

Analysis: It is extremely important for Con teams to say that while perhaps Congress still has the
ability to pass a new formula, they will not actually pass a new formula. The divisiveness in
Congress is such that there is very little political will to pass a revised formula for Section 4. As
such, Pro teams cannot make the argument that Congress will in fact pass a revised formula.

Answer: The Supreme Court likely will not allow a new formula of Section 4b to pass.

!"# %"&'()*+, -*. /0#12, 3)4"'-"5 6789


!"#$%&'( *+&,-. 89:
Warrant: Even if Congress managed to pass a new version of the formula, the Supreme Court
will likely still strike down the revised formula. This is especially indicated by Clarence
Thomass identification of certain parts of precedent that identify ways in which the Court would
be justified in striking down a new formula.

Totenberg, Nina. "Supreme Court: Congress Has To Fix Broken Voting Rights Act."
National Public Radio, 25 Jun 2013. Web. 3 Jan 2014. <
http://www.npr.org/2013/06/25/195599353/supreme-court-up-to-congress-to-fix-
voting-rights-act>

Roberts noted that the court had clearly signaled this problem four years ago, when it
avoided a constitutional ruling on the voting rights law. In essence, he said that the court
had warned Congress it was time to update the coverage formula, and Congress did
nothing. He also noted that Congress is still free to design a new and modernized
coverage formula - something that it has not done in the past largely because it was
politically impossible. No new jurisdictions wants to be labeled a bad actor under a new
formula. And leaders of both parties said repeatedly in 2006 that the laws existing
system worked well. Justice Roberts opinion on Tuesday were Justices Anthony
Kennedy, Samuel Alito, Antonin Scalia and Clarence Thomas. Thomas wrote
separately to say that he would have struck down more than the coverage formula.
He would have invalidated the concept of pre-clearance as unconstitutional, too, and
he pointed to language in the chief justices opinion that would allow the court to
invalidate the pre-clearance provision even if the coverage formula is rewritten.

Analysis: Even if Congress somehow gains the political will to pass a revision of the formula,
the new formula would probably still be struck down by the Supreme Court. Con teams should
use the evidence, especially Thomass decision, which details that the Supreme Court could still
have justification for not allowing a new preclearance formula. This is an excellent answer if Pro
teams manage to argue that Congress does have the ability to pass a new formula. Even if
Congress does, the Supreme Court will still likely invalidate the formula.

!"# %"&'()*+, -*. /0#12, 3)4"'-"5 6789


!"#$%&'( *+&,-. 8:7
Answer: Republicans will not allow a new formula to pass the House.
Warrant: With the Houses current make-up, Republican representatives would likely block
legislation attempting to create a new VRA formula. This is partly because the formula would
likely target Republican states because many of the states in a new formula would be from the
South. Without Republican support for the bill, a new formula is unlikely to appear.

Weiner, Rachel. "A New VRA Formula? Don't Hold Your Breath." Washington Post 25
Jun 2013. Web. 3 Jan. 2014. < http://www.washingtonpost.com/blogs/the-
fix/wp/2013/06/25/a-new-vra-map-dont-hold-your-breath/>

If Section 5 of the Voting Rights Act is to survive, Congress must save it. That's the
message Tuesday from the Supreme Court, which struck down the formula used to decide
which parts of the country need preclearance from the Justice Department to change
election practices. Congress may draft another formula based on current conditions,
Chief Justice Roberts wrote. How likely is that? Not very. Just ask Sen. Chuck Schumer
(D-N.Y.), who sits on the Senate Judiciary Committee. "As long as Republicans have a
majority in the House and Democrats don't have 60 votes in the Senate, there will be
no preclearance," he said in a statement. Section 5 was reauthorized back in 2006 --
when Republicans controlled the House, the Senate, and the presidency. It passed
the Senate unanimously and the House by a huge margin. And until the decision,
Republicans largely avoided weighing in on the Supreme Court fight.

Analysis: This evidence is key to explaining why precisely a new Voting Rights Act will not
pass Congress. Con teams need to specify that there is very little cooperation in Congress and
because of this a new formula is very unlikely to be passed. There is so much opposition to
singling out states as violative of minority voting rights that most Congressmen will not support
a new formula.

Answer: Supreme Court justices are skeptical of a new formula passing Congress, particularly
with recent changes of House make-up.

!"# %"&'()*+, -*. /0#12, 3)4"'-"5 6789


!"#$%&'( *+&,-. 8:8
Warrant: Justice Ginsberg advocated that Congress would not be likely to pass a new formula,
especially because of recent political deadlock. One of the main reasons Ginsberg supported
Section 4 in the first place was because she felt it adequately protected 15
th
Amendment rights,
something which are not protected in the absence of Section 4.

George, Rachel. "Voting Rights Act: Can Congress Come Up with a "New Formula" to
Protect Voters." PolicyMic., 27 Jun 2013. Web. 3 Jan 2014. <
http://www.policymic.com/articles/51629/voting-rights-act-can-congress-come-
up-with-a-new-formula-to-protect-voters>

The fear remains, however, that Congress will be politically incapable of protecting
minorities in a followup in what Yale Law professor Heather Gerken labels a
political "nonstarter." And, even if some compromise was eventually reached, there
would undoubtedly be a delay in protecting citizens, as well as a "moving target"
problem where demographic and social issues will always remain in flux over time.
Justice Ginsburg was quick to point out in her dissent on Tuesday that Congress
indeed held numerous hearings in 2006 to reconsider the existing coverage formula
without encountering any significant changes, adding to skepticism the Congress is
poised to create a fair "new formula" today. Unfortunately, any "new formula" will no
doubt be played out in the political ring with more of an eye for 2016 than for protecting
the rights of minorities. Today's notoriously gridlocked Congress would of course
face giant roadblocks to any maneuvers that could have major implications for
party aspirations in contentious districts across the country.

Analysis: Justice Ginsberg along with other political analysts expressed skepticism over
Congresss ability to reach any type of consensus to pass a new formula. Both the Supreme
Court justice who authored the dissent and members of the Yale Law Journal agree that
Congress is extraordinarily unlikely to be able to pass a formula that adequately addresses the
needs of the nation. This is essential for Con teams to prove that a new formula will not arise.
Additionally, Ginsburg tells us that the result of getting rid of Section 4b, increased violations of
voter rights will occur.
!"# %"&'()*+, -*. /0#12, 3)4"'-"5 6789


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Argument: The Court has upheld in many cases the principle of equal sovereignty between the
States under the application of laws.

Warrant: In the case of Northwest Austin that preceded Shelby County the principle of equal
sovereignty between the states was upheld. Because the Voting Rights Act only applied to nine
states, it did not equally apply the laws to the states, meaning as a matter of precedence the
Supreme Court was correct in deciding Shelby County.

Shelby County v. Holder. Supreme Court of the United States. 2013. Web. Jan 6 2014. <
http://www.supremecourt.gov/opinions/12pdf/12-96_6k47.pdf>

And despite the tradition of equal sovereignty, the Act applies to only nine States
(and several additional counties). While one State waits months or years and
expends funds to implement a validly enacted law, its neighbor can typically put the
same law into effect immediately, through the normal legislative process. Even if a
noncovered jurisdiction is sued, there are important differences between those
proceedings and preclearance proceedings; the preclearance proceeding not only
switches the burden of proof to the supplicant jurisdiction, but also applies
substantive standards quite different from those governing the rest of the nation.

Analysis: This proves that the states need to be treated equally as a matter of equal sovereignty
because equal sovereignty is a valued judicial precedence. States cannot be unequally covered by
certain laws because it means that there is unequal application of the laws. Thus certain states are
favored over other states.

Warrant: Section 4 puts certain states into unequal positions with their neighbors, upsetting the
principle of equal federalism between the states.

!"# %"&'()*+, -*. /0#12, 3)4"'-"5 6789


!"#$%&'( *+&,-. 8:;
"Shelby County v. Holder." Legal Information Institute. Cornell University Law Library,
27 Feb 2013. Web. 6 Jan 2014. <http://www.law.cornell.edu/supct/cert/12-96>

Another concern shared by many of Shelby Countys amici is that the VRA impinges
on federalism and state sovereignty with regard to elections. In particular, the amici
point to the supervisory power historically granted to states over their own state
elections. While the amici admit that this power is not absolute, they find that the
unequal restrictions placed on certain states under the VRA is an infringement on
state sovereignty and puts those states on unequal footing from their neighbors,
raising federalism concerns.

Analysis: This evidence is key for teams attempting to illustrate how the principle of equal
sovereignty means that certain states should not be unfairly separated from their neighbors in
terms of their ability to decide and run their own elections. States need the ability to be able to be
decisive over the running and operation of their own elections.

Warrant: Federalism argues that the power to regulate elections lies with the states, as
established in previous cases. Additionally, equal protection establishes that states must be
subject to similar coverage by laws.

Pilon, Roger. "Equal Protection." Cato Supreme Court Review. CATO Institute, 2013.
Web. 3 Jan 2014. < http://object.cato.org/sites/cato.org/files/serials/files/supreme-
court-review/2013/9/foreword.pdf>

As Chief Justice John Roberts demonstrated, writing for the Courts majority, the
covered jurisdictions today, if anything, have better voting records concerning
minorities than the jurisdictions not subject to the requirements. Because section 4
has not been updated in more than 40 years, the Court held it unconstitutional, effectively
rendering section 5 unenforceable unless Congress updates the coverage formula (which
is not likely at this point in time). Thus, the equal protection issue here turns out to be
straightforward. As the Court held six years ago in Northwest Austin v. Holder, the
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Voting Rights Act imposes current burdens and must be justified by current
needs. Because current needs no longer justify the laws extraordinary measures, the
Court held that it could no longer tolerate a situation whereby one State waits months
or years and expends funds to implement a validly enacted law, [while] its neighbor
can typically put the same law into effect immediately.

Analysis: The states that were covered could only be covered because they were especially
violative of the voting rights of the individuals who inhabited those states. However, these states
now have higher rates of minority voting than their neighbors who are not covered by the
formula. As such, the precedence for violating the principle of equal sovereignty in these
instances is no longer justified.

Warrant: There has been a long history of the Court deciding that states should be treated
equally, and afforded the dignity that is allocated to them in the Constitution. The Constitution
and its principles of federalism are that each state should be granted a certain degree of
autonomy and independence from federal law.

Fishkin, Joseph. "The Dignity of the South." The Yale Law Journal. Yale Law School, 08
Jun 2013. Web. 6 Jan 2014. < http://yalelawjournal.org/the-yale-law-journal-
pocket-part/election-law/the-dignity-of-the-south/>

This argument from the equal dignity of the states is both more and less novel than
it might seem. The idea that states have dignity, and that this dignity has some
constitutional forcealthough not, to be sure, because of any specific piece of
constitutional textemerged as an important theme in the new federalism
jurisprudence of the 1990s. In a series of sovereign immunity cases, most
prominently Alden v. Maine, conservative Supreme Court majorities held that it
would violate states dignity if Congress could use its Article I powers to make states
subject to lawsuits for money damages without their consent. In those cases, dignity
enters the picture in a hierarchical way: it is one state versus the federal government. The
invocation of dignity is meant to evoke a pre-democratic idea of the dignity of the
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sovereign, an idea that predates the modern conceptions of human dignity that are now so
central to the constitutional law and jurisprudence of many nations and international
bodies.

In other words, the dignity claim here is about the sovereignty of a state
any state. Maine will do as well as South Carolina.

Analysis: State dignity is critical to the creation of equality between states and the principle of
federalism. Teams need to establish that sovereignty is actually a Constitutional principle in
order to win this point. Really, what teams need to establish is that equal protection of the laws
can only occur with equal sovereignty. For laws to be equally enforced in various states, the
equal sovereignty of the states needs to exist.


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Answer: There is no Constitutional basis for the claim of equal sovereignty among the states
with the application of laws, particularly laws that are left up to Congress.

Warrant: Justice Ginsburg argues that there is actually no Constitutional basis for the argument
that states should enjoy equality among the other states because any of the cases cited dont
actually make the claim that sovereignty should be extended to all the states in every instance.

Shelby County v. Holder. Supreme Court of the United States. 2013. Web. 6 Jan 2013. <
http://www.supremecourt.gov/opinions/12pdf/12-96_6k47.pdf>

The Court stops any application of 5 by holding that 4(b)s coverage formula is
unconstitutional. It pins this result, in large measure, to the fundamental principle
of equal sovereignty. In Katzenbach, however, the Court held, in no uncertain terms,
that the principle applies only to the terms upon which States are admitted to the
Union, and not to the remedies for local evils which have subsequently appeared.
Katzenbach, the Court acknowledges, rejected the notion that the [equal
sovereignty] principle operate[s] as a bar on differential treatment outside [the]
context [of the admission of new States]. But the Court clouds that once clear
understanding by citing dictum from Northwest Austin to convey that the principle of
equal sovereignty remains highly pertinent in assessing subsequent disparate treatment
of States.

Analysis: This is critical for Con teams to establish that the court case cited by the majority to
justify the notion of equal sovereignty actually only addresses equal sovereignty when discussing
the manner in which states are admitted and not when discussing federal laws. This is especially
problematic for Pro teams, because the Court case that establishes the Constitutional basis,
Katzenbach v. South Carolina, actually only establishes it in terms of when states are admitted to
the union.
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Answer: Every law the federal government ever passes will affect certain states differently than
others.

Warrant: The reason every law affects states differently is because states have different
populations, different resources, different abilities to enforce the law and different circumstances
across the board. This is why a principle of equal sovereignty would be impossible to enforce,
and the reason there is no claim of equal sovereignty in the Constitution.

Posner, Eric. "Supreme Court in 2013: The Year in Review." Slate. 25 Jun 2013. Web. 6
Jan. 2014.
<http://www.slate.com/articles/news_and_politics/the_breakfast_table/features/20
13/supreme_court_2013/clarence_thomas_is_the_ron_paul_of_the_supreme_cour
t.html>

In fact, the federal government doesnt treat states equally and couldnt possibly.
Nearly all laws affect different states differently. Disaster-relief laws benefit disaster-
prone states at the expense of disaster-free states. Pollution-control laws burden industrial
states. Progressive taxes burden states where the rich are concentrated. Thanks to
Congress, the Environmental Protection Agency can single out states with serious
pollution problems, the Justice Department can keep an eye on states with serious
corruption problems, and immigration authorities can single out border states for
surveillance. Indeed, Section 2 of the Voting Rights Act will continue to burden
states with substantial minority populations relative to other states, just because you
cant discriminate against a minority population that doesnt exist. Many more
Section 2 claims will be brought in Alabama than in Montana, and so even under
Section 2, Alabama has vastly less control over its election law than Montana has over its
election law.

Analysis: Eric Posner is a professor at University of Chicago Law School. This evidence is
excellent for Con teams wishing to establish that if a court used a principle of equal sovereignty
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to determine whether or not to pass certain laws, they would be unable to pass any laws because
every law that is ever passed inevitably effects certain states differently than it effects other
states because of the nature of difference between states. So Con teams need to very clearly
establish that all laws will create inherent differences between states, so then it is extremely
difficult for Pro teams to establish a link between equal sovereignty and Constitutiinality.

Answer: The majority in Shelby County falsely equates equal protection of the states with the
equal protection of individuals, something Section 4b of the VRA was actually designed to
protect.

Warrant: Equal protection of individuals is outlined in the 14
th
Amendment, an amendment that
is actually designed to prevent things like discriminatory voting law changes from being passed.
However, the majority who decided to overturn Section 4b misinterpreted the 14
th
Amendment
as arguing that states should enjoy equal coverage of the laws.

Totenberg, Nina. "Supreme Court Weighs Future of Voting Rights Act." National Public
Radio. DISQUS, 27 Feb 2013. Web. 6 Jan 2014. <
http://www.npr.org/2013/02/27/173012038/supreme-court-weighs-future-of-
voting-rights-act>

County Attorney Ellis, however, forcefully objects to the notion that Shelby County
tried to use artifice to prevent a black candidate from winning an election. He notes that
in a county that is 90 percent white, there have been multiple elections in which black
candidates defeated white candidates. In any race, you show where you had a minority
candidate happen to lose, I can show you two where they won with a 90 percent white
population, Ellis says. He maintains that because the Voting Rights Act has not been
updated in its coverage formula since 1975, the law amounts to an unjustified
violation of states' equal sovereignty. All of our states are equally sovereign, and if
you're going to impose a current burden, he argues, you've got to have a current
justification. You can't use a justification that's 49 years old. Defenders of the law
counter that the post-Civil War amendments to the Constitution explicitly give
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Congress the power to enact appropriate legislation to enforce and protect the right
to vote. As for Shelby County's equality argument, it treats the Constitution as if it's
about equal protection for the states, not about equal protection for people, Karlan
says.

Analysis: This piece of evidence clearly shows that the Supreme Court misinterpreted the
argument about equal protection, specifically that equal protection concerns states and not
people, when in fact it only concerns people. This argument is especially problematic because
the Constitution doesnt really address the quality of individuals.



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!;< = >*1#*,+?+'+?#*-0 .') +# @)1),,-"5 -*. !"#A)" B0-',)

Argument: The Necessary and Proper Clause dictates that Congress may only pass laws that are
deemed both necessary and proper.

Warrant: Section 4b of the Voting Rights Act is no longer necessary and proper because the
states that were covered now actually have higher voter turnout as a result of the Voting Rights
Act. However, this actually means that there is no longer a need to have the restrictive formula
on certain states.

Fisher, Daniel. "Supreme Court Upholds Voting Rights Act, but Strikes Down How it is
Enforced." Forbes. 25 Jun 2013.
<http://www.forbes.com/sites/danielfisher/2013/06/25/supreme-court-upholds-
voting-rights-act-but-strikes-down-how-its-enforced/>. 6 Jan. 2014.

But Roberts declared Section 4 of that law unconstitutional because it singled out
certain states and counties based on 40-year-old evidence of racial discrimination. It
was a strong affirmation of federalism and in particular the concept of equal sovereignty
among the states. It also highlights the huge economic and social changes that have
swept the South since 1965, to the point that voter turnout as a percentage of the
minority population is far higher in Mississippi, a covered state, than in
Massachusetts, which is not. There is no doubt that these improvements are in large
part because of the Voting Rights Act, Roberts wrote. But the formula Congress
devised in 1965, separating states into those with low voter turnouts and pernicious
tests like literacy requirements, is no longer valid, he said. Today the Nation is no
longer divided along those lines, yet the Voting Rights Acts continued to treat it as if it
were.

Analysis: This evidence is key for showing that states that are covered by the VRA and the
restriction placed on those states is no longer justified because of changes to the ways in which
!"# %"&'()*+, -*. /0#12, 3)4"'-"5 6789


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those states allow their citizens to vote and function as bodies. Congress can only pass restrictive
laws when they have justification to do so and when the circumstances actually necessitate the
restrictions.


Warrant: Constitution specifically outlines that Congress can only pass what it is necessary and
proper.

U.S. Const. art 1, sec 8, cl 18. University of Chicago. 2000. <http://press-
pubs.uchicago.edu/founders/tocs/a1_8_18.html>.

To make all Laws which shall be necessary and proper for carrying into Execution
the foregoing Powers, and all other Powers vested by this Constitution in the
Government of the United States, or in any Department or Officer thereof.

Analysis: This is excellent to have on hand to show that Congress can only pass laws that are
considered simultaneously necessary and proper. This can be left up to interpretation but Pro
teams should take it upon themselves to define this section of the Constitution.

Warrant: States that are not covered by the formula are passing voter ID laws and thus the
formula is not reflective of the states that are actually passing laws that create discriminatory
outcomes as a result of voting laws.

Bronner, Ethan. "Pennsylvania Judge Keeps Voter ID Law Intact on it Way to Higher
Courts." New York Time.s15 Aug 2012.
<http://www.nytimes.com/2012/08/16/us/politics/pennsylvania-judge-keeps-
voter-id-law-intact.html>. 6 Jan. 2014.

A Pennsylvania judge on Wednesday declined to block a new state law requiring
specific kinds of photo identification to vote. Liberal groups, arguing that minorities
and the poor would be disproportionately deprived of the ballot, said they would
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appeal to the State Supreme Court to stop the law before the November elections. The
groups said the law, like those recently passed in 10 other states, was a Republican
attempt to suppress participation of the less privileged, who tend to vote for
Democrats. The laws backers said they were seeking to preserve the integrity of the
electoral process. Both parties acknowledge that voter turnout could play a crucial
role in what many predict will be a tight race between President Obama and Mitt
Romney, the presumptive Republican nominee, especially in battleground states like
Pennsylvania. Other court cases under way include federal inquiries into voter ID laws in
Texas and South Carolina and a state challenge in Wisconsin. In Ohio, a dispute over
rules for early voting ended on Wednesday when the secretary of state set uniform
hours statewide.

Analysis: This evidence is excellent for showing that states that actually arent covered by
Section 4b are the ones who pass discriminatory voting laws. This means that the law is no
longer covering the states that actually need for laws to be passed. Ohio and Pennsylvania are not
actually covered by the Voting Rights Act, which means that the formula is no longer responsive
to current needs and the current make-up. Pro teams should use this evidence to show that the
law is no longer necessary and proper.

Warrant: States that initially had discriminatory voting policies and thus unequal amount of
voting at the polls no longer have this level of discrimination.

Shelby County v. Holder. Supreme Court of the United States. 2013.
<http://www.supremecourt.gov/opinions/12pdf/12-96_6k47.pdf>. 6 Jan 2013.

Nearly 50 years later, they are still in effect; indeed, they have been made more
stringent, and are now scheduled to last until 2031. There is no denying, however, that
the conditions that originally justified these measures no longer characterize voting in the
covered jurisdictions. By 2009, the racial gap in voter registration and turnout [was]
lower in the States originally covered by Section 5 than it [was] nationwide. Since
that time, Census Bureau data indicated that African-American voter turnout has
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come to exceed white voter turnout in five of the six States originally covered by
Section 5, with a gap in the sixth State of less than one half of one percent. At the same
time, voting discrimination still exists; no one doubts that. The question is whether the
Acts extraordinary measures, including its disparate treatment of the States, continue to
satisfy constitutional requirements. As we put it a short time ago, the Act imposes
current burdens and must be justified by current needs.

Analysis: This evidence is critical for Pro teams to show, especially with the last sentence, that
necessary and proper was key for the Supreme Court deciding whether or not the Voting Rights
Act was merited by current conditions. This is especially indicative that the Voting Rights Act
formula is no longer accurate because minority voter turnout in the states that are covered is
actually higher than states that are not covered. So Pro teams can now easily argue that the goal
of the VRA, increasing minority voter turnout, has actually been met and thus the law is neither
necessary nor proper in the context of current conditions, especially current amount of voter
turnout.

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%;6 < =*1#*,+>+'+>#*-0 .') +# ?)1),,-"5 -*. !"#@)" A0-',)

Answer: As soon as Section 4 was invalidated by the Supreme Court, states covered by the
formula immediately began passing discriminatory laws.

Warrant: Preclearance was actually the thing preventing states from passing laws that restrict
access to voting. Voter ID laws, while perhaps not intended to be discriminatory on the outset,
had discriminatory effects which was all Section 4 required to prove.

Childress, Sarah. "With Voting Rights Out, States Push Voter ID Laws." Frontline. 26
Jun 2013. <http://www.pbs.org/wgbh/pages/frontline/government-elections-
politics/with-voting-rights-act-out-states-push-voter-id-laws/>. 6 Jan. 2014.

Within 24 hours of the Supreme Courts decision to strike down the law requiring
nine states to submit voting law changes to the federal government for pre-
clearance, five are already moving ahead with voter ID laws, some of which had
already been rejected as discriminatory under the Voting Rights Act. The spate of
new and potentially discriminatory laws is exactly why proponents of the Voting Rights
Act argued that Section 4, the pre-clearance requirement, should remain in place. Before
1965, when the law was first passed, state and local governments came up with ever-
inventive ways to keep blacks from voting, forcing the federal government to launch
countless legal battles. When Texas was prohibited from holding all-white primaries in
1927, for example, it passed a new law to allow the party leadership to decide who could
vote. They chose an all-white primary. Early attempts to cope with this vile infection
resembled battling the Hydra, said Justice Ruth Bader Ginsburg, in her fierce dissent of
the Supreme Courts ruling. Whenever one form of voting discrimination was identified
and prohibited, others sprang up in its place. This Court repeatedly encountered the
remarkable variety and persistence of laws disenfranchising minority citizens, she
continued. Since last year, 41 states have introduced some form of restrictive voting
legislation, and of those 18 passed laws. Among the most popular are those that
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require voters to show a photo ID in order to vote, which proponents say helps to
counter fraud a phenomenon that almost never happens, analysts say.

Analysis: This evidence is fantastic for Con teams to use to prove that the only thing stopping all
the horrible discriminatory voting laws that the majority argued was a thing of the past was
actually Section 4 of the Voting Rights Act. Section 4 was actually the only thing prevent en
masse discrimination as a result of voter ID laws. After the law was invalidated, states passed
laws that had in fact already been shown to have discriminatory outcomes.

Answer: North Carolina immediately passed a discriminatory voter ID law.

Warrant: Immediately after the invalidation of VRA, states felt comfortable passing Voter ID
laws that had already been deemed discriminatory and violative of the individuals 15
th

Amendment rights in those states.

Johnson, Carrie. "Justice Department Sues North Carolina Over Voter ID
Laws." National Public Radio. DISQUS, 30 Sep 2013.
<http://www.npr.org/blogs/thetwo-way/2013/09/30/227591062/justice-
department-to-sue-north-carolina-over-voter-id-law>. 6 Jan 2014.

The Justice Department is suing North Carolina over that state's restrictive new
voting law. The lawsuit takes aim at provisions that limit early voting periods and require
a government photo ID as an illegal form of discrimination against minorities at the ballot
box. Federal authorities are challenging four parts of the state law, passed soon after
the Supreme Court invalidated a key part of the landmark 1965 Voting Rights
Act in June. Those provisions include: the state's decision to cut back on early voting by
a week; the elimination of same-day registration during that early voting period; the
prohibition on counting certain provisional ballots that are not prepared in a voter's
specific precinct; and the adoption of a strict photo identification requirement
without protections for voters who lack that required ID.
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Analysis: North Carolina immediately passed an ID law as soon as VRA was dropped which is
key for con teams to establish that VRA was actually what was preventing all these horrible and
discriminatory outcomes from occurring. Measures that are initially perceived as benevolent are
actually incredibly discriminatory and prevent individuals from exercising their 15
th
Amendment
rights.

