On Tuesday, as our colleagues at The National Law Journal reported, a sharply divided U.S. Supreme Court issued a 5-to-4 ruling in Shelby County v. Holder. The decision struck down as unconstitutional section 4 of the Voting Rights Act, which includes the formula used to determine which jurisdictions should face special scrutiny when altering their election processes. The majority opinion [PDF] found the formula was based on outdated data, but stopped short of striking down section 5 of the Voting Rights Act, which allows the federal government to require preapproval of changes from jurisdictions with a history of discriminating against minority voters. Unless Congress passes a new bill stating which jurisdictions to cover, section 5 is essentially toothless.
In a dissent [PDF] to Tuesday’s majority opinion, Justice Ruth Bader Ginsburg wrote, “The court stops any application of section 5 by holding that section 4(b)’s coverage formula is unconstitutional.”
The decision leaves hanging some of the most notable pro bono victories large law firms won last year, especially those that relied heavily on the “preclearance” mechanism of section 5. Lawyers from firms including Arnold & Porter; Dechert; Fried, Frank, Harris, Shriver & Jacobson; and Sullivan & Cromwell donated thousands of hours of time seeking to block newly passed laws in Pennsylvania, South Carolina, and Texas requiring voters to pre­sent photo ID at the polls. The Texas and South Carolina cases in particular were brought under section 5. Although the Pennsylvania case, which was brought under state law, won’t be affected by Tuesday’s ruling, the impact on the Texas and South Carolina cases will play out in the federal courts over the coming months. “I think people might have a tendency to underestimate just how important this is,” says Fried Frank partner Michael de Leeuw, who worked pro bono on both the Texas and South Carolina voter ID challenges. “Yes, things have improved. But a large reason for that is because of section 5.”
Dechert partner Ezra Rosenberg, one of the pro bono leaders in the Texas case, says that Tuesday’s decision “essentially took away the ability to enforce what it is one of the most important laws of our land. It did so on the basis that the law was successful. . . . It was made clear last year its job had not been completed, and I really hope that Congress does take moves to react to the opinion.”
At their core, voter ID laws pit a desire to prevent election fraud against the danger of discrimination against poor, elderly, and minority voters, who are less likely to have the required photo identification. It was the Supreme Court’s 2008 decision in Crawford v. Marion County Election Board signing off on Indiana’s voter ID law that led to the explosion in similar legislation elsewhere. During the 2011 and 2012 legislative sessions alone, 11 states enacted such laws, according to New York University's Brennan Center for Justice. The cases challenging voter ID laws in Pennsylvania, Texas, and South Carolina were filed, tried, and decided in the year leading up to last year’s federal election, making these some of most fast-paced, labor-intensive pro bono assignments of the year. “I can’t think of a more important issue,” says Dechert’s Rosenberg. “It is the intersection of the right to vote, which is as fundamental as any right in our country, and racial discrimination, which is as big a problem as we’ve ever had.”
The country’s history of racial prejudice played a major role in the Texas and South Carolina cases, in particular, since any changes to their election laws were subject to “preclearance” under section 5. Before Tuesday’s ruling, a change could be precleared in the jurisdictions by getting the blessing of the attorney general of the United States or by winning a declaratory judgment from a three-judge panel of the U.S. District Court for the District of Columbia. (In section 5 lawsuits, the federal government is the lead defendant, and lawyers from the U.S. Department of Justice act as lead defense counsel.)
At issue in the Texas case was a law enacted in May 2011 that requires voters to present one of several forms of photo ID at the polls: a driver’s license, military ID, citizenship papers, a U.S. passport, or a license to carry a concealed handgun. Although the law authorized the state’s department of public safety to issue free election ID cards, voters would have to present documentation to get them—and the least expensive option was a birth certificate, which costs $22 in Texas. There were logistical problems, too: The ID card was to be made available at state driver’s license offices, but 81 of the state’s 254 counties did not have operational driver’s license offices.
The state went to court to try to expedite the preclearance process in January 2012, filing suit in federal district court in Washington, D.C., even before the attorney general had decided whether to sign off on the new state law. (The state’s attorney general filed the complaint, but Texas was also represented in the litigation by paid counsel at Bartlit Beck Herman Palenchar & Scott.) In March 2012 the Justice Department rejected the law, finding that it would weigh heavily on poor Texans, who were disproportionately likely to be Hispanic.
Both Dechert and Fried Frank were active in the Texas case, representing defendant-intervenors, groups of interested parties who actively take part in the litigation to make sure their concerns are considered by the court. Dechert got involved in the Texas case through its relationship with the Lawyers’ Committee for Civil Rights Under Law, where the firm’s pro bono partner, Suzanne Turner, is a board member. The firm represented a pair of defendant-intervenors—the Texas State Conference of NAACP Branches and the Mexican-American Legislative Caucus of the Texas House of Representatives—along with cocounsel at the Lawyers’ Committee, the Brennan Center, the NAACP, and Texas solo practitioner Jose Garza.
With a long list of other parties intervening, Dechert’s Rosenberg took a coordinating role as the intervenors’ co–liaison counsel. “Ezra had a really good way of making sure that everybody had the opportunity to be heard and that everybody was given proper input,” says Rosenberg cocounsel Myrna Perez of the Brennan Center, one of 38 attorneys who represented defendant-intervenors in the case.
Fried Frank represented the Texas League of Young Voters Education Fund and individual students whose state university–issued ID cards were not acceptable as photo ID under the Texas law. The firm was brought into the case by its cocounsel at the NAACP Legal Defense and Educational Fund, where Fried Frank sponsors a fellowship for young lawyers. “Intervenors brought a real human element to the trial that wouldn’t have existed otherwise,” says Fried Frank associate Adam Harris, who cross-examined one of the state’s expert witnesses at trial.
With one week of testimony set for July 2012 before the three-judge federal panel in Washington, D.C., pretrial motions and discovery were conducted at a frantic pace. The parties faced strict time limits: Texas and Justice each got 10 hours for opening statements, witnesses, and cross-examination, and the intervenors received just five hours in total.
With that in mind, Rosenberg boiled the intervenors’ opening statement to a couple of sentences: Texas’s law was a solution in search of a problem. It would only stop instances of in-person voter fraud, but Texas had little evidence that such bold, risky crimes ever happened.
In August the panel denied Texas’s bid for preclearance, calling the state’s voter ID law the “most stringent in the country.” In particular, Judge David Tatel of the U.S. Court of Appeals for the D.C. Circuit wrote that Texas’s legislature had tabled or defeated multiple amendments that would have helped the law pass muster. Among them were provisions that would have made student or Medicare ID cards acceptable at the polls and waiving all fees for the documents that poor Texans would need to obtain an ID.
Texas has appealed the panel’s decision to the U.S. Supreme Court where it was pending at press time. On Tuesday it was unclear whether the Supreme Court’s Shelby County decision would affect the findings in the Texas case, but Texas Attorney General Greg Abbott was acting quickly to implement the state’s voter ID law, issuing a statement saying that it “would take effect immediately.” While Dechert’s Rosenberg declined to comment on the decision’s impact on the Texas case, The Dallas Morning News reported Tuesday that Laughlin McDonald of the ACLU conceded on a call with reporters that the state has "a very strong argument" that it can implement the voter ID law and others that previously required federal approval in light of the Shelby County decision.
The week the Texas decision came down in August 2012, a separate Washington, D.C., federal panel was hearing a weeklong trial over the South Carolina ID law. South Carolina’s law was partly modeled on the Indiana law that survived scrutiny in Crawford. After Attorney General Eric Holder denied South Carolina’s preclearance bid in late 2011, the state filed suit in February 2012, with paid outside counsel at Bancroft PLLC.
Sullivan & Cromwell was brought into the South Carolina litigation by cocounsel at Lawyers’ Committee, where S&C of counsel Michael Cooper is a former cochair of the board. Cooper enlisted partner Garrard Beeney to lead the team representing defendant-intervenor the League of Women Voters of South Carolina. (Sullivan & Cromwell’s cocounsel were Charleston’s Derfner, Altman & Wilborn, and lawyers from the Brennan Center.) In an interview this spring, Beeney said the pace demanded by the impending November election meant that the team representing the intervenors went through “three years of litigation in three months.”
At trial, the fate of the South Carolina law turned on how state officials interpreted who had a “reasonable impediment” to getting photo ID. The law allowed voters with “a reasonable impediment” to cast provisional ballots by signing an affidavit indicating the reason that they did not have a photo ID, but there was nothing in the statute indicating what would qualify as such an impediment or say who would decide what specified as a reasonable impediment. During the trial, the state’s leading election official and attorney general clarified that voters would be able to vote without a photo ID if they presented the previously required nonphoto ID and signed an affidavit.
In October the panel issued a decision blocking South Carolina from implementing the law during the 2012 election because it was too close to the November election, but precleared the law for elections starting in 2013. In a concurrence, U.S. District Judge John Bates wrote that the law that was precleared in the decision was not the law as it was enacted in 2011 because of the evolving interpretation of key provisions provided by state officials during the trial that made it less restrictive to satisfy the requirements of the Voting Rights Act. “Without the review process under the Voting Rights Act, South Carolina’s voter photo ID law certainly would have been more restrictive,” Bates wrote.
Although the state ultimately won preclearance in the South Carolina case, the intervenors “lost the battle but won the war,” Cooper said this spring. “The state succeeded in getting a judgment getting the legislation upheld. But the statute that was upheld by the court was not one that was discriminatory against minorities.” Cooper and Beeney were not available for comment after the Shelby County decision was handed down Tuesday. Fried Frank’s de Leeuw, who represented intervenors in the South Carolina lawsuit alongside the NAACP Legal Defense and Educational Fund, says Tuesday’s decision will likely increase the burden on nonprofit organizations seeking to block discriminatory election laws. Although such challenges can be brought under section 2 of the Voting Rights Act, de Leeuw says, the burden of proof sits with those challenging the law rather than the jurisdiction making the changes. Civil rights organizations and firms working pro bono “are really going to be stretched thin, and it’s going to be a problem,” he says.
Unlike the South Carolina and Texas cases, Pennsylvania’s case was filed under state, not federal, law since the state’s constitution expressly grants citizens the right to vote. Pennsylvania was not subject to section 5 preclearance, so the burden of proof would have fallen on the coalition of nonprofit civil rights groups represented by Arnold & Porter senior counsel David Gersch.
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