Answer: Voter ID laws are always discriminatory.

Warrant: ID laws traditionally disenfranchise low-information voters who are often poor or
minorities and thus are blocked out of voting and systematically prevented from having their
ideas expressed in the electorate.

Cohen, Andrew. "How Voter ID Laws Are Being Used to Disenfranchise Minorities and
the Poor." Atlantic. 16 Mar 2012.
<http://www.theatlantic.com/politics/archive/2012/03/how-voter-id-laws-are-
being-used-to-disenfranchise-minorities-and-the-poor/254572/>. 6 Jan. 2014.

It's unlikely new legislation is needed -- we can still use the old reliable 1965 statute
and apply it to new circumstances like the ones presented now. But does the
discriminatory effect of state ID laws have to be so bad -- "violence, terror and
subterfuge" is how Justice Thomas put it -- before the federal government may step in
against a state? Or is it enough to establish that there is a national effort by conservative
groups to press for these types of laws? (Ironic, isn't it, in a dispute conservatives argue is
states' rights, that so many of these state voter ID laws would be conceived within the
Beltway.) Several commentators over the past week or so have called the current
generation of voter ID laws "a solution in search of a problem." But that doesn't
give enough respect to the argument that we should as a nation strive to be as
accurate as possible with our voting. If voting fraud is the third oldest profession,
and if it is somehow rampant in all these states that have Republican leaders at their
helm, then there should be reasonable ways to combat it. No responsible lawmaker
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ought to be against that. But no one seems able to find good evidence that a crisis is
at hand.

Analysis: This evidence is critical for showing that Voter ID laws, the laws that are not
permitted by the VRA are consistently discriminatory and prevent individuals who are especially
low-information from having access to the polls. This evidence is key for Con teams to show that
the various concerns Pro teams can express are not legitimate, especially about voter fraud or the
notion that elections will be delegitimized without IDs. Elections will actually be delegitimized if
voters no longer have access to the polls and we have officials who are no longer representative
of the electorate.

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!"#$%&'( *+&,-. 8:;
!<= > =?)",+)@ #A +B) 3).)"-0 C#?)"*()*+

Argument: Rights of states are reserved and the federal government is limited. Moreover, the
Fourteenth Amendment's enforcement clause makes it clear that Congress can only act to
remedially, in other words, to cure an existing problem. Therefore, without active evidence of
states acting in a discriminatory manner in regards to voting, Section 4 of the VRA is
unconstitutional.

Warrant: In McColluch v. Maryland, the Supreme Court established that the powers of the
legislature is limited and that this idea of limits must be held to an extremely high standard.

CITY OF BOERNE, PETITIONER v. P. F. FLORES, ARCHBISHOP OF SAN
ANTONIO, AND UNITED STATES. SUPREME COURT OF THE UNITED
STATES. 25 June 1997. Legal Information Institute at Cornell University Law
School. Web. 4 Jan. 2014. <http://www.law.cornell.edu/supct/pdf/95-2074P.ZO>.

"Under our Constitution, the Federal Government is one of enumerated powers.
McCulloch v. Maryland, 4 Wheat. 316, 405 (1819); see also The Federalist No. 45, p.
292 (C. Rossiter ed. 1961) (J. Madison). The judicial authority to determine the
constitutionality of laws, in cases and controversies, is based on the premise that the
'powers of the legislature are defined and limited; and that those limits may not be
mistaken, or forgotten, the constitution is written.' Marbury v. Madison, 1 Cranch
137, 176 (1803)."

Warrant: Congress has enforcement power only in remedial cases. In other words, Congress
can only act in retrospect to solve problems regarding racial discrimination in voting rights.

CITY OF BOERNE, PETITIONER v. P. F. FLORES, ARCHBISHOP OF SAN
ANTONIO, AND UNITED STATES. SUPREME COURT OF THE UNITED
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!"#$%&'( *+&,-. 8:;
STATES. 25 June 1997. Legal Information Institute at Cornell University Law
School. Web. 4 Jan. 2014. <http://www.law.cornell.edu/supct/pdf/95-2074P.ZO>.

"The Fourteenth Amendment's history confirms the remedial, rather than
substantive, nature of the Enforcement Clause. The Joint Committee on
Reconstruction of the 39th Congress began drafting what would become the Fourteenth
Amendment in January 1866. The objections to the Committee's first draft, and the
rejection of the draft, have a direct bearing on the central issue of defining Congress'
enforcement power. In February, Republican Representative John Bingham of Ohio
reported the following draft amendment to the House of Representatives on behalf
of the Joint Committee: 'The Congress shall have power to make all laws which
shall be necessary and proper to secure to the citizens of each State all privileges
and immunities of citizens in the several States, and to all persons in the several
States equal protection in the rights of life, liberty and property.' Cong. Globe, 39th
Cong., 1st Sess., 1034 (1866). The proposal encountered immediate opposition,
which continued through three days of debate. Members of Congress from across the
political spectrum criticized the Amendment, and the criticisms had a common
theme: the proposed Amendment gave Congress too much legislative power at the
expense of the existing constitutional structure.'"

Warrant: There must be a current reason for the federal government to meddle with states'
rights. Federal government is overstepping their power if they lack proof that their intervention
is completely necessary.

"The Voting Rights Case: A Constitutional View." Tenth Amendment Center. N.p., n.d.
Web. 04 Jan. 2014. <http://tenthamendmentcenter.com/2013/08/01/the-voting-
rights-case-a-constitutional-view/>.

"Time passed, and discriminatory ways were abandoned, Yet Congress did not
narrow Section 4s formula to bring it up to date. On the contrary, Congress re-
authorized the formula and even expanded it. By 2013, states with excellent records
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of minority voting were still being punished for misdeeds long in the past. Congress
had chosen to visit the iniquity of the ancestors on future generations. In fact,
Congress had chosen to punish many alive today who did not even have any
culpable ancestors. Thus, the Court voided Section 4 because it was no longer
'appropriate legislation,' leaving Congress free to adopt a more appropriate substitute.
Justice Thomas concurred with the result, but wrote separately to say that he would also
invalidate Section 5, the list of specified penalties to be imposed on states singled out by
Section 4. Thomas is an African-American son of the segregated South. But he pointed
out that the evils the law was designed to solve had long since been solved. There
was no longer reason for federal meddling in matters the Constitution ordinarily
reserves to the states."

Analysis: The 10th Amendment gives states reserved rights and is supposed to limit the power
of the federal government over the states. Federal power seems to be expanded by the
enforcement clause of the Fourteenth Amendment, but not in the case of to allow the VRA. The
federal government can only act remedially, meaning that evidence of racial discrimination must
be present. Without this evidence the federal government is unconstitutionally stepping on the
toes of state governments.
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!"#$%&'( *+&,-. 8:8
%;6 < =>)",+)? #@ +A) 3).)"-0 B#>)"*()*+

Answer: Congress is not limited to act remedially.

Warrant: Katzenbach v. Morgan is cited in NAMUDNO v. Mukasey to expand Congress's
ability to enforce the Fourteenth Amendment to not only remedy racial discrimination by the
States but to prevent it.

NORTHWEST AUSTIN MUNICIPAL UTILITY DISTRICT NUMBER ONE v.
MICHAEL B. MUKASEY. UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF COLUMBIA. N.d. Brennan Center for Justice. Web. 4 Jan. 2014.
<http://www.brennancenter.org/sites/default/files/legacy/Democracy/5.30.08.nam
undo.decision.pdf>.

"Indeed, citing Morgan and viewing section 4(e) as a measure aimed at 'racial
discrimination,' Justice Scalia announced in Lane, the most recent of the City of
Boerne cases, that 'I shall leave it to Congress, under constraints no tighter than
those of the Necessary and Proper Clause, to decide what measures are appropriate
under 5 [of the Fourteenth Amendment] to prevent or remedy racial
discrimination by the States.'"

Answer: The Supreme Court granted Congress enforcement powers of the Fourteenth
Amendment.

Warrant: The Supreme Court exploits precedence to expand federal power to enforce
Fourteenth Amendment. Therefore, the same should be done in the case of Shelby County v.
Holder.

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Katzenbach v. Morgan. SUPREME COURT OF THE UNITED STATES. 13 June
1966. Legal Information Institute at Cornell University Law School. Web. 4 Jan.
2014. <http://www.law.cornell.edu/supremecourt/text/384/641>.

"Ex parte Virginia, 100 U.S. at 345-346, decided 12 years after the adoption of the
Fourteenth Amendment, held that congressional power under 5 had this same broad
scope. Whatever legislation is appropriate, that is, adapted to carry out the objects
the amendments have in view, whatever tends to enforce submission to the
prohibitions they contain, and to secure to all persons the enjoyment of perfect
equality of civil rights and the equal protection of the laws against State denial or
invasion, if not prohibited, is brought within the domain of congressional power."

Answer: The Supreme Court uses the tests established by McCulloch v. Maryland to determine
the constitutionality of actions by Congress that enforce the Fourteenth Amendment.

Warrant: 5 of the Fourteenth Amendment broadens Congress's powers to those established
by the Necessary and Proper Clause.

Katzenbach v. Morgan. SUPREME COURT OF THE UNITED STATES. 13 June
1966. Legal Information Institute at Cornell University Law School. Web. 4 Jan.
2014. <http://www.law.cornell.edu/supremecourt/text/384/641>.

"By including 5, the draftsmen sought to grant to Congress, by a specific provision
applicable to the Fourteenth Amendment, the same broad powers expressed in the
Necessary and Proper Clause, Art. I, 8, cl. 18. The classic formulation of the reach
of those powers was established by Chief Justice Marshall in McCulloch v.
Maryland, 4 Wheat. 316, 421: Let the end be legitimate, let it be within the scope of
the constitution, and all means which are appropriate, which are plainly adapted to
that end, which are not prohibited, but consist with the letter and spirit of the
constitution, are constitutional."

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Warrant: An action by Congress must meet these standards to be legitimate as was done in the
case of Katzenbach v. Morgan.
Katzenbach v. Morgan. SUPREME COURT OF THE UNITED STATES. 13 June
1966. Legal Information Institute at Cornell University Law School. Web. 4 Jan.
2014. <http://www.law.cornell.edu/supremecourt/text/384/641>.

"We therefore proceed to the consideration whether 4(e) is 'appropriate
legislation' to enforce the Equal Protection Clause, that is, under the McCulloch v.
Maryland standard, whether 4(e) may be regarded as an enactment to enforce the
Equal Protection Clause, whether it is "plainly adapted to that end," and whether it
is not prohibited by, but is consistent with, 'the letter and spirit of the constitution.'"

Warrant: The VRA clearly meets the 1st standard: "an enactment to enforce" an Amendment. It
has the intent to prevent discrimination in voting.

"The Voting Rights Act of 1965." Civil Rights Division Home Page. U.S. Department of
Justice, n.d. Web. 02 Jan. 2014.
<http://www.justice.gov/crt/about/vot/intro/intro_b.php>.

"Congress determined that the existing federal anti-discrimination laws were not
sufficient to overcome the resistance by state officials to enforcement of the 15th
Amendment. The legislative hearings showed that the Department of Justice's efforts to
eliminate discriminatory election practices by litigation on a case-by-case basis had been
unsuccessful in opening up the registration process; as soon as one discriminatory
practice or procedure was proven to be unconstitutional and enjoined, a new one would
be substituted in its place and litigation would have to commence anew."

Warrant: The VRA also meets the 2nd standard: a law "plainly adapted to that end." It is
targets areas where discrimination is the greatest and adds a check, the Attorney General and the
U.S. District Court for the District of Columbia, to prevent that discrimination.

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!"#$%&'( *+&,-. 8:9
"The Voting Rights Act of 1965." Civil Rights Division Home Page. U.S. Department of
Justice, n.d. Web. 02 Jan. 2014.
<http://www.justice.gov/crt/about/vot/intro/intro_b.php>.

"President Johnson signed the resulting legislation into law on August 6, 1965. Section
2 of the Act, which closely followed the language of the 15th amendment, applied a
nationwide prohibition against the denial or abridgment of the right to vote on the literacy
tests on a nationwide basis. Among its other provisions, the Act contained special
enforcement provisions targeted at those areas of the country where Congress
believed the potential for discrimination to be the greatest. Under Section 5,
jurisdictions covered by these special provisions could not implement any change
affecting voting until the Attorney General or the United States District Court for
the District of Columbia determined that the change did not have a discriminatory
purpose and would not have a discriminatory effect. In addition, the Attorney General
could designate a county covered by these special provisions for the appointment of
a federal examiner to review the qualifications of persons who wanted to register to vote.
Further, in those counties where a federal examiner was serving, the Attorney General
could request that federal observers monitor activities within the county's polling place."

Warrant: The VRA meets the last standard: "is consistent with, 'the letter and spirit of the
constitution.'" It acts in favor of the enforcement clause of the Constitution.

"In Need of a Constitutional Rationale." MSNBC. NBC Universal, 25 June 2013. Web. 04
Jan. 2014. <http://www.msnbc.com/rachel-maddow-show/need-constitutional-
rationale?lite=>.

"Assuming Id missed something important, I asked the Constitutional Accountability
Centers David Gans to help me out. He told me: 'Your question highlights a
fundamental flaw in Chief Justice Roberts majority opinion in Shelby County v. Holder.
The Court strikes down a core provision of the Voting Rights Act as unconstitutional
without ever explaining what provision of the Constitution commands this result. Chief
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!"#$%&'( *+&,-. 8:;
Justice Roberts opinion for the conservative majority argued that the Voting
Rights Act provision was inconsistent with the letter and spirit of the Constitution,
but he never really explained why. 'His majority opinion emphasized that the
Voting Rights Act diminished the sovereignty of states, ignoring that Fifteenth
Amendment expressly gives to Congress broad power to prevent all forms of racial
discrimination in voting by the states. As Justice Ginsburgs powerful dissent
demonstrates, the Courts opinion cannot be squared with the text, history, and meaning
of the Fifteenth Amendment.'"

Analysis: First, Congress is not limited to act only in retrospect, so it does not necessarily need
the most up-to-date evidence of racial discrimination. Instead, it can act to prevent
discrimination. More importantly, however, the Supreme Court decided that the same tests used
to limit the federal government established in McCulloch v. Maryland are all passed by the
VRA. It clearly cannot be deemed correctly unconstitutional.


Con Arguments
with Pro Responses
Champion Briefs
February 2013
Public Forum Brief
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!;< = !">*&*. ?(&@,.@1+@"#, A+@00 B->* C"&,+ D"+@#' !"#.@+@"#,

Argument: The jurisdictions listed in Section Four of the Voting Rights Act still have the worst
voting conditions in the nation.

Warrant: Covered jurisdictions continue to submit voting laws that seek to bar minority voting.

Justice Ginsburg. "SHELBY COUNTY v. HOLDER." Legal Information Institute.
Cornell University Law School, 25 June 2013. Web. 04 Jan. 2014.
<http://www.law.cornell.edu/supremecourt/text/12-96>.

Although the VRA wrought dramatic changes in the realization of minority voting
rights, the Act, to date, surely has not eliminated all vestiges of discrimination against the
exercise of the franchise by minority citizens. Jurisdictions covered by the
preclearance requirement continued to submit, in large numbers, proposed changes
to voting laws that the Attorney General declined to approve, auguring that barriers
to minority voting would quickly resurface were the preclearance remedy
eliminated.

Warrant: In 2006, Texas was prevented from enacting a congressional redistricting that reduced
the strength of Latino voters.

Justice Ginsburg. "SHELBY COUNTY v. HOLDER." Legal Information Institute.
Cornell University Law School, 25 June 2013. Web. 04 Jan. 2014.
<http://www.law.cornell.edu/supremecourt/text/12-96>.

In 2006, this Court found that Texas attempt to redraw a congressional district to
reduce the strength of Latino voters bore the mark of intentional discrimination
that could give rise to an equal protection violation, and ordered the district
redrawn in compliance with the VRA. League of United Latin American Citizens v.
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!"#$%&'( *+&,-. 8:;
Perry, 548 U. S. 399, 440 (2006). In response, Texas sought to undermine this Courts
order by curtailing early voting in the district, but was blocked by an action to
enforce the 5 preclearance requirement. See Order in League of United Latin
American Citizens v. Texas, No. 06cv1046 (WD Tex.), Doc. 8.

Warrant: There were more preclearance objections in covered jurisdictions between 1982 and
2004 than there were from 1965 and 1982.

Machen, Ronald C. "Memorandum Of Law In Opposition To Plaintiffs Motion For
Summary Judgment And In Support Of Defendants Motion For Summary
Judgment." Department of Justice. Department of Justice, 25 June 2012. Web. 5
Jan. 2014. <http://www.justice.gov/crt/about/app/briefs/floridabrief.pdf>.

It also found further categories of evidence that supported Congresss conclusion
that intentional racial discrimination in voting remains serious and widespread
and that Section 5 preclearance is still needed:
Over 700 objections by the Attorney General between 1982 and mid-2006,
including at least 423 purpose-based objections between 1980 and 2004;
A consistent number of objections both pre-and post-1982 Reauthorization,
including 626 objections from 1982 to 2004 and 490 between 1965 and 1982;

Warrant: Covered jurisdictions disproportionally represent the countrys most successful VRA
preclearance litigation.

McDonald, M. Laughlin. "Brief For Respondent-Intervenors Bobby Pierson, Willie
Goldsmith, Sr., Mary Paxton-Lee, Kenneth Dukes, And Alabama State Conference Of
The National Association For The Advancement Of Colored People." American Civil
Liberties Union. Web. <http://www.aclu.org/files/assets/12-
96_bs_bobby_pierson_et_al._0.pdf>.

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!"#$%&'( *+&,-. 8:;
While the covered jurisdictions contained less than 25% of the countrys
population, they accounted for 56% of successful Section 2 litigation since 1982.

Impact: By examining lawsuits, study found that most racial discrimination remains
concentrated in covered jurisdictions.

Justice Ginsburg. "SHELBY COUNTY v. HOLDER." Legal Information Institute.
Cornell University Law School, 25 June 2013. Web. 04 Jan. 2014.
<http://www.law.cornell.edu/supremecourt/text/12-96>.

Because the private right of action authorized by 2 of the VRA applies nationwide, a
comparison of 2 lawsuits in covered and noncovered jurisdictions provides an
appropriate yardstick for measuring differences between covered and noncovered
jurisdictions. If differences in the risk of voting discrimination between covered and
noncovered jurisdictions had disappeared, one would expect that the rate of
successful 2 lawsuits would be roughly the same in both areas. 6 The studys
findings, however, indicated that racial discrimination in voting remains
concentrated in the jurisdictions singled out for preclearance.

Warrant: The standard of Supreme Court review is whether or not Congress has the rational
means to prevent racial discrimination.

Justice Ginsburg. "SHELBY COUNTY v. HOLDER." Legal Information Institute.
Cornell University Law School, 25 June 2013. Web. 04 Jan. 2014.
<http://www.law.cornell.edu/supremecourt/text/12-96>.

Until today, in considering the constitutionality of the VRA, the Court has accorded
Congress the full measure of respect its judgments in this domain should garner. South
Carolina v. Katzenbach supplies the standard of review: As against the reserved
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!"#$%&'( *+&,-. 8:7
powers of the States, Congress may use any rational means to effectuate the
constitutional prohibition of racial discrimination in voting.

Impact: Section four of VRA was constitutional because geographical areas had evidence of
voting discrimination. The coverage formula proved rational in both practice and theory.

Whitaker, L. Paige. "Congressional Redistricting and the Voting Rights Act: A Legal
Overview." Congressional Research Service. Federation of American Scientists,
30 Aug. 2013. Web. 5 Jan. 2014. <http://www.fas.org/sgp/crs/misc/R42482.pdf>.

Contrasting voting conditions in 1966 with the current day, the Court observed that
when it upheld the constitutionality of the preclearance regime, it was justified by
the presence of extensive racial discrimination in voting. At that time, the Court
said, the coverage formula made sense because it tailored the preclearance
requirement to those geographical areas where there was evidence of voting
discrimination. Therefore, the Court had concluded that the coverage formula was
rational in both practice and theory.

Analysis: Although the original drafting of the VRA legislation was based on past
discrimination, it is evident through empirical evidence that this discrimination still exists.
Although discrimination exists elsewhere, its overwhelming presence in the covered
jurisdictions fulfills the coverage formula, giving the Congress the ability to reauthorize that
legislation.

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!"#$%&'( *+&,-. 8:8
%;6 < !"=*&*. >(&?,.?1+?"#, @+?00 A-=* B"&,+ C"+?#' !"#.?+?"#,

Answer: Racism is no longer confined to the covered jurisdictions.

Warrant: Racial discrimination no longer confined to the lines set up by the VRA.

Whitaker, L. Paige. "Congressional Redistricting and the Voting Rights Act: A Legal
Overview." Congressional Research Service. Federation of American Scientists,
30 Aug. 2013. Web. 5 Jan. 2014. <http://www.fas.org/sgp/crs/misc/R42482.pdf>.

While such factors could appropriately be used to divide the country in 1965, the
Court in Shelby County observed that the country is no longer divided along those
lines. In order for Congress to divide the states in such a manner that some are
subjected to preclearance, while others are not, the Court ruled that it must do so on
a basis that makes sense in light of current conditions.

Warrant: Protections against voters that were discriminated against were only confined to the
covered states.

Henderson, Wade. "Voting Rights Act's Section 5 Still Stopping Discrimination Today."
US News. U.S.News & World Report, 27 Feb. 2013. Web. 04 Jan. 2014.
<http://www.usnews.com/debate-club/should-the-supreme-court-strike-down-the-
preclearance-provision-of-the-voting-rights-act/voting-rights-acts-section-5-still-
stopping-discrimination-today>.

Sadly, efforts to deny the right to vote based on race are not a thing of the pastthey are
a contemporary reality. In the 2012 election alone, efforts to discriminate against
millions of minority voters were stopped only because they were in geographic areas
protected by Section 5. For example, Section 5 stopped the implementation of
discriminatory voter ID laws in Texas and South Carolina; prevented the use of
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!"#$%&'( *+&,-. 8:6
discriminatory congressional and state legislative district maps in Texas; and kept
covered counties in Florida from shortening the early voting period that would have
had a significant impact on minority voters.

Warrant: Low voting trends are more prevalent outside of covered jurisdictions.

Shapiro, Ilya. "What Changes After Supreme Court Ruling On Voting Rights Act."
National Public Radio. National Public Radio, 25 June 2013. Web. 5 Jan. 2014.
<http://www.npr.org/2013/06/25/195557564/what-changes-after-supreme-court-
ruling-on-voting-rights-act>.

That's right. If you look at the disparities in voting registration, for example, the
best state in the Union is Mississippi and the worst is Massachusetts. Something
similar is going on for voter turnout in terms of, you know, kind of self-segregation by
race and by other types of communities. Indeed, those sort of trends are more
prevalent outside of the coverage jurisdictions, and that's because the coverage
formula has not been changed since the facts on the ground, the statistics from 1968
to 1972.

Warrant: Requirements should be allocated to cases of discrimination in all jurisdictions.

Shapiro, Ilya. "What Changes After Supreme Court Ruling On Voting Rights Act."
National Public Radio. National Public Radio, 25 June 2013. Web. 5 Jan. 2014.
<http://www.npr.org/2013/06/25/195557564/what-changes-after-supreme-court-
ruling-on-voting-rights-act>.

Indeed in the covered jurisdictions, the voting rates are better for blacks than they
are in the uncovered jurisdictions. So if one thing is clear, it's that indeed, the Supreme
Court four years ago gave Congress a chance to update, to put some real facts on the
bones of an antiquated system, and Congress hasn't done that. And they're welcome to try
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!"#$%&'( *+&,-. 8:;
again, but really on the question of resources, I think we need to reallocate those from
these superfluous and burdensome pre-clearance requirements onto the actual cases
of discrimination and other areas where the Department of Justice should be taking
- going into court.

Impact: The VRA should protect all Americans Section 5 is still the most effective tool to do
that.

Henderson, Wade. "Voting Rights Act's Section 5 Still Stopping Discrimination Today."
US News. U.S.News & World Report, 27 Feb. 2013. Web. 04 Jan. 2014.
<http://www.usnews.com/debate-club/should-the-supreme-court-strike-down-the-
preclearance-provision-of-the-voting-rights-act/voting-rights-acts-section-5-still-
stopping-discrimination-today>.

The Voting Rights Act is necessary to ensure that our aspirations for a stronger
democracy are a reality for all citizens. Ongoing evidence shows that Section 5 of the
Voting Rights Act is the most effective tool our nation has to stop discrimination
against minorities at the ballot box. It stops real discrimination against real voters and
we must ensure that Section 5 can continue to do this important work.

Analysis: Although the VRA has been successful in mitigating the effects of racial
discrimination in covered jurisdictions, discriminatory voting practices are no longer confined to
these areas. It is therefore constitutional and most beneficial if Section 5 is applied to all citizens.
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!;< = >?* @*1A,A"# B#C-0A.-+*, D*1+A"# E F#G(,+05

Framework: This argument relies on an alternate definition of the word rightly in the
resolution. Instead of using rightly to mean correctly, you define rightly as meaning justly.
(This is the second definition on the Miriam Webster entry for rightly).

Argument: Section 5 relies on section 4.

Warrant: Since section 4 was overturned, and since section 4 dictated with states were covered
under section 5, section 5 is meaningless as a result of the decision.

Liptak, Adam. "Supreme Court Invalidates Key Part of Voting Rights Act." The New
York Times. The New York Times, 25 June 2013. Web. 6 Jan. 2014.
<http://www.nytimes.com/2013/06/26/us/supreme-court-
ruling.html?pagewanted=all>.

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 determined which states must receive clearance from
the Justice Department or a federal court in Washington before they made minor
changes to voting procedures, like moving a polling place, or major ones, like
redrawing electoral districts. Section 5, which sets out the preclearance requirement,
was originally scheduled to expire in five years. Congress repeatedly extended it: for five
years in 1970, seven years in 1975, and 25 years in 1982. Congress renewed the act in
2006 after holding extensive hearings on the persistence of racial discrimination at the
polls, again extending the preclearance requirement for 25 years. But it relied on data
from the 1975 reauthorization to decide which states and localities were covered. The
current coverage system, Chief Justice Roberts wrote, is based on 40-year-old facts
having no logical 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
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of current conditions, he wrote. It cannot simply rely on the past. The decision did not
strike down Section 5, but without Section 4, the later section is without significance
unless Congress passes a new bill for determining which states would be
covered.

Warrant: It is unlikely that Congress will fix section 4 because of Republican opposition.

Davis, Susan. "Congress unlikely to act on voting rights ruling." USA Today. Gannett, 25
June 2013. Web. 6 Jan. 2014.
<http://www.usatoday.com/story/news/politics/2013/06/25/congress-reacts-
voting-rights-rulling/2456477/>.

A divided Congress has no clear path to heed the call of Chief Justice John
Roberts and President Obama to legislate in response to Tuesday's 5-4 Supreme Court
decision that invalidated a portion of the landmark 1965 Voting Rights Act. Reaction on
Capitol Hill largely mirrored the court's ideological divide: Democrats called for
legislation to establish new formulas to determine whether states must get federal
permission before instituting changes in voting practices, while Republicans were more
reticent on the necessity to pass a new law.

Argument: Not having this protection against discrimination is immoral because discrimination
is still prevalent in the areas that were covered by the law before it was overturned.

Warrant: There have been 2400 blocked discriminatory voting changes since 1982 in the area
covered under section four.

Rosdeitcher, Sidney. "Supreme Court Preview: Constitutionality of the Preclearance and
Coverage Provisions of the Voting Rights Act Reauthorization of 2006 | Brennan
Center for Justice." Brennan Center for Justice at New York University School of
Law, n.d. Web. 3 Jan. 2014. <http://www.brennancenter.org/analysis/supreme-
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!"#$%&'( *+&,-. 8:;
court-preview-constitutionality-preclearance-and-coverage-provisions-voting-
rights>.

Respondents detail the extensive record of racially discriminatory voting practices in the
covered jurisdictions before Congress, that they maintain demonstrate current needs
for the preclearance provision. This record shows, they maintain, that since 1982,
approximately 2400 discriminatory voting changes had been blocked by more than
750 Section 5 objections and that without Section 5 these voting changes could have
been challenged only through case-by-case litigation, a system that would have
resulted in years of discriminatory treatment of minority voters pending the
outcome of those litigations and would have required an enormous expenditure of
resources. Among other evidence before Congress of voting discrimination in the
covered jurisdictions, Respondents point to the number of successful suits under Section
2 of the Voting Rights Act filed in covered jurisdictions; continued disparities between
minority voters registration and participation rates as compared to those of non-Hispanic
white voters; the Attorney Generals experience in certifying and dispatching election
observers; the persistence of severe racially polarized voting in covered jurisdictions that
indicates the political vulnerability of racial-minority voting rights; and testimony of
experts, voters, and practitioners about ongoing intimidation, harassment, voter
suppression and intentionally dilutive practices.

Warrant: Voter-id laws that were blocked in five states will now become law, depress minority
turnout.

Greenman, Emma . "Part 1: Gutting the Voting Rights Act: How the Supreme Courts
Shelby v. Holder decision Strikes at the Heart of Voting Rights and Our Political
Process." Wellstone. N.p., 14 July 2013. Web. 3 Jan. 2014.
<http://www.wellstone.org/blog/2013/07/part-1-gutting-voting-rights-act-how-
supreme-court%E2%80%99s-shelby-v-holder-decision-strikes>.

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!"#$%&'( *+&,-. 8:;
Take voter ID laws for starters. Until Shelby, Section 5 prevented covered states from
implementing strict voter ID requirements that would depress minority turnout. Now
freed of the federal government review, many of the formally covered jurisdictions will
go ahead with those laws to the determinant of minority voters. In fact, they already
have. Hours after the ruling, Texas announced it is putting a strict voter ID law into
effect. The law had been blocked by Section 5 because, as the D.C. federal court
observed, it imposes strict, unforgiving burdens on the poor, and racial minorities in
Texas are disproportionately likely to live in poverty. And Texas is not alone. At last
count, four more previously covered states are moving ahead with voter ID laws that will
likely take effect before 2014 Congressional elections.

Warrant: Redistricting will dilute the influence of minority voters.

Greenman, Emma . "Part 1: Gutting the Voting Rights Act: How the Supreme Courts
Shelby v. Holder decision Strikes at the Heart of Voting Rights and Our Political
Process." Wellstone. N.p., 14 July 2013. Web. 3 Jan. 2014.
<http://www.wellstone.org/blog/2013/07/part-1-gutting-voting-rights-act-how-
supreme-court%E2%80%99s-shelby-v-holder-decision-strikes>.

And then there is redistricting. Section 5 has been very effective at preventing local
jurisdictions from changing their rules to dilute the ability of minority voters to
elect candidates of their choice. Strategies like packing minority voters into one
highly concentrated district, or cracking their voting strength by distributing minority
voters across many districts or at-large elections dilute the power of minority voters to
influence and elect leaders of their choice. Shelby County, Alabama, the jurisdiction that
took their challenge to the VRA to the Supreme Court, provides a telling example of what
we may expect in the absence of Section 5 pre-clearance. In 2008, Calera, a city in
Selby County, passed a redistricting plan that would have eliminated the citys
single majority-black city council district. Section 5 enforcement blocked the change
and saved the seat of the citys only black city council person. With federal review
gone, there is nothing preventing the city from now implementing the change.

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!"#$%&'( *+&,-. 8::
Analysis: This argument relies on an alternative interpretation of the resolution that the term
rightly means justly. Thus, the con only needs to prove that the implications of the decision
are unjust. Con does this by arguing that discrimination still exists, and that thus section 4 is still
needed morally.
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!"#$%&'( *+&,-. 8:;
%<6 = >?* @*1A,A"# B#C-0A.-+*, D*1+A"# E F#G(,+05

Logical response: Since the resolution uses the term constitution, the best interpretation of the
resolution is that it is asking us to evaluate the constitutionality, not morality, of the law. Con can
respond to this by arguing that the resolution could have used the term correctly decided,
which is more specific, but uses the term rightly decided, which is inherently more general and
allows for alternative interpretations of the resolution.

Answer: Section 2 can act as a replacement to the loss of section 5.

Background: Explanation of Section 2 of the VRA.

"Section 2 of the Voting Rights Act." Civil Rights Division Voting Rights About Section 2
page. US Department of Justice, n.d. Web. 5 Jan. 2014.
<http://www.justice.gov/crt/about/vot/sec_2/about_sec2.php>.

Section 2 of the Voting Rights Act of 1965 prohibits voting practices or procedures that
discriminate on the basis of race, color, or membership in one of the language minority
groups identified in Section 4(f)(2) of the Act. Most of the cases arising under Section 2
since its enactment involved challenges to at-large election schemes, but the section's
prohibition against discrimination in voting applies nationwide to any voting standard,
practice, or procedure that results in the denial or abridgement of the right of any citizen
to vote on account of race, color, or membership in a language minority group. Section 2
is permanent and has no expiration date as do certain other provisions of the Voting
Rights Act.

Warrant: The Justice Department is beginning to use status quo as a replacement to section 5.

Stephanopoulos, Nicholas. "New Research: The Part of the Voting Rights Act the
Supreme Court Left Alone Works Better Than Expected." Slate Magazine. Slate
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!"#$%&'( *+&,-. 8:7
Magazine, 23 Oct. 2013. Web. 6 Jan. 2014.
<http://www.slate.com/articles/news_and_politics/jurisprudence/2013/10/section_
2_of_the_voting_rights_act_is_more_effective_than_expected_new_research.htm
l>.

A voting rights battle royal began last month when the Department of Justice sued
North Carolina over its restrictive new election law. DOJ alleged that the law, which
imposes a photo ID requirement for voting, ends same-day voter registration, and cuts
back on early voting, violates Section 2 of the Voting Rights Act. Earlier this summer the
DOJ also filed two Section 2 suits against Texas, arguing that its photo ID law and
electoral district maps are illegal.

Warrant: Though it is weaker than section 5, section 2 has a 50% success rate, and will be
successful against photo-id laws in the future.

Stephanopoulos, Nicholas. "New Research: The Part of the Voting Rights Act the
Supreme Court Left Alone Works Better Than Expected." Slate Magazine. Slate
Magazine, 23 Oct. 2013. Web. 6 Jan. 2014.
<http://www.slate.com/articles/news_and_politics/jurisprudence/2013/10/section_
2_of_the_voting_rights_act_is_more_effective_than_expected_new_research.htm
l>.

As a shield against voting restrictions, however, Section 2 looks better than its
reputation suggests. I counted 18 wins since 1982 in cases in which minority voters sued
over tightened voter registration rules, absentee voting policies, polling place cutbacks,
and the like. I also calculated a success rate of about 50 percent in these cases, which is
higher than the 40 percent figure for all Section 2 suits. Slate contributor and UCIrvine
law professor Richard Hasen has pointed out that there has yet to be a successful Section
2 challenge to a photo ID law. But only two such challenges have been decided so far
(in Arizona and Georgia). And each failed because the plaintiffs couldnt show that
minorities were less likely than whites to possess valid IDsproof that is now becoming
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!"#$%&'( *+&,-. 8:8
more available. This means that Section 2 should be an increasingly useful weapon
against the voting restrictions popping up around the country.

Analysis: If there is an alternative to section 5, then not having section 5 is not immoral. Thus,
you can respond to this argument even if you lose the framework argument.

Argument: Congress may fix this problem and create a new section 4.

Warrant: Many leading Republicans support fixing the Voting Rights Act.

Ball, Molly. "The Atlantic." The Atlantic. The Atlantic, 28 June 2013. Web. 6 Jan. 2014.
<http://www.theatlantic.com/politics/archive/2013/06/no-the-voting-rights-act-is-
not-dead/277281/>.

Rep. Jim Sensenbrenner of Wisconsin, a Republican who then chaired the Judiciary
Committee, took the lead in rounding up support from the GOP in 2006. Sensenbrenner
had worked on a previous renewal of the law in 1982 and believed strongly in its
necessity. Today, Sensenbrenner again seems poised to advocate forcefully for
Republicans to support a fix to the legislation. The Voting Rights Act is vital to
America's commitment to never again permit racial prejudices in the electoral process,
Sensenbrenner said in a Wednesday statement. My colleagues and I will work in a
bipartisan fashion to update Section 4 to ensure Section 5 can be properly implemented to
protect voting rights, especially for minorities. Sensenbrenner is not alone. Two other
Midwestern Republicans, Sean Duffy of Wisconsin and Steve Chabot of Ohio, also have
expressed support for passing a fix to the legislation in response to the Court, according
to The Hill. House Majority Leader Eric Cantor, meanwhile, said he hoped his colleagues
would put politics aside ... and find a responsible path forward that ensures that the
sacred obligation of voting in this country remains protected.

Analysis: This may only be a short-term problem, because there is a chance that Congress with
fix the law. If they dont, the moral failings fall on Congress, not the Supreme Court, because
Congress has the power to fix the law in a way that is constitutional.
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!"#$%&'( *+&,-. 8:6
!;< = >*1+?"# 6 "@ +A* BC% ?, -# D)E*&@*1+ C*E0-1*)*#+

Background: Explanation of Section 2 of the VRA.

"Section 2 of the Voting Rights Act." Civil Rights Division Voting Rights About Section 2
page. US Department of Justice, n.d. Web. 5 Jan. 2014.
<http://www.justice.gov/crt/about/vot/sec_2/about_sec2.php>.

Section 2 of the Voting Rights Act of 1965 prohibits voting practices or procedures that
discriminate on the basis of race, color, or membership in one of the language minority
groups identified in Section 4(f)(2) of the Act. Most of the cases arising under Section 2
since its enactment involved challenges to at-large election schemes, but the section's
prohibition against discrimination in voting applies nationwide to any voting standard,
practice, or procedure that results in the denial or abridgement of the right of any citizen
to vote on account of race, color, or membership in a language minority group. Section 2
is permanent and has no expiration date as do certain other provisions of the Voting
Rights Act.

Argument: The conservative justices relied on the argument that section 2 was an adequate
replacement for section 5 in order to rule section 4 unconstitutional.

Berman, Ari. "Three Questions That Will Decide the Fate of Voting Rights in North
Carolina | The Nation." Three Questions That Will Decide the Fate of Voting
Rights in North Carolina | The Nation. The Nation, 14 Aug. 2013. Web. 6 Jan.
2014. <http://www.thenation.com/blog/175761/three-questions-will-decide-fate-
voting-rights-north-carolina#>.

Conservatives opposed to Section 5 of the Voting Rights Act strenuously made the
argument before and after the Supreme Courts decision in Shelby County v. Holder that
Section 2 was an adequate replacement for Section 5, which forced states with the worst
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!"#$%&'( *+&,-. 8:;
history of voting discrimination to approve their voting changes with the federal
government. Our decision in no way affects the permanent, nationwide ban on racial
discrimination in voting found in Section 2, Chief Justice Roberts wrote for the majority.
Testifying before the House, Hans van Spakovsky of the Heritage
Foundation called Section 2 the heart of the VRA and said theres no reason for
Congress to take any action to resurrect Section 5 with a new coverage map.

Argument: Since Section 2 is not an adequate replacement, the law should have been upheld.

Warrant: Section 2 is rarely used, is difficult to adjudicate in court.

Berman, Ari. "Three Questions That Will Decide the Fate of Voting Rights in North
Carolina | The Nation." Three Questions That Will Decide the Fate of Voting
Rights in North Carolina | The Nation. The Nation, 14 Aug. 2013. Web. 6 Jan.
2014. <http://www.thenation.com/blog/175761/three-questions-will-decide-fate-
voting-rights-north-carolina#>.

This is a clever and disingenuous marketing job. In truth, Section 2 has been used
mostly to challenge at-large election schemes and to protect majority-minority districts
during redistricting, and has been narrowed in recent years by the Supreme Court, most
recently in Bartlett v. Strickland in 2009. The Department of Justice hasnt filed a
Section 2 lawsuit since 2009 and no major voting restrictions were blocked under
Section 2 during the last election. Its difficult to challenge voting changes before
they go into effect under Section 2 and the cases often take years and millions of
dollars to defend. This is one of the fixes we need from Congress, says Spencer
Overton, a professor at George Washington University Law School. We need some
better, clearer standards for Section 2. The law is not well-developed. Moreover, the
more cases that are filed under Section 2, the more likely it is that anti-VRA
conservatives will challenge its constitutionality.

Warrant: Section 2 is only case by case and after the fact
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!"#$%&'( *+&,-. 8:9
Rosdeitcher, Sidney, and James Beha. "Supreme Court Preview: Constitutionality of the
Preclearance and Coverage Provisions of the Voting Rights Act Reauthorization
of 2006 | Brennan Center for Justice." Supreme Court Preview: Constitutionality
of the Preclearance and Coverage Provisions of the Voting Rights Act
Reauthorization of 2006 | Brennan Center for Justice. The Brennan Center for
Justice, 15 Feb. 2013. Web. 3 Jan. 2014.
<http://www.brennancenter.org/analysis/supreme-court-preview-constitutionality-
preclearance-and-coverage-provisions-voting-rights>.

Among other things, Section 2 of the Act created a nationwide cause of action to enjoin
voting practices or procedures that had the purpose or effect of denying or abridging the
right to vote on account of race. Recognizing the limits of case-by-case, after-the-fact
litigation, however, the Act also included prophylactic measures limited to those
geographic areas with a history of such practices. Specifically, certain temporary
provisions of the Act applied only to States and political subdivisions deemed covered
under Section 4(b) of the Act. Under Section 4(b), a jurisdiction was covered if it
maintained on November 1, 1964, any test or device prohibited under 4(b) and had less
than 50 percent voter registration or participation as of the 1964 presidential
election. These criteria were deliberately designed to capture the states of the old
Confederacy with the worst history of racially discriminatory voting practices.

Warrant: Section 5 was preventing voting changes that would harm minorities in Texas.

Roth, Zachary. "How Section 5 blocked a GOP power grab in Texas." MSNBC.
MSNBC, 6 June 2013. Web. 6 Jan. 2014. <http://www.msnbc.com/msnbc/how-section-5-
blocked-gop-power-grab-tex>.

But Texas Republicans were eager to win back Davis seat and increase their Senate
majority. And in 2011, they used their control of the redistricting process to improve their
chances.
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Redistricting requires state and congressional district lines to be modified each decade to
reflect the latest Census data. The GOP plan radically changed the demographic
makeup of Davis district, among others, moving tens of thousands of black and
Hispanic voters into neighboring districts. In fact, of the 94 precincts that were over
70% minority, Republicans cut out 48 (see maps of District 10 below). In the new
map, blacks and Hispanics were placed in separate districts from each other and
were outnumbered by the white conservative majority, which tends to vote
Republican. Davis and her constituents had one recourse: The Voting Rights Act.
Under Section 5 of the landmark civil-rights law, election changes made in certain
areas with a history of discriminationincluding Texas and most other southern states
can be blocked by the federal government if they might reduce the voting power of
minorities.

Analysis: This argument is relatively straightforward part of the courts decision in Shelby
revolved around the argument that section 2 of the VRA, which allows lawsuits if voting rights
are infringed upon, is an adequate replacement for section 5. The difference, however, is that
section 2 is retroactive, while section 5 is proactive. In other words, people can only sue after
their rights are infringed. Thus, on the con side, you can make the argument that a proactive law
is superior, and that without a proactive law, peoples rights, such as in Texas, will be infringed
upon.




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!"#$%&'( *+&,-. 8:;
%<6 = >*1+?"# 6 "@ +A* BC% ?, -# D)E*&@*1+ C*E0-1*)*#+
Answer: Section 2 is actually a powerful tool to prevent discriminatory practices.

Warrant: The Justice Department is beginning to use status quo as a replacement to section 5.

Stephanopoulos, Nicholas. "New Research: The Part of the Voting Rights Act the
Supreme Court Left Alone Works Better Than Expected." Slate Magazine. Slate
Magazine, 23 Oct. 2013. Web. 6 Jan. 2014.
<http://www.slate.com/articles/news_and_politics/jurisprudence/2013/10/section_2_of_t
he_voting_rights_act_is_more_effective_than_expected_new_research.html>.

A voting rights battle royal began last month when the Department of Justice sued North
Carolina over its restrictive new election law. DOJ alleged that the law, which imposes a
photo ID requirement for voting, ends same-day voter registration, and cuts back on early
voting, violates Section 2 of the Voting Rights Act. Earlier this summer the DOJ also
filed two Section 2 suits against Texas, arguing that its photo ID law and electoral district
maps are illegal.

Warrant: Though it is weaker than section 5, section 2 has a 50% success rate, and will be
successful against photo-id laws in the future.

Stephanopoulos, Nicholas. "New Research: The Part of the Voting Rights Act the
Supreme Court Left Alone Works Better Than Expected." Slate Magazine. Slate
Magazine, 23 Oct. 2013. Web. 6 Jan. 2014.
<http://www.slate.com/articles/news_and_politics/jurisprudence/2013/10/section_2_of_t
he_voting_rights_act_is_more_effective_than_expected_new_research.html>.

As a shield against voting restrictions, however, Section 2 looks better than its
reputation suggests. I counted 18 wins since 1982 in cases in which minority voters sued
!"# %&'()*#+, -#. /0"12, 3*4&(-&5 6789


!"#$%&'( *+&,-. 8:;
over tightened voter registration rules, absentee voting policies, polling place cutbacks,
and the like. I also calculated a success rate of about 50 percent in these cases, which is
higher than the 40 percent figure for all Section 2 suits. Slate contributor and UCIrvine
law professor Richard Hasen has pointed out that there has yet to be a successful Section
2 challenge to a photo ID law. But only two such challenges have been decided so far
(in Arizona and Georgia). And each failed because the plaintiffs couldnt show that
minorities were less likely than whites to possess valid IDsproof that is now becoming
more available. This means that Section 2 should be an increasingly useful weapon
against the voting restrictions popping up around the country.

Analysis: This argument directly undercuts the argument that section 2 is ineffective. If it can be
effective, then the courts reasoning was sound in undercutting section 5.

Answer: The crux of the decision was not about section 2, but rather about how section 4 was
not based on modern criteria.
Warrant: There is less racism now than before, the law was necessary before, but not now.
Thernstrom, Abigail. "American Enterprise Institute." Redistricting, Race, and the
Voting Rights Act. N.p., 6 Apr. 2010. Web. 3 Jan. 2014.
<http://www.aei.org/article/society-and-culture/race-and-gender/redistricting-race-and-
the-voting-rights-act/>.

During the 2006 Voting Rights Act reauthorization process, the House Judiciary
Committee argued in its official report that Discrimination today is more subtle than the
visible methods used in 1965. However, the effects and results are the same. Rarely in
the rich annals of congressional deceit and self-deception have more false and
foolish words been written. No meaningful evidence supported this extraordinary
claim, which did a disservice to the nation by refusing to recognize the remarkable
revolution in race relations that occurred in the second half of the 20th century. Without
question, the Voting Rights Act of 1965 was essential to the demise of the Jim Crow
South. It ended whites' exclusive hold on political power, which had made all other forms
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!"#$%&'( *+&,-. 8:;
of southern racial subjugation possible. It was an indispensable and beautifully designed
response to a profound moral wrong.

Warrant: African-American participation in government is high.

Thernstrom, Abigail. "American Enterprise Institute." Redistricting, Race, and the Voting
Rights Act. N.p., 6 Apr. 2010. Web. 3 Jan. 2014.
<http://www.aei.org/article/society-and-culture/race-and-gender/redistricting-
race-and-the-voting-rights-act/>.

Consider that in 1964, only five blacks held seats in Congress--none from any southern
state--and just 94 blacks served in any of the 50 state legislatures, with only 16 in the
southern states that were home to half of the nation's black population. But largely as a
consequence of race-conscious districting, the Congressional Black Caucus today has 42
members, 17 of them from the South. And as of 2008, almost 600 blacks held seats in
state legislatures; another 8,800 were mayors, sheriffs, school-board members, and other
officeholders. Fully 47% of these public officials lived in the seven states originally
covered by the Voting Rights Act, even though those states now contain only 30% of the
nation's black population. Especially striking is the fact that Mississippi--which once had
a well-deserved reputation as the most white-supremacist stat e in the union--now leads
the nation in the number of blacks elected to political office.

Analysis: This response is effective because it undercuts the whole premise of the cons
argument. If the question in the debate is about constitutionality, then the court should really
only examine the part of the VRA in question, not other parts of it.






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!"#$%&'( *+&,-. 8::
!;< = >?* @A% B, C&*D*&-40* +" <*E F*'B,0-+B"#

Argument: The Voting Rights Amendment previously allowed for reevaluation that benefitted
both states and citizens.

Warrant: The VRA has a temporal limitation that makes reauthorization necessary.

Justice Ginsburg. "SHELBY COUNTY v. HOLDER." Legal Information Institute.
Cornell University Law School, 25 June 2013. Web. 04 Jan. 2014.
<http://www.law.cornell.edu/supremecourt/text/12-96>.

Second, the very fact that reauthorization is necessary arises because Congress has
built a temporal limitation into the Act. It has pledged to review, after a span of
years (first 15, then 25) and in light of contemporary evidence, the continued need
for the VRA.

Warrant: Legislative record works as a reference for future reauthorization.

Justice Ginsburg. "SHELBY COUNTY v. HOLDER." Legal Information Institute.
Cornell University Law School, 25 June 2013. Web. 04 Jan. 2014.
<http://www.law.cornell.edu/supremecourt/text/12-96>.

First, when reauthorization is at issue, Congress has already assembled a
legislative record justifying the initial legislation. Congress is entitled to consider
that preexisting record as well as the record before it at the time of the vote on
reauthorization. This is especially true where, as here, the Court has repeatedly affirmed
the statutes constitutionality and Congress has adhered to the very model the Court has
upheld.

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!"#$%&'( *+&,-. 677
Warrant: Law also allows Department of Justice to request more information that helps
modify/withdraw a proposed change; this has helped improve a districts obligation of helping
their minority citizens.

Justice Ginsburg. "SHELBY COUNTY v. HOLDER." Legal Information Institute.
Cornell University Law School, 25 June 2013. Web. 04 Jan. 2014.
<http://www.law.cornell.edu/supremecourt/text/12-96>.

In addition to blocking proposed voting changes through preclearance, DOJ may
request more information from a jurisdiction proposing a change. In turn, the
jurisdiction may modify or withdraw the proposed change. The number of such
modifications or withdrawals provides an indication of how many discriminatory
proposals are deterred without need for formal objection. Congress received evidence that
more than 800 proposed changes were altered or withdrawn since the last reauthorization
in 1982. H. R. Rep. No. 109478, at 4041. 4 Congress also received empirical studies
finding that DOJs requests for more information had a significant effect on the
degree to which covered jurisdictions compl[ied] with their obligatio[n] to protect
minority voting rights.*

*Original source includes ellipsis

Warrant: Law gives jurisdictions the opportunity to bail out and bail into preclearance.

Justice Ginsburg. "SHELBY COUNTY v. HOLDER." Legal Information Institute.
Cornell University Law School, 25 June 2013. Web. 04 Jan. 2014.
<http://www.law.cornell.edu/supremecourt/text/12-96>.

Congress might have been charged with rigidity had it afforded covered
jurisdictions no way out or ignored jurisdictions that needed superintendence.
Congress, however, responded to this concern. Critical components of the
congressional design are the statutory provisions allowing jurisdictions to bail out
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!"#$%&'( *+&,-. 678
of preclearance, and for court-ordered bail ins. See Northwest Austin, 557 U. S., at
199. The VRA permits a jurisdiction to bail out by showing that it has complied with the
Act for ten years, and has engaged in efforts to eliminate intimidation and harassment of
vot-ers. 42 U. S. C. 1973b(a) (2006 ed. and Supp. V). It also authorizes a court to
subject a noncovered jurisdiction to federal preclearance upon finding that violations of
the Fourteenth and Fifteenth Amendments have occurred there. 1973a(c) (2006 ed.).

Warrant: Bail in and out system effective.

Justice Ginsburg. "SHELBY COUNTY v. HOLDER." Legal Information Institute.
Cornell University Law School, 25 June 2013. Web. 04 Jan. 2014.
<http://www.law.cornell.edu/supremecourt/text/12-96>.

Nearly 200 jurisdictions have successfully bailed out of the preclearance
requirement, and DOJ has consented to every bailout application filed by an eligible
jurisdiction since the current bailout procedure became effective in 1984. Brief for
Federal Respondent 54. The bail-in mechanism has also worked. Several jurisdictions
have been subject to federal preclearance by court orders, including the States of
New Mexico and Arkansas.

Warrant: Last reauthorization found evidence of continued racism in the jurisdictions.

Justice Ginsburg. "SHELBY COUNTY v. HOLDER." Legal Information Institute.
Cornell University Law School, 25 June 2013. Web. 04 Jan. 2014.
<http://www.law.cornell.edu/supremecourt/text/12-96>.

In the long course of the legislative process, Congress amassed a sizable record. The
House and Senate Judiciary Committees held 21 hearings, heard from scores of
witnesses, received a number of investigative reports and other written documentation of
continuing discrimination in covered jurisdictions. In all, the legislative record Congress
compiled filled more than 15,000 pages. The compilation presents countless examples
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!"#$%&'( *+&,-. 676
of flagrant racial discrimination since the last reauthorization; Congress also
brought to light systematic evidence that intentional racial discrimination in voting
remains so serious and widespread in covered jurisdictions that section 5
preclearance is still needed.

Warrant: Jurisdictions no longer subject to preclearance requirement.

Whitaker, L. Paige. "Congressional Redistricting and the Voting Rights Act: A Legal
Overview." Congressional Research Service. Federation of American Scientists,
30 Aug. 2013. Web. 5 Jan. 2014. <http://www.fas.org/sgp/crs/misc/R42482.pdf>.

As a result of the Courts decision, the nine states, and jurisdictions within six
states, that were previously covered under the formula are no longer subject to the
VRAs preclearance requirement.

Warrant: There will be no political will to expand section 5 nationwide.

Berman, Ari. "What the Supreme Court Doesn't Understand About the Voting Rights Act
The Nation." The Nation. The Nation, 25 June 2013. Web. 06 Jan. 2014.
<http://www.thenation.com/blog/174973/what-supreme-court-doesnt-understand-
about-voting-rights-act>.

There was no political will or necessity to expand Section 5 nationwide, and no
objective statistical criteria could have added the most recent bad actors (Ohio and
Florida) to the list of currently covered jurisdictions, wrote Nate Persily, a law professor
at Columbia University. The fact that Section 5 was geographically targeted has always
been seen as one of its constitutional saving graces.

Impact: Because it will be politically impossible to single out new districts, the VRA is no
longer effective.
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!"#$%&'( *+&,-. 67:
Shapiro, Ilya. "What Changes After Supreme Court Ruling On Voting Rights Act."
National Public Radio. National Public Radio, 25 June 2013. Web. 5 Jan. 2014.
<http://www.npr.org/2013/06/25/195557564/what-changes-after-supreme-court-
ruling-on-voting-rights-act>.

That's why in 2006 they didn't adjust the coverage formula. Politically it would be
impossible to single out new jurisdictions which have a greater risk of
discriminating against minority voters. And so this is effectively the death of the
Voting Rights Act but with the fig leaf that all that's being done here is asking Congress
to tweak the coverage formula.

Analysis: Currently, the VRA has been constantly reauthorized so that it can adapt to different
conditions. This has led to provisions such as the bail out and bail in program. The alternative is
the creation of legislation that augments the act but political will does not seem to support that
happening. In result, the Congress is no longer able to effectively enforce voter anti-
discrimination measures.


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!"#$%&'( *+&,-. 679
%:6 ; <=* >?% @, A&*B*&-40* +" C*D E*'@,0-+@"#

Answer: Parts of the Voter Rights Act are still effective.

Warrant: Decision did not affect section three, bail in provision.

Whitaker, L. Paige. "Congressional Redistricting and the Voting Rights Act: A Legal
Overview." Congressional Research Service. Federation of American Scientists,
30 Aug. 2013. Web. 5 Jan. 2014. <http://www.fas.org/sgp/crs/misc/R42482.pdf>.

As a result of the Courts decision, the nine states, and jurisdictions within six states,
that were previously covered under the formula are no longer subject to the VRAs
preclearance requirement. The covered states were: Alabama, Alaska, Arizona, Georgia,
Louisiana, Mississippi, South Carolina, Texas, and Virginia. The six states containing
covered jurisdictions were: California, Florida, Michigan, New York, North Carolina,
and South Dakota.23 It does not appear, however, that the Courts decision affected
Section 3(c) of the Act, known as the bail in provision, under which jurisdictions
can be ordered to obtain preclearance of voting laws if a court finds that violations
of the 14th or 15th Amendment justifying equitable relief have occurred.

Warrant: Section 2 is the core of the VRA.

Stephanopoulos, Nicholas. "The Future of the Voting Rights Act." Slate Magazine. Slate,
23 Oct. 2013. Web. 06 Jan. 2014.
<http://www.slate.com/articles/news_and_politics/jurisprudence/2013/10/section_
2_of_the_voting_rights_act_is_more_effective_than_expected_new_research.htm
l>.

Section 2 is the VRAs core remaining prohibition of racial discrimination in
voting. It bans practices that make it more difficult for minority voters to
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!"#$%&'( *+&,-. 67:
participate in the political process and elect representatives of their choice. It
applies to both redistricting (as in Texas) and voting restrictions (as in North Carolina).
And it just became a whole lot more important thanks to the Supreme Courts June
decision in Shelby County v. Holder, which neutered the VRAs other key provision,
Section 5.

Warrant: Section 2 can be easily expanded by Congress.

Stephanopoulos, Nicholas. "The Future of the Voting Rights Act." Slate Magazine. Slate,
23 Oct. 2013. Web. 06 Jan. 2014.
<http://www.slate.com/articles/news_and_politics/jurisprudence/2013/10/section_
2_of_the_voting_rights_act_is_more_effective_than_expected_new_research.htm
l>.

Congress could also strengthen Section 2 in a couple of ways. As to redistricting,
lawmakers could amend the provision so that it applied to districts with odd shapes
or with minority populations that were relatively small or heterogeneous. The idea
would be for Section 2, like Section 5, to protect all districts in which minority voters are
capable of electing their preferred candidates. And as to voting restrictions, Congress
could make Section 2 a shield whenever a law harmed minority voters more than
white voters. Unequal impact used to be enough to block a law under Section 5. It
could be made the standard for Section 2 too.

Warrant: Section Two allows lawsuits to be brought by discrimination or civil rights statutes.

Burling, James. "What the Voting Rights Act Ruling Means for Voters." PBS. PBS, 5
July 2013. Web. 07 Jan. 2014. <http://www.pbs.org/newshour/bb/politics/july-
dec13/vra_07-05.html>.

And I really think this does give us a good opportunity through Section 2 of the Voting
Rights Act, which allows people to bring lawsuits if there are discrimination
!"# %&'()*#+, -#. /0"12, 3*4&(-&5 6789


!"#$%&'( *+&,-. 67:
problems, and through other civil rights statutes as well. I think that we can move
forward. And this is a way of moving forward.

Impact: In the future, section two could be used to combat voter ID laws.

Stoughton, Kathleen M. "A New Approach to Voter ID Challenges: Section 2 of the
Voting Rights Act." The George Washington Law Review. GW Law Review, Jan.
2013. Web. 7 Jan. 2014. <http://www.gwlr.org/wp-
content/uploads/2013/01/Stoughton_81_1.pdf>.

This Note argues that a remedy can be found in section 2 of the Voting Rights Act:
plaintiffs can challenge strict voter ID laws by showing that they so
disproportionately affect minority voters that they dilute the vote of the minority
group as a whole, effectively abridging the right to vote on account of race or color
in violation of the Voting Rights Act.

Analysis: Instead of commonly looking to section four and five as the only effective parts of the
VRA, you can also look to the second and third sections that still exist in the status quo. In result,
these provisions can be improved and tailored to continue to have the benefits of the VRA but
extend it to the entire nation.
!"# %&'()*#+, -#. /0"12, 3*4&(-&5 6789


!"#$%&'( *+&,-. 67:
!;< = >(?&*)* !"(&+ >@"(0. A&-1+B1* >*C*&* D(.B1B-0 E*,+&-B#+

Argument: Since the Constitution is open to many competing interpretations the Supreme
Court, SC, should only be able to strike down a law if it is unconstitutional beyond a reasonable
doubt. In the case of section 4 of the Voting Rights Act it is clearly not unconstitutional beyond a
reasonable doubt.

Warrant: Court not intended to have broad reviewing power.

Gabin, Sanford B. "Judicial Review, James Bradley Thayer, and the "Reasonable Doubt"
Test." Hastings Constitutional Law Quarterly 3.4 (1976): 961-1014. Hastings
Constitutional Law Quarterly. Web. 04 Jan. 2014.
<http://www.hastingsconlawquarterly.org/archives/V3/I4/Gabin.pdf>.

Had a broader reviewing power been intended, Thayer argued, the judiciary would
have been allowed to hand down advisory opinions prior to the enactment of
legislation. The Philadelphia convention, however, declined to equate the Court with
a council of revision. The absence of an immediate judicial judgment of an acts
constitutionality reinforced the legislatures duty, imposed by the oath provision of
article VI of the Constitution, to make that original and possibly final judgment. By
the time constitutional questions reach the judiciary, the legislative decision might
have accomplished results of the profoundest importance throughout the country.
Thayer concluded that a power as momentous as the legislatures primary authority to
interpret entitles the actual determination of the legislature to a corresponding respect;
and this not on mere grounds of courtesy or conventional respect, but on very solid
grounds of policy and law

Warrant: The SC undermines the democratic process.

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!"#$%&'( *+&,-. 67:
Posner, Richard A. "The Rise and Fall of Judicial Self Restraint." California Law
Review100.3 (2012): 519-56. California Law Review. Web. 04 Jan. 2014.
<http://www.californialawreview.org/assets/pdfs/100-3/01-Posner.pdf>.

More important, the law made me do it protestations that pepper his correspondence
obscure the Darwinian streak that is so pronounced in his free- speech dissents

and in
Buck v. Bell (Three generations of imbeciles are enough). For Holmes, political
struggle was closely analogous to natural selectioneven an exemplification of it.
The strongest would win. Not that they necessarily deserved to win, though he wanted the
imbeciles to lose by not being allowed to reproduce and though he contemplated the
Darwinian character of the social struggle with unmistakable relish.

Darwinism is a
theory of adaptation, not of improvement. Judicial rulings invalidating modern
liberal legislation might be wise or foolish but in either case they would merely delay
the inevitable. The first requirement of a sound body of law is, that it should
correspond with the actual feelings and demands of the community, whether right
or wrong.

So judges should get out of the way of the struggle between unions and
employers, socialists and capitalists, no matter which side the judges wanted to
prevail. (Thayer shared Holmess disquietremarked emphatically in Holmess essay
The Path of the Law, published four years after Thayers articlewith the tendency of
the judges of his time to interpret the Constitution to forbid socialistic measures.) The
democratic political process was merely the civilized (because nonviolent) method of
registering the relative strength of the competing forces in societya substitute for
civil war in much the same way that settlement is a substitute for trial.

Warrant: Laws should only be overruled when unconstitutional beyond a reasonable doubt.

Thayer, James B. "The Origin and Scope of the American Doctrine of Constitutional
Law." Harvard Law Review 7.3 (1893): 129-56. American Memory. Library of
Congress. Web. 04 Jan. 2014.
<http://memory.loc.gov/service/gdc/scd0001/2007/20078131004or/20078131004
or.pdf>.
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!"#$%&'( *+&,-. 67:

I have accumulated these citations and run them back to the beginning, in order that it
may be clear that the rule in question is something more than a mere form of language, a
mere expression of courtesy and deference. It means far more than that. The courts have
perceived with more or less distinctness that this exercise of the judicial function does in
truth go far beyond the simple business which judges sometimes describe. If their duty
were in truth merely and nakedly to ascertain the meaning of the text of the constitution
and of the impeached Act of the legislature, and to determine, as an academic question,
whether in the court's judgment the two were in conflict, it would, to be sure, be an
elevated and important office, one dealing with great matters, involving large public
considerations, but yet a function far simpler than it really is. Having ascertained all this,
yet there remains a question -- the really momentous questionwhether, after all the
court can disregard the Act. It cannot do this as a mere matter of course, -merely
because it is concluded that upon a just and true construction the law is
unconstitutional. That is precisely the significance of the rule of administration that the
courts lay down. It can only disregard the Act when those who have the right to
make laws have not merely made a mistake, but have made a very clear one, -so
clear that it is not open to rational question. That is the standard of duty to which
the courts bring legislative Acts; that is the test which they apply, -not merely their
own judgment as to constitutionality, but their conclusion as to what judgment is
permissible to another department which the constitution has charged with the duty
of making it. This rule recognizes that, having regard to the great, complex, ever-
unfolding exigencies of government, much which will seem unconstitutional to one
man, or body of men, may reasonably not seem so to another; that the constitution
often admits of different interpretations; that there is often a range of choice and
judgment; that in such cases the constitution does not impose upon the legislature
any one specific opinion, but leaves open this range of choice; and that whatever
choice is rational is constitutional. This is the principle, which the rule that I have been
illustrating affirms and supports. The meaning and effect of it are shortly and very
strikingly intimated by a remark of Judge Cooley, to the effect that one who is a member
of a legislature may vote against a measure as being, in his judgment,
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!"#$%&'( *+&,-. 687
unconstitutional; and, being subsequently placed on the bench, when this measure,
having been passed by the legislature in spite of his opposition, comes before him
judicially, may there find it his duty, although he has in no degree changed his
opinion, to declare it constitutional.

Warrant: Section 4 of the voting rights act is not unconstitutional beyond a reasonable doubt.

Persily, Nathaniel. "The Promise and Pitfalls of the New Voting Rights Act." Yale Law
Journal 117.174 (2007): 174-253. Web. 4 Jan. 2014.
<http://yalelawjournal.org/images/pdfs/606.pdf>.

At the same time, any attempt to avoid disparate partisan treatment while reforming the
coverage formula must also comply with the congruence and proportionality standard. In
other words, the new coverage formula would have to be both politically fair and
justifiable as preventing or remedying violations of voting rights. A slapdash choice of
jurisdictions arising from a political compromise to balance out the partisan effects of a
new coverage regime would be incongruent with the geography of voting rights violators
almost by definition. As unsatisfying and constitutionally risky as resigning the VRA
regime to its current geographical reach may be, tinkering with it would have invited a
whole host of unknown problems. Whatever its drawbacks, the current coverage
formula had the virtue of already having been upheld by the Supreme Court.150
While the coverage formula might be outdated, advocates for the law at least would
have stare decisis on their side and could force the Court into the position of
explaining why a previously constitutional law was now unconstitutional.

Analysis: While most arguments on this topic will focus on specific arguments about the
constitutionality of section 4 of the VRA, arguments like this can open up new ground on an
otherwise severely restricted resolution. In order to make sure the argument gives you offense
you will need to warrant the final link that section 4 is not unconstitutional without a reasonable
doubt. The card above serves to warrant this but simply pointing out that there is much debate
over the decision and that the decision was 5-4 should probably be sufficient to convince a judge
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!"#$%&'( *+&,-. 688
of this. Despite its absence from current judicial practice, there is a myriad of literature on the
merits of judicial restraint with Justice Holmes perhaps being its most notable proponent. By
redefining the judicial framework of the SC this argument provides you with a couple of
strategic advantages over the Pro. First, arguments about the judicial framework of the SC will
obviously come before specific arguments about the VRA so this argument will be able to
outweigh any specific arguments made by the Pro. At the very least this will serve as a major
time suck as the Pro will likely need to block it to have a chance at winning. Second, since this
argument lies outside the immediately obvious scope of the resolution it is likely that many Pro
teams will simply not be prepared to engage this debate and thus you should have little trouble
winning it.


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!"#$%&'( *+&,-. 686
%:6 ; <(=&*)* !"(&+ <>"(0. ?&-1+@1* <*A*&* B(.@1@-0 C*,+&-@#+

Answer: Thayerism is academically extinct.

Warrant: Thayerisms weakest parts have been largely rejected by current legal theorists.

Posner, Richard A. "The Rise and Fall of Judicial Self Restraint." California Law
Review100.3 (2012): 519-56. California Law Review. Web. 04 Jan. 2014.
<http://www.californialawreview.org/assets/pdfs/100-3/01-Posner.pdf>.

I have tried to explain the vulnerability of Thayerian theory (it might better be called a
rhetoric than a theory), but I have not explained its death. It died on two fronts: in the
academy (except for the handful of hyper- Thayerians), and in the courts. Its academic
death is attributable in part to its incoherence, but more to the rise of the
constitutional theories that I mentioned earlier, which claim to show how correct
constitutional decisions can be generated confidently. They highlight the weakest
part of Thayers theory: that it tells judges to uphold statutes that they consider
unconstitutional. If they knew a statute was unconstitutional theyd have to strike it
down even in Thayers account; and the modern theorists have proved (though only
to their own satisfaction) that they can tell judges which outcomes in constitutional
cases are correct and which incorrect. The rise in academics confidence that they have
the keys to unlocking the Constitutions secrets is related to the vastly increased number
of professors specializing in constitutional law (because the reach of that law expanded
significantly during the 1960s and has continued to expand) and to the rising intellectual
ambition of legal academics as they draw further and further apart from legal practice.

Analysis: This answers the argument for severe judicial restraint by attacking its academic
legitimacy. Current legal theorists believe that even in complicated cases it is possible to rightly
decided on constitutionality and thus it would be incoherent to rule something that is rightly
believed to be unconstitutional as constitutional.
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!"#$%&'( *+&,-. 68:

Answer: Thayerism is empirically unrealistic.

Warrant: Imperfections of American politics undermine the theory.

Posner, Richard A. "The Rise and Fall of Judicial Self Restraint." California Law
Review100.3 (2012): 519-56. California Law Review. Web. 04 Jan. 2014.
<http://www.californialawreview.org/assets/pdfs/100-3/01-Posner.pdf>.

Brown v. Board of Education illustrates the Warren Courts activism, but it illustrates
something else as wellthe empirical unreality of Thayerism. Think of how a
Thayerian (Frankfurter, for example, an enthusiastic supporter of Brown) might defend
the decision. He could argue that the legislatures that had enacted public school
segregation and other racist legislation in the southern and border states could not
be considered authentic popular bodies because the large black populations in those
states had been effectively disfranchised. A similar argument could be made, in defense
of Baker v. Carr, about malapportioned legislatures: malapportionment entrenches
electoral minorities. But once one begins questioning Thayers sunny view of
legislatures, there is no stopping point. The U.S. Senate is malapportioned. The
American political process at all levels is corrupted by money, interest groups,
public ignorance and apathy, and inherent limitations of representative democracy,
in which the people vote for persons rather than for policies. Holmes was a realist in
the tradition of Thrasymachus, who famously declared that everywhere justice is the
same thing, the advantage of the stronger.

In a democracy, as in any other form of
government, might ultimately prevails, although the identity of the mighty differs in a
democracy. In America today the mighty are not oligarchs, aristocrats, or securities; they
are the old people, the ubiquitous seniors with their subsidized public pensions and
health care and propensity for single-issue voting. Judges, Holmes argued, had best get
out of the juggernauts path, though on occasion a piece of legislation might be so
revolting that they must take a stand. Holmess view of the legislative process is
overdramatized, but comes closer to the truth than Thayers view of legislators as
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!"#$%&'( *+&,-. 689
constitutional deliberators who if only left alone by judges would legislate as statesmen.
Frankfurter had, like Thayer, an exaggerated view of legislators ability and high-
mindedness; Bickel thought them at least educable by Justices who shared his values.

Warrant: Legislatures not able to judge constitution.

Calabresi, Steven G. "Thayer's Clear Mistake." Northwestern University Law
Review88.269 (1993): n. pag. Lexis Nexis. Web. 6 Jan. 2014.
<http://www.lexisnexis.com.proxy.uchicago.edu/lnacui2api/api/version1/getDocC
ui?oc=00240&hnsd=f&hgn=t&lni=3S3T-VYX0-00CW-
00BH&hns=t&perma=true&hv=t&hl=t&csi=7350&secondRedirectIndicator=true
>.
Moreover, legislatures are less disinterested than courts when it comes to enforcing
constitutional limits on government power. While such limits generally apply to
courts as well as to legislatures, it is nonetheless true that constitutional constraints
tend to impinge far more on legislative power than on judicial power. Accordingly,
when legislatures enforce constitutional guarantees they face an inherent conflict of
interest. They become to some degree "judges in their own cause."
n24
While it might be
possible for legislators to triumph over the temptation created by this conflict of interest
in ordinary times, they will probably not be able so to triumph when a momentary
passion is sweeping the body politic. And yet it is precisely at such times that
constitutional guarantees are most needed. Additionally, legislatures are notoriously
and particularly incompetent at responding to the claims of individuals and small
groups, since these entities tend to be less important in winning re-election. And yet
it is particularly individuals and members of such groups who may need
constitutional guarantees to protect against the tyranny of the majority. Generally
speaking, legislators will focus their energy mostly on the claims of large populous
interests, or on the claims of the wealthy and the powerful, since that tends to be the best
route to re-election. Once again, courts do this to a lesser degree because judges possess
life tenure and do not need to worry about re-election.

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!"#$%&'( *+&,-. 68:

Analysis: This shows that the theory of judicial restraint is faulty because it champions a
legislature that is in reality corrupt, unrepresentative, and unqualified. A theory of judicial
restraint so reliant on the legislature makes it hard to even consider Brown v. Board of Education
as the right decision, which is a conclusion that is hard to be content with.
Answer: Judicial review good for human rights.

Warrant: Progress in human rights inextricably linked to judicial review.

Chang, Wen-Chen. "Judicial Activism and Human Rights: A Comparative Approach in
the Context of Transitions" Paper presented at the annual meeting of the The Law
and Society Association, Renaissance Hotel, Chicago, Illinois, May 27,
2004 <Not Available>. 2009-05-
26 <http://www.allacademic.com/meta/p117220_index.html>

One of the most remarkable achievements in the twentieth-century is constitutional
development is the assertion of human rights. On one hand, we have seen the
codification and constitutionalization of human rights. On the other, constitutional
or high courts of many countries have begun to implement human rights by way of
judicial review. Consequently, an intertwined relationship between courts and
human rights is established. It remains to be examined, however, for what reasons
courts, instead of other political institutions, are linked to the assertion of human rights
and what are the institutional backgrounds and normative foundations for such a
relationship.
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!"#$%&'( *+&,-. 68:
!;< = >0*1+?"#, !0-(,* %00"@, !"#'&*,, +" !A"",*

Argument: The elections clause gives Congress broad Constitutional authority to make laws
regulating federal elections.

Warrant: Text of the election clause.

Chin, Gabriel et al. Amicus Curiae for Shelby County v. U.S. American Bar
Association. February 1, 2013. Web. January 6, 2014.<
http://www.americanbar.org/content/dam/aba/publications/supreme_court_previe
w/briefs-v2/12-96_resp_amcu_gcae-etal.authcheckdam.pdf>

The Elections Clause provides: The Times, Places and Manner of holding Elections for
Senators and Representatives, shall be prescribed in each State by the Legislature thereof;
but the Congress may at any time by Law make or alter such Regulations, except as to the
Places of choosing Senators.

Warrant: Necessary and proper clause enhances the elections clause.

Chin, Gabriel et al. Amicus Curiae for Shelby County v. U.S. American Bar
Association. February 1, 2013. Web. January 6, 2014.<
http://www.americanbar.org/content/dam/aba/publications/supreme_court_previe
w/briefs-v2/12-96_resp_amcu_gcae-etal.authcheckdam.pdf>

Id. Congress Elections Clause power is broad and plenary. Ex parte Siebold, 100
U.S. 371, 388 (1879). Congress enjoys general supervisory power over the whole
subject of federal elections. Id. at 387. Like all other powers directly granted to
Congress, Congress legislative authority over federal elections is enhanced by the
Necessary and Proper Clause, which applies to all . . . powers vested by [the]
Constitution in the government of the United States. U.S. Const. art. I, 8, cl. 18. In
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!"#$%&'( *+&,-. 68:
combination with the Necessary and Proper Clause, Congress has the discretion to
effect all means which are appropriate, MCulloch v. Maryland, 17 U.S. 316, 421
(1819), to meet the legitimate goal of protection of the integrity of elections. United
States v. Classic, 313 U.S. 299, 319 (1941) (internal quotation marks omitted). Section 5
is a legitimate exercise of Congress authority to protect the integrity of federal
elections. This Court should not disturb it.

Warrant: Supreme court precedent has given Congress broad power through elections clause.

Smiley v. Holm. Supreme Court of the United States. 11 Apr. 1932. Bloomberg Law.
Web. 06 Jan. 2014.
<http://www2.bloomberglaw.com/public/desktop/document/Smiley_v_Holm_285
_US_355_52_S_Ct_397_76_L_Ed_795_1932_Court_Opini/1>.

Consideration of the subject matter and of the terms of the provision requires affirmative
answer. The subject matter is the "times, places and manner of holding elections for
Senators and Representatives." It cannot be doubted that these comprehensive words
embrace authority to provide a complete code for congressional elections, not only
as to times and places, but in relation to notices, registration, supervision of voting,
protection of voters, prevention of fraud and corrupt practices, counting of votes,
duties of inspectors and canvassers, and making and publication of election returns;
in short, to enact the numerous requirements as to procedure and safeguards which
experience shows are necessary in order to enforce the fundamental right involved.
And these requirements would be nugatory if they did not have appropriate sanctions in
the definition of offenses and punishments. All this is comprised in the subject of "times,
places and manner of holding elections" and involves lawmaking in its essential features
and most important aspect.

Warrant: Elections clause is not limited by state sovereignty.

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!"#$%&'( *+&,-. 68:
Chin, Gabriel et al. Amicus Curiae for Shelby County v. U.S. American Bar
Association. February 1, 2013. Web. January 6, 2014.<
http://www.americanbar.org/content/dam/aba/publications/supreme_court_previe
w/briefs-v2/12-96_resp_amcu_gcae-etal.authcheckdam.pdf>

Our Constitution split the atom of sovereignty. U.S. Term Limits, 514 U.S. at 838
(Kennedy, J., concurring). Both the federal and state governments possess spheres of
ultimate sovereign authority. History is full of difficult cases and heated, even bloody,
disputes over where to draw the line between federal and state sovereign authority. But
when it comes to the authority over the regulations and means for electing federal
legislators, there is and has never been any doubt: Congress is sovereign.
5
When it
acts pursuant to its Elections Clause authority, Congress is not intruding on state
sovereign authority, even when it replaces or alters laws that the states, in the first
instance, had the authority (in fact, obligation) to adopt. State sovereignty provides
no limit on the authority of Congress to act pursuant to the Elections Clause.

Warrant: Case is facial challenge making election clause sufficient for constitutionality.

Tokaji, Daniel. "Shelby County v. Holder: Don't Forget the Elections
Clause."SCOTUSblog RSS. Bloomberg Law, 13 Feb. 2013. Web. 06 Jan. 2014.
<http://www.scotusblog.com/2013/02/shelby-county-v-holder-dont-forget-the-
elections-clause/>.

To be sure, there are some applications of Section 5 to state and local redistricting
plans, for example that cant be justified under the Elections Clause. But remember,
Shelby County has brought a facial challenge to the VRAs preclearance
requirements. Such challenges are disfavored because they run contrary to
established principles of judicial restraint. A facial challenge should be rejected
where there are some circumstances in which a statute may constitutionally be
applied. Like other local electoral jurisdictions, Shelby County administers federal
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!"#$%&'( *+&,-. 68:
elections as well as state and local elections. The Elections Clause is therefore a
sufficient basis upon which to reject Shelby Countys facial challenge without
considering the scope of Congresss power under the Fourteenth and Fifteenth
Amendments.

Analysis: The elections clause will be perhaps an underutilized argument by competitors, since
the Supreme Court decision never makes direct mention of it. There is, however, both Supreme
Court precedent and current legal opinion that views the elections clause as sufficient to uphold
the constitutionality of the coverage formula. This is especially true because Shelby County
brought a facial challenge to section 5 of the Voting Rights Act. This means that the plaintiff
must prove the law unconstitutional in all situations, not just in their applied situation.
Competitors will be able to demonstrate impressive knowledge of constitutional challenges to
judges if they possess a good grasp over the difference between facial and as-applied challenges.

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!"#$%&'( *+&,-. 667
%:6 ; <0*1+="#, !0-(,* %00">, !"#'&*,, +" !?"",*

Answer: States should retain power in regulating elections.

Warrant: Framers and precedent give power to states.

Shelby County v. Holder. 570 U.S. __.Supreme Court of the United State. 2013.
Supremecourt.gov. Web. 1/3/2014.
<http://www.supremecourt.gov/opinions/12pdf/12-96_6k47.pdf>

More specifically, the Framers of the Constitution intended the States to keep for
themselves, as provided in the Tenth Amendment, the power to regulate elections.
Gregory v. Ashcroft, 501 U. S. 452, 461462 (1991) (quot- ing Sugarman v. Dougall,
413 U. S. 634, 647 (1973); some internal quotation marks omitted). Of course, the
Federal Government retains significant control over federal elections. For instance, the
Constitution authorizes Congress to establish the time and manner for electing Senators
and Representatives. Art. I, 4, cl. 1; see also Arizona v. Inter Tribal Council of Ariz.,
Inc., ante, at 46. But States have broad powers to determine the conditions under
which the right of suffrage may be exercised. Carrington v. Rash, 380 U. S. 89, 91
(1965) (internal quotation marks omitted); see also Arizona, ante, at 1315. And [e]ach
State has the power to prescribe the qualifications of its officers and the manner in
which they shall be chosen. Boyd v. Nebraska ex rel. Thayer, 143 U. S. 135, 161
(1892). Drawing lines for congressional districts is likewise primarily the duty and
responsibility of the State. Perry v. Perez, 565 U. S. ___, ___ (2012) (per curiam)
(slip op., at 3) (internal quotation marks omitted).

Analysis: This provides precedent that states remain some power in regulating elections, such
that the elections clause should not completely override equal sovereignty.

Answer: Elections clause does not justify all of preclearance.
!"# %&'()*#+, -#. /0"12, 3*4&(-&5 6789


!"#$%&'( *+&,-. 668

Warrant: A decision on just the election clause would leave preclearance open to future
challenges.

Tokaji, Daniel. "Shelby County v. Holder: Don't Forget the Elections
Clause."SCOTUSblog RSS. Bloomberg Law, 13 Feb. 2013. Web. 06 Jan. 2014.
<http://www.scotusblog.com/2013/02/shelby-county-v-holder-dont-forget-the-
elections-clause/>.

Its true that a ruling based only on the Elections Clause would leave open the
possibility of VRA preclearance being challenged piecemeal in the future. For
example, a covered jurisdiction might challenge the statutes application to state or
local redistricting plans. At that point, the Fourteenth and Fifteenth Amendment
questions would have to be addressed. Its possible that the Court would ultimately
conclude that some applications of the statute exceed Congresss authority as to
some state or local jurisdictions. But again, the Court shouldnt declare VRA
preclearance facially unconstitutional, if it concludes that the Elections Clause authorizes
some applications of the statute. For supporters of preclearance, that would be a much
better outcome than having Sections 4(b) and 5 struck down on their face.

Warrant: Elections clause does not justify certain types of preclearance.

Balkin, Jack. "Balkinization: Teaching Materials for Shelby County v.
Holder."Balkinization: Teaching Materials for Shelby County v. Holder. 20 July
2013. Web. 06 Jan. 2014. <http://balkin.blogspot.com/2013/07/teaching-
materials-for-shelby-county-v.html>.

Could Congress have passedor could it reenactsection 4 of the Voting Rights Act
under the Elections Clause? Note that under the Elections Clause, Congress could not
require preclearance of changes in voting rules affecting only state and local
government officesand a very large number of preclearance issues concern
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!"#$%&'( *+&,-. 666
elections for state and local officials. In addition, Congress could not require
preclearance of changes in voter eligibility rules, only changes in the way that states
proved eligibility to register or vote, the kinds of voting machines used, the number
and location of polling places, the hours and days available for polling, and so
on. For example, Congress could probably not require preclearance of voting rules that
disenfranchise felons, but it might be able to regulate how states purge voter rolls of
suspected felons and non-citizens.

Analysis: This first card doesnt necessarily respond to the arguments about the elections clause
being sufficient to overcome a facial challenge. If your opponent however does not have a good
grasp over explaining facial challenges this may be sufficient to show that the elections clause
does not justify all of the preclearance requirements. If reading the first card, however, please be
prepared to acknowledge that Tokaji does indeed believe that the Supreme Court made the
wrong decision. You will need to perhaps supply your own analysis to overcome arguments
about the facial challenge.
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!"#$%&'( *+&,-. 66:
!;< = >*1+?"# 3?@* ?, AB* !"#,+?+(+?"#-0 30-CD #"+ >*1+?"# 3"(&

Argument: Section Five is the enforcement clause of the unequal and unconstitutional elements
of the VRA, not Section Four.

Warrant: Section 5 is the pre-clearance clause of the VRA.

Roth, Zachary. "Supreme Court Guts Landmark Civil Rights Law." Msnbc. Nbc
Universal, 25 June 2013. Web. 07 Jan. 2014.
<http://www.msnbc.com/msnbc/supreme-court-guts-landmark-civil-rights-law>.

Section 5 of the Voting Rights Act requires that certain jurisdictions with a history
of racial discrimination, including most southern states, submit any changes to their
election systems to the U.S. Justice Department for pre-clearance.

Warrant: Section 5 meant to supplement and specifically use the goals of section 2 in certain
areas.

Shapiro, Ilya. "The Voting Rights Act Doesnt Reflect Current Political Conditions."
Cato Institute. Cato Institute, 27 Feb. 2013. Web. 07 Jan. 2014.
<http://www.cato.org/publications/commentary/voting-rights-act-doesnt-reflect-
current-political-conditions>.

Moreover, it is Section 2the nationwide ban on racial discrimination in voting
that is the heart of the Voting Rights Act. Section 5, meanwhile, was a temporary
tool that supplemented Section 2 and overcame widespread and persistent
discrimination in votingthus eliminating the extraordinary circumstances that
originally justified it.

Warrant: Conditions necessary for Section 5 no longer met.
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!"#$%&'( *+&,-. 669
Justice Ginsburg. "SHELBY COUNTY v. HOLDER." Legal Information Institute.
Cornell University Law School, 25 June 2013. Web. 04 Jan. 2014.
<http://www.law.cornell.edu/supremecourt/text/12-96>.

Though 5s preclearance requirement represented a shar[p] depart[ure] from
basic principles of federalism and the equal sovereignty of the States, ante, at 9, 11,
the Court upheld the measure against early constitutional challenges because it was
necessary at the time to address voting discrimination where it persist[ed] on a
pervasive scale.

Today, our Nation has changed. [T]he conditions that originally justified [5] no
longer characterize voting in the covered jurisdictions.

Warrant: Section 5 is an expansion of federal power that is no longer needed.

Weinstein, Matthew. "Beyond the Sensationalism." Harvard Political Review RSS.
Harvard Political Review, 18 May 2013. Web. 06 Jan. 2014.
<http://harvardpolitics.com/united-states/beyond-the-sensationalism/>.

Section 5 is widely considered a vast expansion of federal power, necessary to
prevent voter discrimination in the 1960s. Nevertheless, preclearance significantly
intrudes upon traditional state powers to set voting standards. Such an intrusion may
no longer be justified in light of reduced levels of discrimination. Ilya Shapiro, senior
fellow of constitutional studies at the Cato Institute, described preclearance to the HPR
as a big blunt intrusion into state powers that was outside the constitutional norm
and originally justified by the exceptional conditions on the ground.

Impact: The level of discrimination in the 21
st
century is no longer proportional to Section 5.

Pitts, Michael J. "Section 5 Of The Voting Rights Act: A Once And Future Remedy?"
Denver University Law Review. Robert H. McKinney School of Law, 19 Apr.
!"# %&'()*#+, -#. /0"12, 3*4&(-&5 6789


!"#$%&'( *+&,-. 66:
2004. Web. 7 Jan. 2014.
<http://mckinneylaw.iu.edu/instructors/pitts/denver_final.pdf>.

However, because the level of purposeful discrimination in voting has by all
accounts diminished, the Court, especially one with a generally conservative federalist
bent, seems unlikely to find the same unique and stringent Section 5 remedy initially
passed in 1965 to be congruent and proportional to the modern-day dilemma of
voting discrimination.

Analysis: Section 4 merely acted as a list of countries that section five rules would abide to. By
not ruling section five unconstitutional in conjunction with Section 4, the Court did not rightfully
eliminate the unequal and outdated elements of the VRA.
!"# %&'()*#+, -#. /0"12, 3*4&(-&5 6789


!"#$%&'( *+&,-. 66:
%;6 < =*1+>"# 3>?* >, @A* !"#,+>+(+>"#-0 30-BC #"+ =*1+>"# 3"(&

Answer: Section 5 is a crucial part of the fourteenth amendment, unlike section 4.

Warrant: Multiple parts of the fourteenth amendment are focused on preclearance of certain
states.

Reed Amar, Akhil. "The Lawfulness of Section 5 and Thus of Section 5." Harvard
Law Review Forum. Harvard Law Review, 2013. Web. 06 Jan. 2014.
<http://www.harvardlawreview.org/issues/126/february13/forum_989.php>.

But if section 5 of the VRA is unconstitutional, why wasnt section 5 of the Fourteenth
Amendment itself unconstitutional? For that section and indeed every section of
the Fourteenth Amendment was itself adopted by a process in which certain states
were subject to a kind of selective preclearance. In the very process by which section
5 and the rest of the Fourteenth Amendment were adopted, certain states with sorry
electoral track records were obliged to get preapproval from federal officials in
order to do things that other states with cleaner electoral track records were
allowed to do automatically.

Answer: Section 5 was invalidated when section four was ruled unconstitutional.

Warrant: Multiple parts of the fourteenth amendment are focused on preclearance of certain
states.

Whitaker, L. Paige. "Congressional Redistricting and the Voting Rights Act: A Legal
Overview." Congressional Research Service. Federation of American Scientists,
30 Aug. 2013. Web. 5 Jan. 2014. <http://www.fas.org/sgp/crs/misc/R42482.pdf>.

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!"#$%&'( *+&,-. 66:
Although the Court invalidated only the coverage formula in Section 4, by extension,
Section 5 has been rendered currently inoperable. As a result, the nine states and six
jurisdictions previously covered under the formula are no longer subject to the
VRAs preclearance requirement.

Warrant: Section 5 does not have significance without section four.

Liptak, Adam. "Supreme Court Invalidates Key Part of Voting Rights Act." The New
York Times. The New York Times, 25 June 2013. Web. 5 Jan. 2014.
<http://www.nytimes.com/2013/06/26/us/supreme-court-
ruling.html?pagewanted=all&_r=0>.

The decision did not strike down Section 5, but without Section 4, the later section
is without significance unless Congress passes a new bill for determining which
states would be covered.

Answer: Section 5 has successfully pre-cleared a significant amount of racially discriminatory
laws in the covered districts.

Warrant: There were more preclearance objections in covered jurisdictions between 1982 and
2004 than there were from 1965 and 1982.

Machen, Ronald C. "Memorandum Of Law In Opposition To Plaintiffs Motion For
Summary Judgment And In Support Of Defendants Motion For Summary
Judgment." Department of Justice. Department of Justice, 25 June 2012. Web. 5
Jan. 2014. <http://www.justice.gov/crt/about/app/briefs/floridabrief.pdf>.

It also found further categories of evidence that supported Congresss conclusion
that intentional racial discrimination in voting remains serious and widespread
and that Section 5 preclearance is still needed:
!"# %&'()*#+, -#. /0"12, 3*4&(-&5 6789


!"#$%&'( *+&,-. 66:
Over 700 objections by the Attorney General between 1982 and mid-2006,
including at least 423 purpose-based objections between 1980 and 2004;
A consistent number of objections both pre-and post-1982 Reauthorization,
including 626 objections from 1982 to 2004 and 490 between 1965 and 1982;

Analysis: Depending on the strategy you have present in your case, you can either differentiate
the importance of section five from section four, argue that section five was invalidated by the
unconstitutional ruling of four, or outweigh the harms of government intrusion with the amount
of objections the preclearance clause has raised.



!"# %&'()*#+, -#. /0"12, 3*4&(-&5 6789


!"#$%&'( *+&,-. 66:
!;< = >&*10*-&-#1* ?+@00 <*1*,,-&5

Argument: The Supreme Court has ruled that the coverage formula is constitutional in the past
because it was necessary to address voting discrimination. Preclearance is still necessary to
combat voting discrimination and thus the logic should still be constitutional.

Warrant: Roberts concedes that coverage formula was rightly called constitutional in past.

Shelby County v. Holder. 570 U.S. __.Supreme Court of the United State. 2013.
supremecourt.gov. Web. 1/3/2014.
<http://www.supremecourt.gov/opinions/12pdf/12-96_6k47.pdf>

The Voting Rights Act of 1965 employed extraordinary measures to address an
extraordinary problem. Section 5 of the Act required States to obtain federal permission
before enacting any law related to votinga drastic departure from basic principles of
federalism. And 4 of the Act applied that requirement only to some Statesan equally
dramatic departure from the principle that all States enjoy equal sovereignty. This was
strong medicine, but Congress determined it was needed to address entrenched
racial discrimination in voting, an insidious and pervasive evil which had been
perpetuated in certain parts of our country through unremitting and ingenious
defiance of the Constitution. South Carolina v. Katzenbach, 383 U. S. 301, 309 (1966).
As we explained in upholding the law, exceptional conditions can justify legislative
measures not otherwise appropriate. Id., at 334. Reflecting the unprecedented nature
of these measures, they were scheduled to expire after five years. See Voting Rights Act
of 1965, 4(a), 79 Stat. 438.

Warrant: The legislative record to warrant the 2006 reauthorization is vast.

!"# %&'()*#+, -#. /0"12, 3*4&(-&5 6789


!"#$%&'( *+&,-. 6:7
Shelby County v. Holder. 570 U.S. __.Supreme Court of the United State. 2013.
supremecourt.gov. Web. 1/3/2014.
http://www.supremecourt.gov/opinions/12pdf/12-96_6k47.pdf

The number of discriminatory changes blocked or deterred by the preclearance
requirement suggests that the state of voting rights in the covered jurisdictions would
have been significantly different absent this remedy. Surveying the type of changes
stopped by the preclearance procedure conveys a sense of the extent to which 5
continues to protect minority voting rights. Set out below are characteristic examples of
changes blocked in the years leading up to the 2006 reauthorization: In 1995, Mississippi
sought to reenact a dual voter registration system, which was initially enacted in 1892 to
disenfranchise Black voters, and for that reason, was struck down by a federal court in
1987. H. R. Rep. No. 109478, at 39. Following the 2000 census, the City of Albany,
Georgia, proposed a redistricting plan that DOJ found to be designed with the purpose to
limit and retrogress the increased black voting strength . . . in the city as a whole. Id., at
37 (internal quotation marks omitted). In 2001, the mayor and all-white five-member
Board of Aldermen of Kilmichael, Mississippi, abruptly canceled the towns election
after an unprecedented number of African-American candidates announced they were
running for office. DOJ required an election, and the town elected its first black mayor
and three black aldermen. Id., at 3637. In 2006, this Court found that Texas attempt to
re- draw a congressional district to reduce the strength of Latino voters bore the mark of
intentional dis- crimination that could give rise to an equal protection violation, and
ordered the district redrawn in compliance with the VRA. League of United Latin
American Citizens v. Perry, 548 U.S. 399, 440 (2006). In response, Texas sought to
undermine this Courts order by curtailing early voting in the district, but was blocked by
an action to enforce the 5 preclearance requirement.

Warrant: Preclearance rejection data under representative of attempted discrimination.

!"# %&'()*#+, -#. /0"12, 3*4&(-&5 6789


!"#$%&'( *+&,-. 6:8
Persily, Nathaniel. "The Promise and Pitfalls of the New Voting Rights Act." Yale Law
Journal 117.174 (2007): 174-253. Web. 4 Jan. 2014.
<http://yalelawjournal.org/images/pdfs/606.pdf>.

A better indicator of section 5s deterrent effect, however, might be the number of
DOJ Requests for More Information (MIRs) and the rate of withdrawal of voting
changes pursuant to such requests.106 After all, the fact that the preclearance regime
leads to few denials could simply mean that the section is working as intended. Like any
other law, section 5s effectiveness should not be evaluated by the number of times it
is broken. The Voting Section of the Civil Rights Division files a Request for More
Information when the submission from the jurisdiction does not provide all the
information needed to evaluate the potential retrogressive effect of a voting
change.107 An MIR also represents a DOJ signal that the voting change might be found
retrogressive (and denied preclearance) unless the jurisdiction allays the DOJs concerns.
Since 1982, DOJ has sent over 800 requests for more information regarding voting
changes, leading jurisdictions to withdraw their submissions in 205 instances and
change their submissions in many others.108 Again, as a total share of preclearance
submissions, this represents a small fraction, but it gives a sense of how many dogs did
not bark as a result of the threat of a denial of preclearance.

Analysis: This may be a stock argument but it can certainly be an effective one if argued well.
There are tons of examples and empirical evidence pointing to the fact that the preclearance
requirements are still working and necessary to prevent voter discrimination in the regions
covered by section 4s coverage formula. Remember that the coverage formula was ruled
Constitutional in the original VRA so you should make sure to point out that it is the Pros
burden to prove sufficient improvement since then.

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!"#$%&'( *+&,-. 6:6
%;6 < =&*10*-&-#1* >+?00 @*1*,,-&5

Answer: The coverage formula is outdated.

Warrant: The coverage formula doesnt cover some of the worst offenders.

Persily, Nathaniel. "The Promise and Pitfalls of the New Voting Rights Act." Yale Law
Journal 117.174 (2007): 174-253. Web. 4 Jan. 2014.
<http://yalelawjournal.org/images/pdfs/606.pdf>.

Nothing akin to the neutral triggers of past reauthorizations could have achieved that
easily. Those seeking to expand coverage struggled to find a formula similar to the
existing one that would capture an appropriate group of jurisdictions while passing
constitutional muster and not giving rise to concerted political opposition. That turned out
to be an impossible task. As described above, voter turnout rates (either in the aggregate
or racial disparities) would not do so,146 nor would a history of successful voting rights
lawsuits (for example, cover all those jurisdictions that had been found guilty of a
violation of section 2 of the VRA). Moreover, no objective statistical criteria could
have added the most recent bad actors (Ohio and Florida) to the list of currently
covered jurisdictions. Indeed, as Richard Pildes has argued, the bad actors of recent
elections were discovered principally after the fact when a competitive election and
subsequent litigation exposed the problems in those states election laws and
administration.

Analysis: This proves both that circumstances have changed since 1965 and thus that the current
coverage formula is outdated, and also that the current coverage formula is not still effective in
stopping voter discrimination across the entire country
.
Answer: Covered districts not unique from uncovered districts.

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!"#$%&'( *+&,-. 6::
Warrant: Covered and uncovered districts have similar voter turnout rates.

Persily, Nathaniel. "The Promise and Pitfalls of the New Voting Rights Act." Yale Law
Journal 117.174 (2007): 174-253. Web. 4 Jan. 2014.
<http://yalelawjournal.org/images/pdfs/606.pdf>.

For the 2006 reauthorization, voter registration and turnout statistics either aggregate
registration and turnout by state or differential registration and turnout by racial group
did not help the cause much.84 Turnout rates in the covered and uncovered
jurisdictions do not differ consistently.85 Both the House and the Senate Reports
also noted the remarkable decrease in differential registration and turnout rates
among racial groups. The Senate Report emphasized success, noting that in some
covered jurisdictions (California, Georgia, North Carolina, Mississippi, and Texas)
African American turnout exceeded that of whites.86 The House Report also noted
success, but made express findings as to differential turnout rates for African Americans
in Virginia and South Carolina, and Hispanics in Texas and Florida, that provided
evidence of the continued need for section 5.

Warrant: This is the standard for constitutionality.

Shelby County v. Holder. 570 U.S. __.Supreme Court of the United State. 2013.
supremecourt.gov. Web. 1/3/2014.
http://www.supremecourt.gov/opinions/12pdf/12-96_6k47.pdf

We explained that 5 imposes substantial federalism costs and differentiates
between the States, despite our historic tradition that all the States enjoy equal
sovereignty. Id., at 202, 203 (internal quotation marks omitted). We also noted that
[t]hings have changed in the South. Voter turnout and registration rates now
approach parity. Blatantly discriminatory evasions of federal decrees are rare. And
minority candidates hold office at unprece- dented levels. Id., at 202. Finally, we
questioned whether the problems that 5 meant to address were still concen- trated in
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!"#$%&'( *+&,-. 6:9
the jurisdictions singled out for preclearance. Id., at 203.

Analysis: This shows that the VRA has achieved its purpose since 1965 and that the coverage
formula is no longer up to date as the covered jurisdictions no longer have generally less
minority turnout. The first card does mention that there were still problems in Virginia and South
Carolina but that does not justify the coverage formula covering all the other jurisdictions.

Answer: The VRA has sufficiently achieved its goal no longer needed.

Warrant: The rate of preclearance denials has decreased.

Persily, Nathaniel. "The Promise and Pitfalls of the New Voting Rights Act." Yale Law
Journal 117.174 (2007): 174-253. Web. 4 Jan. 2014.
<http://yalelawjournal.org/images/pdfs/606.pdf>.

Despite large increases in the volume of preclearance requests, the rate and
absolute number of DOJ denials of preclearance have declined in recent years.
Although the total number of preclearance denials (682) was greater for the twenty-five
years after the 1982 amendments than during the first seventeen years of the VRA,100
the rate of DOJ objections to preclearance requests has decreased from over 4% in
the first five years after the Voting Rights Act, to between 0.05% and 0.23% from
1983 to 2002.101 With only ninety-two total objections in the last ten years, the
annual objection rate since the mid-1990s has dropped to an average of less than
0.2%.

Analysis: This shows that the preclearance process is no longer as necessary as it was in the
years immediately following the VRA. This demonstrates the necessary change since the VRA,
such that the circumstances are no longer as drastic to demand the measures of the coverage
formula.

Argument: Department of Justice uses bad behavior in judging preclearance.
!"# %&'()*#+, -#. /0"12, 3*4&(-&5 6789


!"#$%&'( *+&,-. 6:;

Warrant: They are lobbied by leftist groups.

Adams, Christian. "Shelby County v. Holder: Bad Behavior by DOJ Contributes to the
Fall of Section 5." SCOTUSblog RSS. Bloomberg Law, 12 Feb. 2013. Web. 06
Jan. 2014. <http://www.scotusblog.com/2013/02/shelby-county-v-holderbad-
behavior-by-doj-contributes-to-the-fall-of-section-5/>.


First, the long record of abuse of power by Justice Department lawyers enforcing
Section 5 is a constitutional disgrace. Abuse, you ask? Yes, the DOJ has been
forced to pay hundreds of thousands of dollars in sanctions because of its corrupt
collaboration with leftist third-party groups in Section 5 reviews. And thats just for
starters. Substantively, the DOJ has again returned to the good old days of collaboration
and black-max, impermissibly granting extraordinary access to the process to certain
organizations. DOJ has also adopted indefensible and opaque substantive guidelines,
such as a reverse Arlington Heights inquiry on the intent prong of Section 5. It
demands that states prove a circumstantial negative. This abuse of power was evident in
the photo identification cases in Texas and South Carolina. DOJ demanded evidence of
copious voter fraud as circumstantial proof of lack of discriminatory intent. This was but
one outlandish theory ultimately rejected entirely by the district court. But DOJ
continues to abuse its power in other ways, continuing to require states and counties
to prove a negative, and to prove an absence of circumstantial evidence of
discriminatory intent. This abuse is compounded by the fact many of the lawyers
conducting the DOJ inquiry come from activist backgrounds wholly at odds with an
objective and fair-minded evidentiary inquiry.

Analysis: This arguments shows that the current system of preclearance is not conducted in such
a way that is fair to continue. The states covered by the coverage formula are unfairly treated to
the point where they are harmed and equal sovereignty is violated.

!"# %&'()*#+, -#. /0"12, 3*4&(-&5 6789


!"#$%&'( *+&,-. 6:;
!<= > ?*1@,@"# A*)"B*, C&"'&*,, D-.* +" C&"B@.* EF(-0@+5

Argument: Removal of section four voids the effectiveness of the VRA, thus eliminating the
progress made to prevent voter discrimination.

Warrant: Ruling section 4 unconstitutional made section 5, in addition, and the preclearance
rules invalid.

Liptak, Adam. "Supreme Court Invalidates Key Part of Voting Rights Act." The New
York Times. The New York Times, 25 June 2013. Web. 5 Jan. 2014.
<http://www.nytimes.com/2013/06/26/us/supreme-court-
ruling.html?pagewanted=all&_r=0>.

The decision did not strike down Section 5, but without Section 4, the later section
is without significance unless Congress passes a new bill for determining which
states would be covered.

Warrant: Section 5 requires that states have voting procedures approved by the government.

Peralta, Eyder, Scott Neuman, and Mark Memmott. "Supreme Court Strikes Down Key
Provision Of Voting Rights Law." National Public Radio. NPR, 25 June 2012.
Web. 05 Jan. 2014. <http://www.npr.org/blogs/thetwo-
way/2013/06/25/195506795/supreme-court-strikes-down-key-provision-of-
voting-rights-law>.

As the AP explains it, the Supreme Court has essentially decided that Section 5 of the
act the part that requires certain states with a history of discrimination to have
changes to any voting procedures approved by the federal government cannot be
enforced until Congress "comes up with a new way of determining which states and
localities require federal monitoring of elections."
!"# %&'()*#+, -#. /0"12, 3*4&(-&5 6789


!"#$%&'( *+&,-. 6:;


Warrant: It is politically impossible to redefine what jurisdictions should now be covered by the
VRA.

Shapiro, Ilya. "What Changes After Supreme Court Ruling On Voting Rights Act."
National Public Radio. National Public Radio, 25 June 2013. Web. 5 Jan. 2014.
<http://www.npr.org/2013/06/25/195557564/what-changes-after-supreme-court-
ruling-on-voting-rights-act>.

That's why in 2006 they didn't adjust the coverage formula. Politically it would be
impossible to single out new jurisdictions which have a greater risk of
discriminating against minority voters. And so this is effectively the death of the
Voting Rights Act but with the fig leaf that all that's being done here is asking Congress
to tweak the coverage formula.

Warrant: The most effective part of the VRA is the federal preclearance.

Justice Ginsburg. "SHELBY COUNTY v. HOLDER." Legal Information Institute.
Cornell University Law School, 25 June 2013. Web. 04 Jan. 2014.
<http://www.law.cornell.edu/supremecourt/text/12-96>.

[V]oting discrimination still exists; no one doubts that. Ante, at 2. But the Court today
terminates the remedy that proved to be best suited to block that discrimination. The
Voting Rights Act of 1965 (VRA) has worked to combat voting discrimination where
other remedies had been tried and failed. Particularly effective is the VRAs
requirement of federal preclearance for all changes to voting laws in the regions of
the country with the most aggravated records of rank discrimination against
minority voting rights.

!"# %&'()*#+, -#. /0"12, 3*4&(-&5 6789


!"#$%&'( *+&,-. 6:;
Impact: Absent of the preclearance, the districts would likely have a different state of voting
rights.

Justice Ginsburg. "SHELBY COUNTY v. HOLDER." Legal Information Institute.
Cornell University Law School, 25 June 2013. Web. 04 Jan. 2014.
<http://www.law.cornell.edu/supremecourt/text/12-96>.

The number of discriminatory changes blocked or deterred by the preclearance
requirement suggests that the state of voting rights in the covered jurisdictions
would have been significantly different absent this remedy.

Impact: VRA has made progress in eliminating first-generation barriers but second-generation
barriers still exist.

Justice Ginsburg. "SHELBY COUNTY v. HOLDER." Legal Information Institute.
Cornell University Law School, 25 June 2013. Web. 04 Jan. 2014.
<http://www.law.cornell.edu/supremecourt/text/12-96>.

After considering the full legislative record, Congress made the following findings:
The VRA has directly caused significant progress in eliminating first-generation
barriers to ballot access, leading to a marked increase in minority voter registration and
turnout and the number of minority elected officials. 2006 Reauthorization 2(b)(1). But
despite this progress, second generation barriers constructed to prevent minority
voters from fully participating in the electoral process continued to exist, as well as
racially polarized voting in the covered jurisdictions, which increased the political
vulnerability of racial and language minorities in those jurisdictions.

Analysis: By voiding section four of the VRA, the Supreme Court has impacted the ability of the
federal government to ensure that voting discrimination is prevented. Since Congress is unlikely
to pass new legislation, all the progress made by the VRA is less likely to help second-generation
minority voters in the future.

!"# %&'()*#+, -#. /0"12, 3*4&(-&5 6789


!"#$%&'( *+&,-. 6:;
%<6 = >*1?,?"# @*)"A*, B&"'&*,, C-.* +" B&"A?.* DE(-0?+5
Answer: There are other factors involved in overcoming barriers to minority voting that VRA
did not address.

Warrant: Definition of racially polarized voting.

Buscemi, Peter. "Brief For Professors Richard L. Engstrom, Theodore S. Arrington, And
David T. Canon As Amici Curiae In Support Of Respondents." The Ohio State
University, Michael E. Moritz College of Law. Counsel for Amici Curiae, 1 Feb.
2013. Web. 5 Jan. 2014.
<http://moritzlaw.osu.edu/electionlaw/litigation/documents/BriefforEngstrometal
asAmiciCuriae.pdf>.

Racially polarized voting exists when there is an empirical correlation between the
race of a voter and the way in which the voter votes.

Warrant: Racially polarized voting increases the vulnerability of racial minorities to
discriminatory changes in voting law.

Justice Ginsburg. "SHELBY COUNTY v. HOLDER." Legal Information Institute.
Cornell University Law School, 25 June 2013. Web. 04 Jan. 2014.
<http://www.law.cornell.edu/supremecourt/text/12-96>.

While racially polarized voting alone does not signal a constitutional violation, it is
a factor that increases the vulnerability of racial minorities to discriminatory
changes in voting law. The reason is twofold. First, racial polarization means that
racial minorities are at risk of being systematically outvoted and having their
interests underrepresented in legislatures. Second, when political preferences fall
along racial lines, the natural inclinations of incumbents and ruling parties to
!"# %&'()*#+, -#. /0"12, 3*4&(-&5 6789


!"#$%&'( *+&,-. 697
entrench themselves have predictable racial effects. Under circumstances of severe
racial polarization, efforts to gain political advantage translate into race-specific
disadvantages.

Warrant: Racially polarized voting encourages vote dilution.

Buscemi, Peter. "Brief For Professors Richard L. Engstrom, Theodore S. Arrington, And
David T. Canon As Amici Curiae In Support Of Respondents." The Ohio State
University, Michael E. Moritz College of Law. Counsel for Amici Curiae, 1 Feb.
2013. Web. 5 Jan. 2014.
<http://moritzlaw.osu.edu/electionlaw/litigation/documents/BriefforEngstrometal
asAmiciCuriae.pdf>.

Although racially polarized voting is not itself state action, there is a link between
racially polarized voting and discriminatory exclusion of minority voters from the
democratic process. Specifically, racially polarized voting makes certain
discriminatory voting practices, such as vote dilution, increasingly possible. Vote
dilution occurs when the effectiveness of minority voters is minimized or canceled
out through state action.

Warrant: For decades, racially polarized voting has been consistent throughout the country for
certain minorities.

Persily, Nathaniel. "Regional Differences in Racial Polarization in the 2012 Presidential
Election: Implications for the Constitutionality of Section 5 of the Voting Rights
Act." Harvard Law Review. Harvard Law Review, 2013. Web. 05 Jan. 2014.
<http://www.harvardlawreview.org/issues/126/april13/forum_1005.php>.

Our previous article detailed the well-known racial and regional differences in
presidential voting patterns according to statewide exit polls from 1984 to 2004. Over
this period, minority voters supported the Democratic candidate relatively
!"# %&'()*#+, -#. /0"12, 3*4&(-&5 6789


!"#$%&'( *+&,-. 698
consistently and regardless of the coverage status of a jurisdiction. African
Americans, in either type of jurisdiction, supported the Democratic candidate at a
rate of 84%. Latinos were less pronounced or consistent in their support, but 61%
of Latinos in the covered and 64% in the noncovered (or partially covered)
jurisdictions supported the Democratic candidate, on average.

Warrant: Racially polarized voting has increased.

Persily, Nathaniel. "Regional Differences in Racial Polarization in the 2012 Presidential
Election: Implications for the Constitutionality of Section 5 of the Voting Rights
Act." Harvard Law Review. Harvard Law Review, 2013. Web. 05 Jan. 2014.
<http://www.harvardlawreview.org/issues/126/april13/forum_1005.php>.

As compared to the twenty-year trend that preceded it, racial polarization
increased in the 2008 presidential election. In both the covered and noncovered states,
Barack Obama received a large, above-average share of the minority vote, such that the
white-black and white-Latino gap increased.

Analysis: Although the VRA has made significant progress in certain jurisdictions, certain
factors such as racially polarized voting still infringe on every Americans ability to vote. By
passing legislation for the whole country, this factor can also be focused on to allow for the
maximized prevention of discrimination.
!"# %&'()*#+, -#. /0"12, 3*4&(-&5 6789


!"#$%&'( *+&,-. 696
!:; < =+-+*, >"#?+ ;**. @" /* @&*-+*. AB(-005

Argument: The notion that states must be treated equally by federal legislation is not supported
by constitutional text or precedent.

Warrant: Federal assumption of state equality unfounded.

Price, Zachary S. "Namudnos Non-Existent Principle Of State Equality." NYU Law
Review 88 (2013): 24-40. NYU Law Review Online. Web. 06 Jan. 2014.
<http://www.nyulawreview.org/sites/default/files/NYULawReviewOnline-88-1-
Price_0.pdf>.

The Court should not do so. The suggestion that federal legislation must treat states
equally is a chimera, without support in constitutional text, history, or precedent. It
is particularly unfounded with respect to legislation, like section 5 of the VRA, that
is based on Congresss authority under the Fourteenth and Fifteenth Amendments
to eradicate discriminatory denials of the right to vote. A constitutional requirement
that legislation cannot treat states differently would call into question many typical
legislative acts. The idea should be put to rest before it causes mischief.

Warrant: States are already given protection by representation in the legislature.

Price, Zachary. "Shelby County v. Holder: The Voting Rights Act Doesn't Need to Treat
States Equally." SCOTUSblog RSS. Bloomberg Law, 16 Feb. 2014. Web. 06 Jan.
2014. <http://www.scotusblog.com/2013/02/shelby-county-v-holder-the-voting-
rights-act-doesnt-need-to-treat-states-equally/>.

To see why NAMUDNO is wrong about state equality, consider what the Constitution
actually says about states. To begin with, it guarantees each state representation (in
proportion to population) in both the House of Representatives and the Electoral
!"# %&'()*#+, -#. /0"12, 3*4&(-&5 6789


!"#$%&'( *+&,-. 69:
College. Even more importantly, it guarantees each state (regardless of population)
equal representation in the Senate. States thus do not appear to be in need of the
type of protection against discriminatory action that heightened scrutiny normally
provides. Although its conceivable that a majority of states might gang up repeatedly
on some minority of states, these guarantees of political representation in Congress and
the Electoral College are normally sufficient to ensure that losers today may be winners
tomorrow.

Warrant: Constitution is specific about when states are guaranteed equality, suggesting no
general rule of state equality.

Price, Zachary. "Shelby County v. Holder: The Voting Rights Act Doesn't Need to Treat
States Equally." SCOTUSblog RSS. Bloomberg Law, 16 Feb. 2014. Web. 06 Jan.
2014. <http://www.scotusblog.com/2013/02/shelby-county-v-holder-the-voting-
rights-act-doesnt-need-to-treat-states-equally/>.

Whats more, the Constitution guarantees some other, quite specific forms of
equality. Congress cannot adopt unequal Duties, Imposts, and Excises, nor can it
enact any Preference . . . given by any Regulation of Commerce or Revenue to the
Ports of one State over those of another. At least in the absence of some compelling
reason to infer a broader unenumerated principle of state equality, the specificity of
such guarantees suggests that no general rule otherwise guards states against
unequal treatment in federal legislation.

Warrant: Katzenbach case only applies to equality of state when entering the Union.

Shelby County v. Holder. 570 U.S. __.Supreme Court of the United State. 2013.
supremecourt.gov. Web. 1/3/2014.
<http://www.supremecourt.gov/opinions/12pdf/12-96_6k47.pdf>

The Court stops any application of 5 by holding that 4(b)s coverage formula is
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!"#$%&'( *+&,-. 699
unconstitutional. It pins this result, in large measure, to the fundamental principle of
equal sovereignty. Ante, at 1011, 23. In Katzenbach, however, the Court held, in
no uncertain terms, that the principle applies only to the terms upon which States
are admitted to the Union, and not to the remedies for local evils which have
subsequently appeared. 383 U. S., at 328329 (emphasis added).

Warrant: State equality specifically inapplicable to 14
th
/15
th
amendments.

Price, Zachary S. "Namudnos Non-Existent Principle Of State Equality." NYU Law
Review 88 (2013): 24-40. NYU Law Review Online. Web. 06 Jan. 2014.
<http://www.nyulawreview.org/sites/default/files/NYULawReviewOnline-88-1-
Price_0.pdf>.

It would be particularly surprising to apply a principle of state equal treatment to
Congresss enforcement powers under the Fourteenth and Fifteenth Amendments.
These two amendments were adopted during Reconstruction principally to address
concerns about discrimination against former slaves.
39
Thus, although the Fourteenth
and Fifteenth Amendments guarantee voting rights and equal protection of the laws
throughout the nation, and although Congress typically has enforced them with
general, nationwide legislation, there is little doubt that their drafters were
concerned principally with discriminatory practices concentrated in one region of
the countrythe former Confederacy.

Warrant: Supreme Court precedent that some laws should discriminate against states.

Price, Zachary S. "Namudnos Non-Existent Principle Of State Equality." NYU Law
Review 88 (2013): 24-40. NYU Law Review Online. Web. 06 Jan. 2014.
<http://www.nyulawreview.org/sites/default/files/NYULawReviewOnline-88-1-
Price_0.pdf>.

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!"#$%&'( *+&,-. 69:
In fact, in the Civil Rights Cases, a seminal early decision interpreting the
Fourteenth Amendment, the Supreme Court struck down the Civil Rights Act of
1875 precisely because it did not discriminate between states.

The 1875 Act
guaranteed full and equal enjoyment of various public accommodations to citizens of
every race and color, regardless of any previous condition of servitude.

The Supreme
Court held that this legislation was unconstitutionally overbroad because it
applie[d] equally to cases arising in States which have the justest laws respecting
the personal rights of citizens, and whose authorities are ever ready to enforce such
laws, as to those which arise in States that may have violated the prohibition of the
amendment.

Today, courts typically cite the Civil Rights Cases for the proposition that
the Fourteenth Amendment applies only to state action and thus does not permit
Congress to ban private discrimination.

Modern doctrine, moreover, likely would not
support facial invalidation of the 1875 Act based on the putative unconstitutionality of its
application to particular states.

Nevertheless, the holding of the Civil Rights Cases
that the Fourteenth Amendment requires Congress to differentiate between states
highlights the irony in NAMUDNOs suggestion that some unenumerated, implicit
requirement of the Constitution may prohibit such disparate treatment of states.

Analysis: This argument may seem defensive but, with some creative framework, debaters
should be able to make this an effective offensive argument. The stock argument used by most
Pro teams will likely be the same argument that the Court uses to rule section 4(b)
unconstitutionalthat it violates the principle of equal sovereignty. Since this argument will
be so common, being able to apply this argument defensively will certainly be important. But
this argument can be used as offense by interpreting the resolution such that they evaluate
whether the specific decision about the Supreme Court is right. That is, even if Pro teams dont
try to argue that the law is unconstitutional under equal sovereignty, Con teams could still
generate offense with this argument by claiming that since the Supreme Court used said principle
to rule section 4(b) unconstitutional, then they are not right in their ruling if equal sovereignty
does not apply to the law.

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!"#$%&'( *+&,-. 69:
%;6 < =+-+*, ."#>+ #**. +" 4* +&*-+*. *?(-005

Answer: Principle of equal sovereignty fundamental.

Warrant: Comes from equal footing.

Denniston, Lyle. "Constitution Check: Do the States Have a Right to Be Treated
Equally?" Constitution Daily. National Constitution Center, 04 July 2013. Web.
03 Jan. 2014. <http://blog.constitutioncenter.org/2013/07/constitution-check-do-
the-states-have-a-right-to-be-treated-equally/>.

When James Madison was working on drafts of the proposed Constitution, he suggested
that there be a provision for bringing in new states, beyond the original 13. His draft
suggested that any new state shall be admitted on the same terms with the original
states. That idea got some support during the Philadelphia Convention, but the final
version part of Article IV said only that new states may be admitted by the Congress
into this Union. When the third new state, Tennessee, joined the Union in 1796,
Congress explicitly declared for the first time that Tennessees entry would be on
an equal footing. Other new states have been given the same promise. The most
enthusiastic Supreme Court embrace of that idea came in a 1911 Supreme Court decision,
Coyle v. Smith. But, that, too, was in the context of the rights that states would have at
the point of becoming part of the United States. In recent times, the Court had only
hinted that is, until last month that it would rely upon that principle to protect the
equality of the states from differing treatment by Congress. The broadest hint (though
few observers paid much attention to it at the time) came in 2009, in the case of
Northwest Austin Municipal Utility District v. Holden. In that case, Chief Justice
Roberts wrote a strongly worded opinion suggesting that the Voting Rights Act of
1965 might at some point be declared unconstitutional because it differentiates
between the states, despite our historic tradition that all the states enjoy equal
sovereignty.
!"# %&'()*#+, -#. /0"12, 3*4&(-&5 6789


!"#$%&'( *+&,-. 69:

Warrant: Equality among states necessary for harmonious function of country.

Shelby County v. Holder. 570 U.S. __.Supreme Court of the United State. 2013.
supremecourt.gov. Web. 1/3/2014.
<http://www.supremecourt.gov/opinions/12pdf/12-96_6k47.pdf>

Not only do States retain sovereignty under the Constitution, there is also a
fundamental principle of equal sovereignty among the States. Northwest Austin,
supra, at 203 (citing United States v. Louisiana, 363 U. S. 1, 16 (1960); Lessee of Pollard
v. Hagan, 3 How. 212, 223 (1845); and Texas v. White, 7 Wall. 700, 725726 (1869);
emphasis added). Over a hundred years ago, this Court explained that our Nation
was and is a union of States, equal in power, dignity and authority. Coyle v.
Smith, 221 U. S. 559, 567 (1911). Indeed, the constitutional equality of the States is
essential to the harmonious operation of the scheme upon which the Republic was
organized. Id., at 580. Coyle concerned the admission of new States, and Katzenbach
rejected the notion that the principle operated as a bar on differential treatment outside
that context. 383 U. S., at 328329. At the same time, as we made clear in Northwest
Austin, the fundamental principle of equal sovereignty remains highly pertinent in
assessing subsequent disparate treatment of States.

Analysis: This responds to the argument that Katzenbach is not a bar on differential treatment
outside admission of new states by arguing that the principle of equal sovereignty remains
fundamental from the equal footing principle.

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!"#$%&'( *+&,-. 69:
!;< = >+-+* ?@(-0A+5 A, #"+ - !"#,+A+(+A"#-0 B*@(A&*)*#+

Argument: The Roberts court decision was based off of the principle that states must be treated
equally.

Lemiux, Scott. "The Supreme Court v. Civil Rights." The American Prospect. 24 Oct.
2013. Web. 3 Jan. 2014. <http://prospect.org/article/supreme-court-v-civil-rights>.

The Supreme Court's decision earlier this year to strike down Section 4 of the Civil Rights
Act shares this tendency of inventing extraconstitutional limitations on the authority of
Congress to protect civil rights. Morrison, at least, explicitly singled out Section 4 as an
enforcement of the Civil War amendments that was appropriate. Chief Justice Roberts's
majority opinion in Shelby County doesn't even cite Morrisonor the "congruence and
proportionality" test: the opinion is in such risible shambles that it doesn't bother
explaining what standard is being used to evaluate congressional authority under the 15th
Amendment at all. The only relevant limitation on Congress's authority to enforce the
15th Amendment cited by the Court is an alleged equal sovereignty of the states
requirement not linked to any specific constitutional provision. To accept the Roberts
Court's theory, one would have to accept that the Civil War Amendments were intended to
implicitly enact the proto-Confederate theory of state sovereignty asserted by the Court
in Dred Scott, a decision held in such contempt by the Reconstruction Congress that its
other holdings were overturned by not one but two constitutional amendments. The idea is
so absurd that to restate it is to refute it.

Argument: This is a flawed analysis.

Warrant: This justification is not found explicitly in the constitution.

Lemiux, Scott. "The Supreme Court v. Civil Rights." The American Prospect. 24 Oct.
2013. Web. 3 Jan. 2014. <http://prospect.org/article/supreme-court-v-civil-rights>.
!"# %&'()*#+, -#. /0"12, 3*4&(-&5 6789


!"#$%&'( *+&,-. 69:
In civics textbooks, the Supreme Court protects minority rights against the encroachment of
congressional majorities. Bare majorities of the Roberts and Rehnquist Courts, conversely, have
repeatedly acted to deny Congress's ability to protect the civil rights of disadvantaged groups,
generally based on states' rights that are found not in the Constitution but in the
imagination of the justices. Democratic administrations need to continue to nominate justices
who will allow Congress to fully exercise its explicit authority to protect civil rights.

Warrant: The federal government has historically treated states unequally
Posner, Richard . "Supreme Court 2013: The Year in Review." Slate Magazine. 26 June
2013. Web. 3 Jan. 2014.
<http://www.slate.com/articles/news_and_politics/the_breakfast_table/features/2013/
supreme_court_2013/the_supreme_court_and_the_voting_rights_act_striking_down
_the_law_is_all.html>.

Section 3 of Article IV of the Constitution authorizes Congress to admit new states to the
Union, as it has done many times, but says nothing about the terms on which they are to be
admitted. Usually when new states are admitted it is on the same terms as the existing ones.
But not always: Utah and several other western states were required as a condition of
admission to outlaw polygamya novel condition. Not that any other state permitted
polygamy. But other states, not having been subjected to such a condition when they
were admitted, were free to permit polygamy without risk of being expelled from the
Union.

Warrant: We treat some states unequally in the status quo.

Price, Zachary. "Shelby County v. Holder: The Voting Rights Act doesn't need to treat
states equally." SCOTUSblog. 16 Feb. 2013. Web. 3 Jan. 2014.
<http://www.scotusblog.com/2013/02/shelby-county-v-holder-the-voting-rights-
act-doesnt-need-to-treat-states-equally/>.

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!"#$%&'( *+&,-. 6:7
What about tradition? Is there a historic practice of treating states equally? No, there
isnt. Congress routinely passes legislation that presumes that only some rational basis is
necessary for unequal treatment of states. Earmarks are one example: Congress
routinely appropriates funds for particular states or localities without necessarily
doing the same for other equally deserving jurisdictions. Congress also sometimes
adopts pilot projects that let one state or locality try out a program before it gets
imposed nationwide. Congresss management of federal property can also affect states
unequally. Just ask Nevada about Yucca Mountain, which federal legislation designated
as a repository for much of the nations nuclear waste. (Nevada tried to argue that this
law violated a constitutional principle of state equality, but the D.C. Circuit gave that
argument the back of its hand.) There are also regulatory laws that treat states
unequally. The Clean Air Act permits California alone to adopt its own standards
for certain emissions, while requiring other states to follow either Californias
standards or federal regulations.

Argument: Since section four is not arbitrary, it is constitutional.

Posner, Richard . "Supreme Court 2013: The Year in Review." Slate Magazine. 26 June
2013. Web. 3 Jan. 2014.
<http://www.slate.com/articles/news_and_politics/the_breakfast_table/features/2013/
supreme_court_2013/the_supreme_court_and_the_voting_rights_act_striking_down
_the_law_is_all.html>.

Its possible that the federal government would subject a state to unequal treatment so
arbitrary and oppressive as to justify a ruling that Congress exceeded its constitutional
authority. But Justice Ruth Bader Ginsburgs very impressive opinion (in part because of
its even tone), at a length (37 pages) that, remarkably, one would not like to see
shortenedmarshals convincing evidence that the reasons Congress has for treating
some states differently for purposes of the Voting Rights Act are not arbitrary,
though they are less needful than they were in 1965, when the law was first enacted.
!"# %&'()*#+, -#. /0"12, 3*4&(-&5 6789


!"#$%&'( *+&,-. 6:8
%;6 < =+-+* >?(-0@+5 @, #"+ - !"#,+@+(+@"#-0 A*?(@&*)*#+

Answer: James Madison wanted states to be equal.

Denniston, Lyle. "Constitution Check: Do the states have a right to be treated
equally?." Constitution Daily. 8 July 2013. Web. 3 Jan. 2014.
<http://blog.constitutioncenter.org/2013/07/constitution-check-do-the-states-have-
a-right-to-be-treated-equally/>.

When James Madison was working on drafts of the proposed Constitution, he suggested
that there be a provision for bringing in new states, beyond the original 13. His draft
suggested that any new state shall be admitted on the same terms with the original
states. That idea got some support during the Philadelphia Convention, but the final
version part of Article IV said only that new states may be admitted by the Congress
into this Union.

When the third new state, Tennessee, joined the Union in 1796, Congress explicitly
declared for the first time that Tennessees entry would be on an equal footing. Other
new states have been given the same promise. The most enthusiastic Supreme Court
embrace of that idea came in a 1911 Supreme Court decision, Coyle v. Smith. But, that,
too, was in the context of the rights that states would have at the point of becoming part
of the United States.

Answer: States enjoy equal sovereignty.

Denniston, Lyle. "Constitution Check: Do the states have a right to be treated
equally?." Constitution Daily. 8 July 2013. Web. 3 Jan. 2014.
<http://blog.constitutioncenter.org/2013/07/constitution-check-do-the-states-have-
a-right-to-be-treated-equally/>.

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!"#$%&'( *+&,-. 6:6
In recent times, the Court had only hinted that is, until last month that it would rely
upon that principle to protect the equality of the states from differing treatment by
Congress. The broadest hint (though few observers paid much attention to it at the time)
came in 2009, in the case of Northwest Austin Municipal Utility District v. Holden. In
that case, Chief Justice Roberts wrote a strongly worded opinion suggesting that the
Voting Rights Act of 1965 might at some point be declared unconstitutional because it
differentiates between the states, despite our historic tradition that all the states enjoy
equal sovereignty.

Answer: Roberts argument is that states have some individual level of dignity, has supreme
court precedent.

Fishkin, Joseph. "The Yale Law Journal Online - The Dignity of the South." The Yale
Law Journal Online - The Dignity of the South. 8 June 2013. Web. 3 Jan. 2014.
<http://yalelawjournal.org/the-yale-law-journal-pocket-part/election-law/the-
dignity-of-the-south/>.

This argument from the equal dignity of the states is both more and less novel than it
might seem. The idea that states have dignity, and that this dignity has some
constitutional forcealthough not, to be sure, because of any specific piece of
constitutional textemerged as an important theme in the new federalism
jurisprudence of the 1990s. In a series of sovereign immunity cases, most
prominently Alden v. Maine,

conservative Supreme Court majorities held that it
would violate states dignity if Congress could use its Article I powers to make
states subject to lawsuits for money damages without their consent. In those cases,
dignity enters the picture in a hierarchical way: it is one state versus the federal
government. The invocation of dignity is meant to evoke a pre-democratic idea of the
dignity of the sovereign, an idea that predates the modern conceptions of human dignity
that are now so central to the constitutional law and jurisprudence of many nations and
international bodies.
7
In other words, the dignity claim here is about the sovereignty of a
stateany state. Maine will do as well as South Carolina. What seems novel, in
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!"#$%&'( *+&,-. 6:;
the Shelby County variant of the dignity-of-states argument, is the comparative element:
here, what is supposed to be undignified is the federal government treating some states
differently from others.

Analysis: Winning either side of this argument is the key to winning this debate, but this
argument is made problematic by the fact that there is no clear winner. Section 4 is
unconstitutional, according to the court decision, because it violates the principle of states having
equal sovereignty essentially, there needs to be a good reason to treat states differently. If there
is no good reason, then any such law is unconstitutional. This argument is very convincing,
because we tend to think as states as being equal. However, it is important to note that there is no
explicit constitutional principal setting this forth. Basically, this debate will come down to
persuasion. The pro can respond to the argument that it is not in the constitution but arguing that
states have a certain level of dignity and sovereignty however, again note that this will rely on
persuasion to win.

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!"#$%&'( *+&,-. 6:9
!;< = >?@@*&*#+ !"A*&-'* 3"&)(0-, <"+ B"0?+?1-005 B",,?40*

Argument: In 2006 changing the coverage formula was not politically feasible, and the current
Republican congress makes it such that a new coverage formula is unlikely to be passed. Thus
Roberts should not assume a different coverage formula is possible, the standard for declaring it
unconstitutional should be higher if it is necessary to combat racial discrimination.

Warrant: Roberts decision wants different coverage formula.

Shelby County v. Holder. 570 U.S. __.Supreme Court of the United State. 2013.
supremecourt.gov. Web. 1/3/2014.
http://www.supremecourt.gov/opinions/12pdf/12-96_6k47.pdf

Striking down an Act of Congress is the gravest and most delicate duty that this Court
is called on to perform. Blodgett v. Holden, 275 U.S. 142, 148 (18277) (Holmes, J.
concurring). We do not do so lightly. That is why, in 2009, we took care to avoid ruling
on the constitutionality of the Voting Rights Act when asked to do so, and instead
resolved the case then before us on statutory grounds. But in issuing the decision, we
expressed our broader concerns about the constitutionality of the Act. Congress could
have updated the coverage formula at that time, but did not do so. Its failure to act
leaves us today with no choice but to declare section 4(b) unconstitutional. The
formula in that section can longer be used as a basis for subjecting jurisdictions to
preclearance. Our decision in no way affects the permanent nationwide ban on racial
discrimination in voting found in section 2. We issue no holding on section 5 itself, only
on the coverage formula. Congress may draft another formula based on current
conditions. Such a formula is an initial prerequisite to a determination that exceptional
conditions still exist justifying such an extraordinary departure from the traditional
course of relations between the States and the Federal Government. Presley, 502 U.S., at
500-501. Our country has changed, and while any racial discrimination in voting is
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!"#$%&'( *+&,-. 6::
too much, Congress must ensure that the legislation it passes to remedy that
problem speaks to current conditions.

Warrant: A new coverage formula wouldve changed focus of debate and unraveled the bill.

Persily, Nathaniel. "The Promise and Pitfalls of the New Voting Rights Act." Yale Law
Journal 117.174 (2007): 174-253. Web. 4 Jan. 2014.
<http://yalelawjournal.org/images/pdfs/606.pdf>.

What became clear throughout the reauthorization process was that a debate over
the coverage formula would turn into a debate about the purpose and utility of
section 5 itself. Such a debate likely would have led to the complete unraveling of the
bill. If Congress had added or subtracted jurisdictions based on some new criteria then
the justification for those criteria would become the central political and constitutional
question underlying the bill. Congress would have needed to make some findings as to
why these new criteria roughly correspond (or more precisely, were proportional and
congruent) to areas of concern with respect to minority voting rights violations.

Warrant: A formula covering more recent offenders was not politically plausible.

Persily, Nathaniel. "The Promise and Pitfalls of the New Voting Rights Act." Yale Law
Journal 117.174 (2007): 174-253. Web. 4 Jan. 2014.
<http://yalelawjournal.org/images/pdfs/606.pdf>.

As described above, voter turnout rates (either in the aggregate or racial disparities)
would not do so, nor would a history of successful voting rights lawsuits (for example,
cover all those jurisdictions that had been found guilty of a violation of section 2 of the
VRA). Moreover, no objective statistical criteria could have added the most recent
bad actors (Ohio and Florida) to the list of currently covered jurisdictions. Indeed,
as Richard Pildes has argued, the bad actors of recent elections were discovered
principally after the fact when a competitive election and subsequent litigation exposed
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!"#$%&'( *+&,-. 6:;
the problems in those states election laws and administration. As with a decision to
apply section 5 nationally, a decision to cherry-pick such large and politically
powerful states as Ohio and Florida would have sunk the bill. It is one thing to retain
coverage of jurisdictions that have lived with the constraints of section 5 for some time; it
is quite another to heap a new and costly administrative scheme onto jurisdictions
unaccustomed to needing federal permission for their voting laws. Moreover, if the
formula were tailored to capture the most notorious alleged recent violators of
minority rights, the likely targets of increased coverage would have been
Republican-controlled statesand the Republican Congress should hardly be
expected to increase coverage to include solely those areas Democrats considered
bad actors in recent elections. Perhaps a deal could have been struck to include some
Democratic states that have been the subject of controversy, such as Washington, which
demonstrated its share of voting irregularities in its 2004 gubernatorial recount. Yet,
those complaints were not race-based, and if section 5 was going to become a generic
troubleshooter for voting violations, let alone fraud however defined, then the whole
structure would need to have been rethought.

Warrant: A coverage formula to appease the Republicans would have been ineffective.

Persily, Nathaniel. "The Promise and Pitfalls of the New Voting Rights Act." Yale Law
Journal 117.174 (2007): 174-253. Web. 4 Jan. 2014.
<http://yalelawjournal.org/images/pdfs/606.pdf>.


In 2006, any decision to expand coverage would have needed to appear politically
evenhanded. As insulted as the currently covered jurisdictions were to remain under the
section 5 umbrella, any newly covered state would have considered its addition to the
preclearance regime as a national condemnation of its recent voting rights record. The
only way such a signal could have been politically acceptable is if the eventual targets
were not uniformly dominated by one party (that is, Republicans). Extending coverage to
the most high-profile recent violators (or at least, to those that had received the most
!"# %&'()*#+, -#. /0"12, 3*4&(-&5 6789


!"#$%&'( *+&,-. 6:;
attention because competitive elections in those states exposed vulnerabilities that were
more widely shared), therefore, would have required finding some criterion that also
added a few Democratic jurisdictions. At the same time, any attempt to avoid disparate
partisan treatment while reforming the coverage formula must also comply with the
congruence and proportionality standard. In other words, the new coverage formula
would have to be both politically fair and justifiable as preventing or remedying
violations of voting rights. A slapdash choice of jurisdictions arising from a political
compromise to balance out the partisan effects of a new coverage regime would be
incongruent with the geography of voting rights violators almost by definition. As
unsatisfying and constitutionally risky as resigning the VRA regime to its current
geographical reach may be, tinkering with it would have invited a whole host of
unknown problems. Whatever its drawbacks, the current coverage formula had the
virtue of already having been upheld by the Supreme Court.150 While the coverage
formula might be outdated, advocates for the law at least would have stare decisis on
their side and could force the Court into the position of explaining why a previously
constitutional law was now unconstitutional.

Warrant: A new coverage formula is politically unfeasible in the status quo as well.

Totenberg, Nina. "Supreme Court: Congress Has To Fix Broken Voting Rights
Act."NPR. NPR, 25 June 2013. Web. 03 Jan. 2014.
<http://www.npr.org/2013/06/25/195599353/supreme-court-up-to-congress-to-
fix-voting-rights-act>.

Reaction to the ruling was swift in the civil rights community and elsewhere. Sherrilyn
Ifill, president of the NAACP Legal Defense Fund, called the decision "a game changer"
that "leaves virtually unprotected minority voters in communities all over this country."
Standing outside the Supreme Court immediately after the decision was announced, she
said, "We will not soft-soap it. This is a real threat, but we believe strongly Congress can
fix it." President Obama and Attorney General Eric Holder echoed that thought. "I am
hopeful that new protections can and will pass this session of Congress," Holder said
!"# %&'()*#+, -#. /0"12, 3*4&(-&5 6789


!"#$%&'( *+&,-. 6:;
"This is not a partisan issue, it's an American issue because our democracy is founded
on ensuring that every eligible citizen has access to the ballot box." Privately, though,
most voting-rights experts are more than skeptical that the current polarized
Congress can enact any fix. As a political matter, it's "a nonstarter," says Yale Law
professor and voting specialist Heather Gerken. Voting-rights expert Richard Hasen
of the University of California, Irvine, calls the pre-clearance section of the law
"effectively dead." "It's hard for me to imagine that Congress is going to come up
with any new kind of new coverage formula," he says. Instead, Hasen says, states with
records of discrimination are likely "to flex their muscles, putting more controversial
voting laws into place."

Analysis: When making this argument it will be important to make the link to constitutionality
very clear to the judges. Just an argument that other coverage formulas are impossible is not
going to be topical. That is why the first card in the argument is important to illustrate that
Robertss decision implicitly relies on the notion that other coverage formulas are possible. This
argument is also best made in tandem with an argument that preclearance is still necessary to
prevent racial discrimination in voting. This is because it only matters that this is the only
possible coverage formula if we need a coverage formula at all.

!"# %&'()*#+, -#. /0"12, 3*4&(-&5 6789


!"#$%&'( *+&,-. 6:;
%<6 = >?@@*&*#+ !"A*&-'* 3"&)(0-, B"+ C"0?+?1-005 C",,?40*

Answer: 50 state coverage formula is better then section 4.

Warrant: It will remain effective for future demographics.

Lind, Michael. "Salon." Saloncom RSS. N.p., 27 June 2013. Web. 04 Jan.
2014.
<http://www.salon.com/2013/06/27/a_no_lose_fix_for_the_voting_ri
ghts_act/>.

Fortunately, there is an alternative: Congress can rewrite Section 4 to make it apply
to all 50 states in perpetuity, thereby reviving and universalizing Section 5s
federal pre-clearance of state and local electoral law changes. The rationale for
universal federal pre-clearance of changes in state and local electoral laws is independent
of the legacy of anti-black racism in the U.S. as a whole and the South in particular. In
any ethnically diverse democracy that is also a federal system, the national government
needs to be able to restrain the power of ethnic groups, including those that are
national minorities but local majorities, from manipulating the electoral laws in sub-
national jurisdictions to create tyrannical ethnocracies like the older White South.
Today, non-Hispanic whites are a minority in California, Texas and other states. By the
middle of the 21st century, non-Hispanic whites will be a minority in the U.S.
population as a whole, according to some projections. Who knows? Maybe in the
future the outnumbered non-Hispanic white group, or other minority communities,
will need to be protected against unjust attempts to dilute their votes by new, post-
white majorities that prove to be as ethnocentric and undemocratic as non-Hispanic
whites frequently were when they enjoyed majority status. In other words, the
rationale for congressionally authorized federal pre-clearance of changes in electoral
systems at the state and local level would be compelling, even if there had never been any
history of racism in the U.S. at all. The mere prospect of potential state and local
!"# %&'()*#+, -#. /0"12, 3*4&(-&5 6789


!"#$%&'( *+&,-. 6:7
majority tyranny in the electoral arena is rationale enough for a universal,
permanent pre-clearance policy by the federal government.

Warrant: It is politically feasible.
Lind, Michael. "Salon." Saloncom RSS. N.p., 27 June 2013. Web. 04 Jan.
2014.
http://www.salon.com/2013/06/27/a_no_lose_fix_for_the_voting_righ
ts_act/
.
Universalizing Section 4 of the Voting Rights Act, then, makes excellent sense on its
merits. It would make for smart politics, too. Proposing to universalize Section 4
would be a no-lose proposition for progressives, centrists and non-racist
conservatives. If a law universalizing Section 4 were enacted, then the Northern and
Western states would have nothing to fear unless, of course, their state governments
were trying to use devious methods to restrict or dilute the voting power of particular
groups, like the disproportionately minority poor. But that is as it should be. Why should
race-motivated voter ID laws or redistricting schemes to dilute minority voters by
packing them in ghettoized electoral districts be subject to more federal scrutiny in the
South than in the Midwest or West Coast or New England? The same level of federal
scrutiny should be brought to bear everywhere in the United States. If a law
universalizing Section 4 were to die in Congress, it would almost certainly be killed by
Republicans based in the former Confederacy. Their success in stopping
universalization of Section 4 would be a Pyrrhic victory, further identifying the
Republican Party in the national mind with the most benighted white reactionaries
in the former homeland of slavery and segregation. This outcome would strengthen
not only Democrats but also reformist Republicans making the case that their party
must be freed from its Southern captivity.

Warrant: It would be constitutional.

!"# %&'()*#+, -#. /0"12, 3*4&(-&5 6789


!"#$%&'( *+&,-. 6:8
Lind, Michael. "Salon." Saloncom RSS. 27 June 2013. Web. 04 Jan. 2014.
<http://www.salon.com/2013/06/27/a_no_lose_fix_for_the_voting_ri
ghts_act/>.

Would a universalized version of Section 4 be acceptable to this Supreme
Court? Because all states would be treated equally, the argument that it treated
some unfairly would be irrelevant. Opponents would have to argue that by
permanently universalizing Sections 4 and 5 of the Voting Rights Act, Congress was
exceeding its constitutional authority. That would be a hard argument to make,
given the clear language of the 15th Amendment to the U.S. Constitution, ratified in
1870: Section 1. The right of citizens of the United States to vote shall not be denied or
abridged by the United States or by any State on account of race, color, or previous
condition of servitude.
Section 2. The Congress shall have power to enforce this article by appropriate
legislation. If universal, perpetual federal pre-clearance of changes in electoral laws
by all state and local governments, to make sure they do not disadvantage particular
minorities, is not appropriate legislation for defending the right of citizens of the
United States to vote under the 15th Amendment, it is hard to imagine what
appropriate legislation would be.

Analysis: This argument serves as a good response because it shows that there is an alternatively
possible coverage formula. It addresses political feasibility by arguing that if Republicans tried to
block it they would be demonized as segregationists. However, if making this response
remember that this alternative has never been proposed in Congress and this is simply one author
who acknowledges that the bill would not necessarily pass. So dont be too cavalier in saying
that this is a political slam-dunk. That being said it would almost definitely overcome any
Constitutional challenges as it applies to all states equally and thus would not violate the equal
sovereignty clause. Furthermore, this response may allow you to generate some offense of your
own by talking about how this plan would prevent future voter discrimination when American
demographics change.
!"# %&'()*#+, -#. /0"12, 3*4&(-&5 6789


!"#$%&'( *+&,-. 6:6
!;< = 8>
+?
%)*#.)*#+ @&-#+, !"#'&*,, A?*,* B"C*&,

Argument: Past precedent gives Congress the ability to implement the 14
th
and 15
th
amendments
in any way they see fit.

Warrant: Civil War Amendments were meant to arm Congress with the power to use all
appropriate and plainly adapted means to prevent racial discrimination.

Justice Ginsburg. "SHELBY COUNTY v. HOLDER." Legal Information Institute.
Cornell University Law School, 25 June 2013. Web. 04 Jan. 2014.
<http://www.law.cornell.edu/supremecourt/text/12-96>.

The stated purpose of the Civil War Amendments was to arm Congress with the
power and authority to protect all persons within the Nation from violations of their
rights by the States. In exercising that power, then, Congress may use all means
which are appropriate, which are plainly adapted to the constitutional ends
declared by these Amendments.

Warrant: Congressional enforcement of 15
th
amendment rooted in constitutional text and
precedent.

Justice Ginsburg. "SHELBY COUNTY v. HOLDER." Legal Information Institute.
Cornell University Law School, 25 June 2013. Web. 04 Jan. 2014.
<http://www.law.cornell.edu/supremecourt/text/12-96>.

The basis for this deference is firmly rooted in both constitutional text and
precedent. The Fifteenth Amendment, which targets precisely and only racial
discrimination in voting rights, states that, in this domain, Congress shall have
power to enforce this article by appropriate legislation. In choosing this language,
the Amendments framers invoked Chief Justice Marshalls formulation of the scope
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!"#$%&'( *+&,-. 6:;
of Congress powers under the Necessary and Proper Clause: Let the end be
legitimate, let it be within the scope of the constitution, and all means which are
appropriate, which are plainly adapted to that end, which are not prohibited, but
consist with the letter and spirit of the constitution, are constitutional. McCulloch
v. Maryland

Warrant: There is past judicial precedent supporting Congresss ability to prevent racial
discrimination.

Justice Ginsburg. "SHELBY COUNTY v. HOLDER." Legal Information Institute.
Cornell University Law School, 25 June 2013. Web. 04 Jan. 2014.
<http://www.law.cornell.edu/supremecourt/text/12-96>.

Until today, in considering the constitutionality of the VRA, the Court has accorded
Congress the full measure of respect its judgments in this domain should garner. South
Carolina v. Katzenbach supplies the standard of review: As against the reserved
powers of the States, Congress may use any rational means to effectuate the
constitutional prohibition of racial discrimination in voting.

Warrant: The burden is on the courts to satisfy that Congress does not have rational means,
especially when its an act that has been reauthorized based on contemporary evidence.

Justice Ginsburg. "SHELBY COUNTY v. HOLDER." Legal Information Institute.
Cornell University Law School, 25 June 2013. Web. 04 Jan. 2014.
<http://www.law.cornell.edu/supremecourt/text/12-96>.

In summary, the Constitution vests broad power in Congress to protect the right to vote,
and in particular to combat racial discrimination in voting. This Court has repeatedly
reaffirmed Congress prerogative to use any rational means in exercise of its power
in this area. And both precedent and logic dictate that the rational-means test
should be easier to satisfy, and the burden on the statutes challenger should be
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!"#$%&'( *+&,-. 6:9
higher, when what is at issue is the reauthorization of a remedy that the Court has
previously affirmed, and that Congress found, from contemporary evidence, to be
working to advance the legislatures legitimate objective.

Warrant: Court lacks authority to substitute judgment based on compiled evidence.

Gespass, David. "Brief Of Amicus Curiae National Lawyers Guild In Support Of
Respondents." The Lawyers' Committee for Civil Rights Under Law. Counsel for
Amicus Curiae, 1 Feb. 2013. Web. 5 Jan. 2014.
<http://www.lawyerscommittee.org/admin/voting_rights/documents/files/12-96-
bsac-NationalLawyersGuild.pdf>.

The Court lacks the authority to substitute its judgment for the measured findings
of elected officials that racism still runs rampant in this land and that covered
jurisdictions remain appropriate subjects of the greater attention the Voting Rights Act
imposes when that attention places minimal burdens on them.

Warrant: Courts defer to Congress on matters of fact. Congress has the time and resources that
the Court does not.

Gespass, David. "Brief Of Amicus Curiae National Lawyers Guild In Support Of
Respondents." The Lawyers' Committee for Civil Rights Under Law. Counsel for
Amicus Curiae, 1 Feb. 2013. Web. 5 Jan. 2014.
<http://www.lawyerscommittee.org/admin/voting_rights/documents/files/12-96-
bsac-NationalLawyersGuild.pdf>.

Federal courts have deferred to Congress and state legislatures in findings of fact.
And, indeed, legislatures have resources and time to dedicate to the process of
collecting and evaluating information necessary to take action. Members of
Congress and other legislatures may engage in a range of activities to assemble their
facts, including consulting staff, friends and constituents, and educating
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!"#$%&'( *+&,-. 6:;
themselves by reviewing past legislation or even by reading a novel or watching
television.

Impact: Congressional power is at its highest in the issue of racial discrimination.

Justice Ginsburg. "SHELBY COUNTY v. HOLDER." Legal Information Institute.
Cornell University Law School, 25 June 2013. Web. 04 Jan. 2014.
<http://www.law.cornell.edu/supremecourt/text/12-96>.

When confronting the most constitutionally invidious form of discrimination, and
the most fundamental right in our democratic system, Congress power to act is at
its height.

Impact: The Court deferring to Congress upholds branch separation of power.

Gespass, David. "Brief Of Amicus Curiae National Lawyers Guild In Support Of
Respondents." The Lawyers' Committee for Civil Rights Under Law. Counsel for
Amicus Curiae, 1 Feb. 2013. Web. 5 Jan. 2014.
<http://www.lawyerscommittee.org/admin/voting_rights/documents/files/12-96-
bsac-NationalLawyersGuild.pdf>.

This case affords the Court the opportunity to step back to acknowledge and adhere to
the principles of a fair government envisioned in 1787 by the founders: three separate,
distinct and coequal branches of government with overlapping but separate spheres
of authority, created to prevent abuse of power and ensure the protection of
individual freedoms. While the specific legal and moral imperative of eliminating
racism within our society is an imposing one, members of the Court are also duty-
bound to exercise judicial deference to the lawmakers whose exhaustive fact-finding
formed the basis for their decision.

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!"#$%&'( *+&,-. 6::
Analysis: Both the constitutional writings of the 14
th
and 15
th
amendments and past judicial
precedent give Congress the discretion of creating legislation meant to combat racial
discrimination. Congress alone is the only branch that has the resources, time and enforceability
to effectively combat discrimination. Therefore, they should be given the highest level of power
in deciding what works to protect citizens from voter discrimination, not the Court.


!"# %&'()*#+, -#. /0"12, 3*4&(-&5 6789


!"#$%&'( *+&,-. 6:;
%<6 = 8>
+?
%)*#.)*#+ @&-#+, !"#'&*,, A?*,* B"C*&,

Answer: The Court did not substitute the judgment of Congress but critique the method of
implementation.

Warrant: The Courts role is to decide whether or not the provisions in place were appropriate
methods.

Justice Ginsburg. "SHELBY COUNTY v. HOLDER." Legal Information Institute.
Cornell University Law School, 25 June 2013. Web. 04 Jan. 2014.
<http://www.law.cornell.edu/supremecourt/text/12-96>.

The Courts role, then, is not to substitute its judgment for that of Congress, but to
determine whether the legislative record sufficed to show that Congress could
rationally have determined that [its chosen] provisions were appropriate methods.

Warrant: Section 2 along with the 14
th
and 15
th
amendment provide federal voting protections
for minorities.

Weinstein, Matthew. "Beyond the Sensationalism." Harvard Political Review RSS.
Harvard Political Review, 18 May 2013. Web. 06 Jan. 2014.
<http://harvardpolitics.com/united-states/beyond-the-sensationalism/>.

Section 2, combined with the Constitutions 14th (equal protection) and 15th
(universal male voting rights) Amendments provides a basic level of federal
protection of minority voting rights.

Warrant: Section 2 of the VRA still allows for racial discrimination cases to be tried.
!"# %&'()*#+, -#. /0"12, 3*4&(-&5 6789


!"#$%&'( *+&,-. 6:;
Weinstein, Matthew. "Beyond the Sensationalism." Harvard Political Review RSS.
Harvard Political Review, 18 May 2013. Web. 06 Jan. 2014.
<http://harvardpolitics.com/united-states/beyond-the-sensationalism/>.

The most important part of the VRA is Section 2, which prohibits states, counties,
and cities from enacting voting procedures that racially discriminate. The federal
government, and specifically the Department of Justice, has power to enforce
Section 2 through litigation. The DOJ may ask courts for preliminary injunctions to
prevent enactment of discriminatory voting procedures, and private individuals can also
bring Section 2 lawsuits. Between 2000 and 2009, the DOJ brought only 26 lawsuits
under Section 2, yet the threat of litigation is often enough to pressure jurisdictions into
election reform. However, Section 2 is not at issue in Shelby, and the DOJ and
individuals will retain their power regardless of the Courts decision.

Warrant: The mechanisms for choosing who is covered by the VRA are no longer valid.

Fisher, Daniel. "Supreme Court Upholds Voting Rights Act, But Strikes Down How It's
Enforced." Forbes. Forbes Magazine, 25 June 2013. Web. 06 Jan. 2014.
<http://www.forbes.com/sites/danielfisher/2013/06/25/supreme-court-upholds-
voting-rights-act-but-strikes-down-how-its-enforced/>.

There is no doubt that these improvements are in large part because of the Voting Rights
Act, Roberts wrote. But the formula Congress devised in 1965, separating states into
those with low voter turnouts and pernicious tests like literacy requirements, is no
longer valid, he said. Today the Nation is no longer divided along those lines, yet the
Voting Rights Act continues to treat it as if it were.

Impact: Court ruled that the procedures can stay the same if the methods for choosing who it
applies to changes.

!"# %&'()*#+, -#. /0"12, 3*4&(-&5 6789


!"#$%&'( *+&,-. 6:;
Fisher, Daniel. "Supreme Court Upholds Voting Rights Act, But Strikes Down How It's
Enforced." Forbes. Forbes Magazine, 25 June 2013. Web. 06 Jan. 2014.
<http://www.forbes.com/sites/danielfisher/2013/06/25/supreme-court-upholds-
voting-rights-act-but-strikes-down-how-its-enforced/>.

The ruling states that Congress can still enforce the restrictions on voting
procedures, but only if it produces an updated method for identifying states for
review.

Analysis: Instead of disagreeing with the precedent set forth by the Constitution and the
judiciary, you should agree with the power that the Court is in fact given. Because the Court is
able to decide if the methods the Congress uses is appropriate, if the Court decided the VRA was
outdated and no longer applicable, they would be right in doing so.
!"# %&'()*#+, -#. /0"12, 3*4&(-&5 6789


!"#$%&'( *+&,-. 6:7
!;< = !>?>0 @>'A+, B(*,+>"#, -&* %#,C*&*. 45 !"#'&*,,

Definition: Judicial restraint.

"A Glossary of Political Economy Terms." Judicial restraint: Web. 4 Jan. 2014.
<http://www.auburn.edu/~johnspm/gloss/judicial_restraint>.

The view that the Supreme Court (and other lesser courts) should not read the judges' own
philosophies or policy preferences into the constitution and laws and should whenever
reasonably possible construe the law so as to avoid second guessing the policy decisions
made by other governmental institutions such as Congress, the President and state
governments within their constitutional spheres of authority. On such a view, judges have
no popular mandate to act as policy makers and should defer to the decisions of the
elected "political" branches of the Federal government and of the states in matters of
policy making so long as these policymakers stay within the limits of their powers as
defined by the US Constitution and the constitutions of the several states.


Argument: Judicial restraint should be applied when evaluating civil rights cases.

Warrant: The Civil War Amendments explicitly give Congress the power to enforce civil rights
legislation especially look at the 15
th
Amendment.

"Civil War amendments." ThinkQuest. Oracle Foundation, n.d. Web. 5 Jan. 2014.
<http://library.thinkquest.org/J0112391/civil_war_amendments.htm>.

AMENDMENT XIII Passed by Congress January 31, 1865. Ratified December 6, 1865.
Section 1. Neither slavery nor involuntary servitude, except as a punishment for crime
whereof the party shall have been duly convicted, shall exist within the United States, or
any place subject to their jurisdiction. Section 2. Congress shall have power to enforce
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!"#$%&'( *+&,-. 6:8
this article by appropriate legislation. AMENDMENT XIV Passed by Congress June
13, 1866. Ratified July 9, 1868. Section 1. All persons born or naturalized in the United
States, and subject to the jurisdiction thereof, are citizens of the United States and of the
State wherein they reside. No State shall make or enforce any law which shall abridge the
privileges or immunities of citizens of the United States; nor shall any State deprive any
person of life, liberty, or property, without due process of law; nor deny to any person
within its jurisdiction the equal protection of the laws. Section 2-4 [omitted]. Section 5.
The Congress shall have the power to enforce, by appropriate legislation, the
provisions of this article. AMENDMENT XV Passed by Congress February 26, 1869.
Ratified February 3, 1870. Section 1. The right of citizens of the United States to vote
shall not be denied or abridged by the United States or by any State on account of race,
color, or previous condition of servitude. Section 2. The Congress shall have the power
to enforce this article by appropriate legislation.

Warrant: Thus we should give Congress more latitude in deciding what civil rights legislation
we should have.

Schwartz, John. "Between the Lines of the Voting Rights Act Opinion." the New York
Times. 25 June 2013. Web. 3 Jan. 2014.
<http://www.nytimes.com/interactive/2013/06/25/us/annotated-supreme-court-
decision-on-voting-rights-act.html?_r=0>.

The stated purpose of the Civil War Amendments was to arm Congress with the power
and authority to protect all persons within the Nation from violations of their rights by the
States. In exercising that power, then, Congress may use all means which are
appropriate, which are plainly adapted to the constitutional ends declared by these
Amendments. McCulloch, 4 Wheat., at 421. So when Congress acts to enforce the right
to vote free from racial discrimination, we ask not whether Congress has chosen the
means most wise, but whether Congress has rationally selected means appropriate to a
legitimate end. It is not for us to review the congressional resolution of [the need for its
chosen remedy]. It is enough that we be able to perceive a basis upon which the Congress
!"# %&'()*#+, -#. /0"12, 3*4&(-&5 6789


!"#$%&'( *+&,-. 6:6
might resolve the conflict as it did. Katzenbach v. Morgan, 384 U. S. 641, 653 (1966).

Until today, in considering the constitutionality of the VRA, the Court has accorded
Congress the full measure of respect its judgments in this domain should garner.

Argument: The VRA allows for the formula to change over time.

Board, Editorial. "The Roberts Court casts aside judicial restraint on Voting Rights Act
case." Washington Post. The Washington Post, 25 June 2013. Web. 4 Jan. 2014.
<http://www.washingtonpost.com/opinions/the-roberts-court-casts-aside-judicial-
restraint-on-voting-rights-act-case/2013/06/25/c4bb645e-dddc-11e2-b197-
f248b21f94c4_story.html>.

Congress spent months in 2006 amassing a massive record to show that, even though the
first generation of discriminatory voting measures had been eradicated, subtler but
significant forms of discrimination in jurisdictions subject to pre-clearance remained
serious and pervasive. Lawmakers also considered evidence that discrimination still
occurs disproportionately in those places. Because people and places change, Congress
allowed jurisdictions with 10 years of good behavior to bail out of pre-clearance. It also
allowed courts to bail in jurisdictions if need be. Both were essential elements of the
system, allowing it to adapt to changing realities. That was the basis upon which a 390 to
33 majority in a Republican-controlled House and a 98 to 0 majority in a Republican
Senate determined that pre-clearance requirements remained rational policy that deserved
extension until 2031.

Argument: The VRA was extended in 2006 by large margins.

"Bush signs Voting Rights Act extension." msnbc.com. NBC, 27 July 2006. Web. 4 Jan.
2014. <http://www.nbcnews.com/id/14059113/ns/politics/t/bush-signs-voting-
rights-act-extension/#.UshrjmRDtkk>.
!"# %&'()*#+, -#. /0"12, 3*4&(-&5 6789


!"#$%&'( *+&,-. 6:;
Senate Minority Leader Harry Reid and House Minority Leader Nancy Pelosi have used
the occasion of the Voting Rights Act extension to criticize Bush's administration for
politicizing civil rights policy and weakening enforcement of the law's provisions. The
bill passed the Senate by a vote of 98-0 and the House 390-33. The overwhelming
majorities belied the difficulties getting to that point.

Analysis: This argument is essentially that since Congress was explicitly given the power to
enforce civil rights legislation, since it was a reasonable piece of legislation that allowed for
change over time, and since it was passed with such large margins, the court should exercise
judicial restraint and uphold the law.

!"# %&'()*#+, -#. /0"12, 3*4&(-&5 6789


!"#$%&'( *+&,-. 6:9
%;6< !=>=0 ?='@+, A(*,+="#, -&* %#,B*&*. 45 !"#'&*,,
Answer: Federal power does not exist in a vacuum, states have sovereignty as well.

Warrant: The VRA assumes that states cannot adequately govern themselves.

von Spakovsky, Hans . "Voting Rights Act After the Supreme Court's Decision in Shelby
County." The Heritage Foundation. Web. 4 Jan. 2014.
<http://www.heritage.org/research/testimony/2013/08/the-voting-rights-act-after-
the-supreme-courts-decision-in-shelby-county>.

Section 5 was an unprecedented, extraordinary intrusion into state sovereignty since it required
covered states to get the approval of the federal government for voting changes made by state
and local officials either the Department of Justice or a three-judge court in the District of
Columbia. No other federal law presumes that states cannot govern themselves as their
legislatures decide and must have the federal governments consent before they act. As the
Supreme Court said, Section 5 employed extraordinary measures to address an extraordinary
problem.

Warrant: Such action was necessary in the past to combat blatant voter suppression.

von Spakovsky, Hans . "Voting Rights Act After the Supreme Court's Decision in Shelby
County." The Heritage Foundation. Web. 4 Jan. 2014.
<http://www.heritage.org/research/testimony/2013/08/the-voting-rights-act-after-
the-supreme-courts-decision-in-shelby-county>.

The coverage formula of Section 4 was based on that disparity and Congress specifically
designed it to capture those states that were engaging in such blatant discrimination. Thus,
coverage under Section 4 was based on a jurisdiction maintaining a test or device as a
prerequisite to voting as of Nov. 1, 1964, and registration or turnout of less than 50 percent in the
!"# %&'()*#+, -#. /0"12, 3*4&(-&5 6789


!"#$%&'( *+&,-. 6:;
1964 election. Registration or turnout of less than 50 percent in the 1968 and 1972 elections was
added in successive renewals of the law. That was the last time the coverage formula was
revised, and Section 4 did not employ more current information on registration and turnout when
Section 5 was last renewed in 2006. Section 5 was needed in 1965. But as the Court recognized,
time has not stood still and n]early 50 year later, things have changed dramatically. The
systematic, widespread discrimination against black voters has long since disappeared. As the
Court recognized in the Northwest Austin case in 2009: Voter turnout and registration rates now
approach parity. Blatantly discriminatory evasions of federal decrees are rare. And minority
candidates hold office at unprecedented levels.

Warrant: Times have changed, it is no longer necessary now.

von Spakovsky, Hans . "Voting Rights Act After the Supreme Court's Decision in Shelby
County." The Heritage Foundation. Web, 4 Jan. 2014.
<http://www.heritage.org/research/testimony/2013/08/the-voting-rights-act-after-
the-supreme-courts-decision-in-shelby-county>.

No one can rationally claim that there is still widespread, official discrimination in any
of the covered states, or that there are any marked differences between states such as
Georgia, which was covered, and states such as Massachusetts, which was not covered
(except that Massachusetts has worse turnout of its minority citizens). As the Supreme
Court approvingly noted and as Judge Stephen F. Williams pointed out in his dissent in
the District of Columbia Court of Appeals, jurisdictions covered under Section 4 have
higher black registration and turnout than noncovered jurisdictions.[6] Covered
jurisdictions also have far more black officeholders as a proportion of the black
population than do uncovered ones.[7] In a study that looked at lawsuits filed under
Section 2 of the VRA, Judge Williams found that the five worst uncovered
jurisdictionshave worse records than eight of the covered jurisdictions.[8]

Answer: Roberts argument is that states have some individual level of dignity, has supreme
court precedent.
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!"#$%&'( *+&,-. 6:;
Fishkin, Joseph. "The Yale Law Journal Online - The Dignity of the South." The Yale
Law Journal Online - The Dignity of the South. N.p., 8 June 2013. Web. 3 Jan.
2014. <http://yalelawjournal.org/the-yale-law-journal-pocket-part/election-
law/the-dignity-of-the-south/>.

This argument from the equal dignity of the states is both more and less novel than it
might seem. The idea that states have dignity, and that this dignity has some
constitutional forcealthough not, to be sure, because of any specific piece of
constitutional textemerged as an important theme in the new federalism
jurisprudence of the 1990s. In a series of sovereign immunity cases, most
prominently Alden v. Maine,
5
conservative Supreme Court majorities held that it
would violate states dignity if Congress could use its Article I powers to make
states subject to lawsuits for money damages without their consent.
6
In those cases,
dignity enters the picture in a hierarchical way: it is one state versus the federal
government. The invocation of dignity is meant to evoke a pre-democratic idea of the
dignity of the sovereign, an idea that predates the modern conceptions of human dignity
that are now so central to the constitutional law and jurisprudence of many nations and
international bodies.
7
In other words, the dignity claim here is about the sovereignty of a
stateany state. Maine will do as well as South Carolina. What seems novel, in
the Shelby County variant of the dignity-of-states argument, is the comparative element:
here, what is supposed to be undignified is the federal government treating some states
differently from others.

Analysis: Thus argument responds to the con side because cons judicial restraint argument does
not discuss the role of the states. Though Congress has the power to enforce civil rights
legislation, states have a competing right to their own sovereignty.
!"# %&'()*#+, -#. /0"12, 3*4&(-&5 6789


!"#$%&'( *+&,-. 6::

!;< = >?*&* @, ,+@00 - #**. A"& ,*1+@"# 9 "A +?* B"+@#' C@'?+, %1+

Argument: The reason the conservative justices overturned the law was because they thought
that the law is antiquated and no longer necessary.

Warrant: Justice Roberts ruling.

Shelby County, Alabama V. Holder, Attorney General, Et Al. Supreme Court of the
United States. 25 June 2013. Web.
<http://www.supremecourt.gov/opinions/12pdf/12-96_6k47.pdf>.

Nearly 50 years later, things have changed dramatically. Largely because of the
Voting Rights Act, [v]oter turnout and regis- tration rates in covered jurisdictions now
approach parity. Blatant- ly discriminatory evasions of federal decrees are rare. And
minority candidates hold office at unprecedented levels. Northwest Austin, supra, at 202.
The tests and devices that blocked ballot access have been forbidden nationwide for over
40 years. Yet the Act has not eased 5s restrictions or narrowed the scope of 4s
coverage formula along the way. Instead those extraordinary and unprecedented fea-
tures have been reauthorized as if nothing has changed, and they have grown even
stronger. Because 5 applies only to those jurisdic- tions singled out by 4, the Court
turns to consider that provision. Pp. 1317. (b) Section 4s formula is unconstitutional in
light of current condi- tions.

Argument: Since Congress was given the power to protect against Civil Rights amendments
through the Civil War amendments to the constitution, the court only needs to see whether
Congress had some rational means to continue section four of the VRA. If they did, then the
court should not overturn the law and defer to Congress.

Warrant: Justice Ginsburgs dissent.
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Schwartz, John. "Between the Lines of the Voting Rights Act Opinion." the New York
Times. 25 June 2013. Web. 3 Jan. 2014.
<http://www.nytimes.com/interactive/2013/06/25/us/annotated-supreme-court-
decision-on-voting-rights-act.html?_r=0>.

The stated purpose of the Civil War Amendments was to arm Congress with the power
and authority to protect all persons within the Nation from violations of their rights by the
States. In exercising that power, then, Congress may use all means which are
appropriate, which are plainly adapted to the constitutional ends declared by these
Amendments.McCulloch, 4 Wheat., at 421. So when Congress acts to enforce the right to
vote free from racial discrimination, we ask not whether Congress has chosen the means
most wise, but whether Congress has rationally selected means appropriate to a legitimate
end. It is not for us to review the congressional resolution of [the need for its chosen
remedy]. It is enough that we be able to perceive a basis upon which the Congress might
resolve the conflict as it did. Katzenbach v. Morgan, 384 U. S. 641, 653 (1966). Until
today, in considering the constitutionality of the VRA, the Court has accorded Congress
the full measure of respect its judgments in this domain should garner.

Argument: Second generation barriers to voting exist and should allow the law to be upheld.

Warrant: Second generation barriers are enough to upheld the law.

Schwartz, John. "Between the Lines of the Voting Rights Act Opinion." the New York
Times. 25 June 2013. Web. 3 Jan. 2014.
<http://www.nytimes.com/interactive/2013/06/25/us/annotated-supreme-court-
decision-on-voting-rights-act.html?_r=0>.

The Court holds 4(b) invalid on the ground that it is irrational to base coverage on the
use of voting tests 40 years ago, when such tests have been illegal since that
time. Ante, at 23. But the Court disregards what Congress set about to do in enacting the
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VRA. That extraordinary legislation scarcely stopped at the particular tests and devices
that happened to exist in 1965. The grand aim of the Act is to secure to all in our polity
equal citizen ship stature, a voice in our democracy undiluted by race. As the record for
the 2006 reauthorization makes abundantly clear, second-generation barriers to minority
voting rights have emerged in the covered jurisdictions as attempted substitutes for the
first-generation barriers that originally triggered preclearance in those jurisdictions.
See supra, at 56, 8, 1517. The sad irony of todays decision lies in its utter failure to
grasp why the VRA has proven effective. The Court appears to believe that the VRAs
success in eliminating the specific devices extant in 1965 means that preclearance is no
longer needed. Ante, at 2122, 2324. With that belief, and the argument derived from it,
history repeats itself.

Warrant: There have been 2400 blocked discriminatory voting changes since 1982 in the area
covered under section four.

Rosdeitcher, Sidney. "Supreme Court Preview: Constitutionality of the Preclearance and
Coverage Provisions of the Voting Rights Act Reauthorization of 2006 | Brennan
Center for Justice." Web. 3 Jan. 2014.
<http://www.brennancenter.org/analysis/supreme-court-preview-constitutionality-
preclearance-and-coverage-provisions-voting-rights>.

Respondents detail the extensive record of racially discriminatory voting practices in the
covered jurisdictions before Congress, that they maintain demonstrate current needs
for the preclearance provision. This record shows, they maintain, that since 1982,
approximately 2400 discriminatory voting changes had been blocked by more than
750 Section 5 objections and that without Section 5 these voting changes could have
been challenged only through case-by-case litigation, a system that would have
resulted in years of discriminatory treatment of minority voters pending the
outcome of those litigations and would have required an enormous expenditure of
resources. Among other evidence before Congress of voting discrimination in the
covered jurisdictions, Respondents point to the number of successful suits under Section
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2 of the Voting Rights Act filed in covered jurisdictions; continued disparities between
minority voters registration and participation rates as compared to those of non-Hispanic
white voters; the Attorney Generals experience in certifying and dispatching election
observers; the persistence of severe racially polarized voting in covered jurisdictions that
indicates the political vulnerability of racial-minority voting rights; and testimony of
experts, voters, and practitioners about ongoing intimidation, harassment, voter
suppression and intentionally dilutive practices.

Warrant: Voter-id laws that were blocked in five states will now become law, depress minority
turnout.

Greenman, Emma . "Part 1: Gutting the Voting Rights Act: How the Supreme Courts
Shelby v. Holder decision Strikes at the Heart of Voting Rights and Our Political
Process." Wellstone. 14 July 2013. Web. 3 Jan. 2014.
<http://www.wellstone.org/blog/2013/07/part-1-gutting-voting-rights-act-how-
supreme-court%E2%80%99s-shelby-v-holder-decision-strikes>.

Take voter ID laws for starters. Until Shelby, Section 5 prevented covered states from
implementing strict voter ID requirements that would depress minority turnout. Now
freed of the federal government review, many of the formally covered jurisdictions will
go ahead with those laws to the determinant of minority voters. In fact, they already
have. Hours after the ruling, Texas announced it is putting a strict voter ID law into
effect. The law had been blocked by Section 5 because, as the D.C. federal court
observed, it imposes strict, unforgiving burdens on the poor, and racial minorities in
Texas are disproportionately likely to live in poverty. And Texas is not alone. At last
count, four more previously covered states are moving ahead with voter ID laws that will
likely take effect before 2014 Congressional elections..

Warrant: Redistricting will dilute the influence of minority voters.

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Greenman, Emma . "Part 1: Gutting the Voting Rights Act: How the Supreme Courts
Shelby v. Holder decision Strikes at the Heart of Voting Rights and Our Political
Process." Wellstone. N.p., 14 July 2013. Web. 3 Jan. 2014.
<http://www.wellstone.org/blog/2013/07/part-1-gutting-voting-rights-act-how-
supreme-court%E2%80%99s-shelby-v-holder-decision-strikes>.

And then there is redistricting. Section 5 has been very effective at preventing local
jurisdictions from changing their rules to dilute the ability of minority voters to
elect candidates of their choice. Strategies like packing minority voters into one
highly concentrated district, or cracking their voting strength by distributing minority
voters across many districts or at-large elections dilute the power of minority voters to
influence and elect leaders of their choice. Shelby County, Alabama, the jurisdiction that
took their challenge to the VRA to the Supreme Court, provides a telling example of what
we may expect in the absence of Section 5 pre-clearance. In 2008, Calera, a city in
Selby County, passed a redistricting plan that would have eliminated the citys
single majority-black city council district. Section 5 enforcement blocked the change
and saved the seat of the citys only black city council person. With federal review
gone, there is nothing preventing the city from now implementing the change.

Analysis: This argument, though intricate and complex, can be very powerful for the con side.
To summarize, the argument is essentially this The conservative justices overturned the law
because they felt it was antiquated, but as the examples of second generation barriers to voting
show, the law was still rational. Since Congress was given extraordinary powers by the Civil
War Amendments to protect against civil rights abuses, the court should not determine whether
Congress made the most wise decision in extending the law in 2006, but rather should only see
whether Congress was rational in doing so. Because Congress acted rationally, the law should
not have been overturned.

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A/2 There Is Still A Need For Section 4 Of The Voting Rights Act

Answer: The 2006 extension was irrational.

Warrant: The 25 year extension is irrational, because previous extensions were short term.

Epstein, Richard. "The Mirage of Racism | Hoover Institution." The Mirage of Racism |
Hoover Institution. N.p., 12 Mar. 2013. Web. 3 Jan. 2014.
<http://www.hoover.org/publications/defining-ideas/article/142306>.

In 1970, the political valence changed with the departure of key segregationist senators,
so that the preclearance period was extended for five more years. In 1975, the VRA was
extended for another seven years. In 1982, it jumped to twenty-five years; in 2006, it was
renewed for another twenty-five years. Now, according to the District of
Columbia Circuit Court, congruence and proportionality leap to the fore in the case.
How can a longer period with more stringent guidelines be needed today, when the 2006
version of the Act notes, significant progress has been made in eliminating first
generation barriers experienced by minority voters? Indeed the evidence is clear that
outright efforts to keep anyone from the polls on the grounds of race are few and far
between.

Warrant: There is less racism now than before, the law was necessary before, but not now.
Thernstrom, Abigail. "American Enterprise Institute." Redistricting, Race, and the Voting
Rights Act. N.p., 6 Apr. 2010. Web. 3 Jan. 2014.
<http://www.aei.org/article/society-and-culture/race-and-gender/redistricting-
race-and-the-voting-rights-act/>.

During the 2006 Voting Rights Act reauthorization process, the House Judiciary
Committee argued in its official report that Discrimination today is more subtle than the
visible methods used in 1965. However, the effects and results are the same. Rarely in
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the rich annals of congressional deceit and self-deception have more false and
foolish words been written. No meaningful evidence supported this extraordinary
claim, which did a disservice to the nation by refusing to recognize the remarkable
revolution in race relations that occurred in the second half of the 20th century. Without
question, the Voting Rights Act of 1965 was essential to the demise of the Jim Crow
South. It ended whites' exclusive hold on political power, which had made all other forms
of southern racial subjugation possible. It was an indispensable and beautifully designed
response to a profound moral wrong.

Warrant: African-American participation in government is high.

Thernstrom, Abigail. "American Enterprise Institute." Redistricting, Race, and the Voting
Rights Act. N.p., 6 Apr. 2010. Web. 3 Jan. 2014.
<http://www.aei.org/article/society-and-culture/race-and-gender/redistricting-
race-and-the-voting-rights-act/>.

Consider that in 1964, only five blacks held seats in Congress--none from any southern
state--and just 94 blacks served in any of the 50 state legislatures, with only 16 in the
southern states that were home to half of the nation's black population. But largely as a
consequence of race-conscious districting, the Congressional Black Caucus today has 42
members, 17 of them from the South. And as of 2008, almost 600 blacks held seats in
state legislatures; another 8,800 were mayors, sheriffs, school-board members, and other
officeholders. Fully 47% of these public officials lived in the seven states originally
covered by the Voting Rights Act, even though those states now contain only 30% of the
nation's black population. Especially striking is the fact that Mississippi--which once had
a well-deserved reputation as the most white-supremacist stat e in the union--now leads
the nation in the number of blacks elected to political office.

Answer: The 2400 blocked voting changes is not evidence for the con side because the justice
department has been overreaching to create oddly shaped minority districts.

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Epstein, Richard. "The Mirage of Racism | Hoover Institution." The Mirage of Racism |
Hoover Institution. N.p., 12 Mar. 2013. Web. 3 Jan. 2014.
<http://www.hoover.org/publications/defining-ideas/article/142306>.

A motive-based inquiry that looks at the intent of the public body in enacting certain
voting practices generates better results than the disparate impact approach. To scorn that
approach invites all sorts of disparate treatment. Thus there is a steady stream
of justice department initiatives that have forced states to adopt grotesquely shaped
majority-minority districts, with the sole purpose of maximizing the influence of
minority voters. All of this has met with an uncertain response in the Supreme Court,
which tries to have it both ways by applying a standard of strict scrutiny while showing at
least some respect to the Justice Departments handiwork. Yet these complex efforts that
rig district lines make it exceedingly hard to determine which, if any, of these initiatives
do increase minority representation, given that redrawing the lines for one district
necessarily redraws them for others. At this point, the irony increases. If the Fifteenth
Amendment were read as a colorblind provision, all of these redistricting efforts
with transparent racial motivations would have to be promptly struck down on the
grounds that they deny or abridge the voting rights of all citizens, black or white,
who are not in the preferred district. The notorious refusal to take this step is yet
another instance in which the ostensible effort to remove race from politics has had the
exact opposite effect.

Analysis: If con argues that there is a rational need for section four, then pro can respond by
arguing that there is no rational need. Since the prevalence of racism in the South has lessened,
since the 2006 extension was unnecessarily long, and since majority-minority districts often
disproportionately benefit minority voters, the law is not rational.