[EL] Literacy tests

Fri Aug 28 12:34:45 PDT 2020

Apropos this discussion, I wrote a piece last week about revising Section 2 to allow the federal government to be named as a defendant: https://takecareblog.com/blog/the-voting-rights-act-should-be-amended-to-apply-to-the-federal-government

To go back to the original question. For an example of an election rule that applies solely to federal but not state elections, I’d suggest citing the Twenty-Fourth Amendment, which bans poll taxes only in elections for President/Vice President, Senators, and Congresspersons. However, the VRA and the Court’s decision in Harper have essentially mooted that distinction, and poll taxes are now banned in federal and state elections.

Travis Crum
Associate Professor of Law
Washington University in St. Louis
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email: crum at wustl.edu
website: https://law.wustl.edu/faculty-staff-directory/profile/travis-crum/
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From: Law-election <law-election-bounces at department-lists.uci.edu> on behalf of Doug Spencer <dougspencer at gmail.com>
Date: Friday, August 28, 2020 at 2:19 PM
To: Mark Scarberry <mark.scarberry at pepperdine.edu>
Cc: Election Law Listserv <law-election at uci.edu>
Subject: Re: [EL] Literacy tests

My apologies for creating this confusion. I misinterpreted Mark's original question, which I read to ask whether §2 was limited to *only* elections featuring candidates for federal office. That is clearly not the case, but I now realize that is not what Mark was getting at. So the better answer is "what Pam said." (And isn't that always the better answer?)

Doug

On Fri, Aug 28, 2020 at 12:52 PM Mark Scarberry <mark.scarberry at pepperdine.edu<mailto:mark.scarberry at pepperdine.edu>> wrote:
My thanks to Pam for this clarification. I was about to send the following post in response to Doug when hers came through.

BEGINNING OF SOMEWHAT SUPERSEDED POST:

Yes, the majority of the cases involve such state and local issues. That doesn’t mean that section 2 doesn’t apply to issues involving elections for federal offices. The Supreme Court has considered section 2 in connection with congressional redistricting schemes put in place by state legislatures. See the 2006 LULAC case (548 US 399); Shaw v. Reno (1993) (rejecting claim that use of race in that particular congressional redistricting was required by section two, and not suggesting that section 2 was inapplicable); ditto, I think, Shaw v. Hunt (1996); Bush v. Vera (1996) (similar, I think); see also Cooper v. Harris (2017).

Maybe I’m missing something.

END OF SOMEWHAT SUPERSEDED POST

Mark

Mark S. Scarberry
Professor of Law
Pepperdine University
Rick J. Caruso School of Law
________________________________
From: Pamela S Karlan <pkarlan at stanford.edu<mailto:pkarlan at stanford.edu>>
Sent: Friday, August 28, 2020 11:18:59 AM
To: Doug Spencer <dougspencer at gmail.com<mailto:dougspencer at gmail.com>>; Mark Scarberry <mark.scarberry at pepperdine.edu<mailto:mark.scarberry at pepperdine.edu>>
Cc: Election Law Listserv <law-election at uci.edu<mailto:law-election at uci.edu>>
Subject: Re: [EL] Literacy tests

Some readers might be confused by this recent exchange.  The federal government cannot be a defendant in a section 2 lawsuit, because the text of the statute applies only to "any State or political subdivision," 52 USC 10301.  But because states and localities run the election process, section 2 lawsuits can involve elections to federal office.  E.g., the state decides  district lines to use for House seats.

Pamela S. Karlan

Kenneth and Harle Montgomery Professor of Public Interest Law

Co-Director, Supreme Court Litigation Clinic

Stanford Law School

karlan at stanford.edu<mailto:karlan at stanford.edu>

650-725-4851

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From: Law-election <law-election-bounces at department-lists.uci.edu<mailto:law-election-bounces at department-lists.uci.edu>> on behalf of Doug Spencer <dougspencer at gmail.com<mailto:dougspencer at gmail.com>>
Sent: Friday, August 28, 2020 10:30 AM
To: Mark Scarberry <mark.scarberry at pepperdine.edu<mailto:mark.scarberry at pepperdine.edu>>
Cc: Election Law Listserv <law-election at uci.edu<mailto:law-election at uci.edu>>
Subject: Re: [EL] Literacy tests

Quite the contrary, Mark. The majority of §2 cases address election rules that are unrelated to federal offices. For example, here<https://www.justice.gov/crt/cases-raising-claims-under-section-2-voting-rights-act-0> is a sample of cases where the DOJ filed suit under §2: redistricting of state legislatures, election methods for town and county commissions, election methods for school boards, etc.

The VRA's key fault line is race, not office.

Best,
Doug

On Fri, Aug 28, 2020 at 10:57 AM Mark Scarberry <mark.scarberry at pepperdine.edu<mailto:mark.scarberry at pepperdine.edu>> wrote:
A quick addition:

State and local governments run elections. Isn’t it clear that section 2 applies to elections for federal offices?

Mark S. Scarberry
Professor of Law
Pepperdine University
Rick J. Caruso School of Law
________________________________
From: Law-election <law-election-bounces at department-lists.uci.edu<mailto:law-election-bounces at department-lists.uci.edu>> on behalf of Doug Spencer <dougspencer at gmail.com<mailto:dougspencer at gmail.com>>
Sent: Friday, August 28, 2020 9:43:07 AM
To: Smith, Bradley <BSmith at law.capital.edu<mailto:BSmith at law.capital.edu>>
Cc: Election Law Listserv <law-election at uci.edu<mailto:law-election at uci.edu>>
Subject: Re: [EL] Literacy tests

A few notes following on Pam's message:

The original ban on literacy tests in §4(a) of the VRA<https://www.ourdocuments.gov/doc.php?flash=true&doc=100&page=transcript> applied specifically to the "covered" states identified in §4(b). When the VRA was amended in 1975, the language was changed<https://uscode.house.gov/statviewer.htm?volume=89&page=400> to apply nationwide (what is now codified in §10501), meaning the ban was not affected when §4(b) was struck down in Shelby County.

Supposing the Court were to invalidate §4(a) for some reason, literacy tests would still be subject to §2 which prohibits any "voting qualification or prerequisite to voting" as well as any "standard, practice, or procedure" that denies or abridges the right to vote on account of race or color.

Flipping your student's query on its head, though, §2 only applies to state and local governments and not the federal government.

Doug

[cid:image001.png at 01D67D48.5FF8B360]

On Fri, Aug 28, 2020 at 10:19 AM Smith, Bradley <BSmith at law.capital.edu<mailto:BSmith at law.capital.edu>> wrote:
Also applies nationwide.

Bradley A. Smith
Josiah H. Blackmore II/Shirley M. Nault Professor of Law
Capital University Law School
303 East Broad Street
Columbus, OH 43215
Phone: (614) 236-6317
Mobile:  (540) 287-8954

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From: Law-election <law-election-bounces at department-lists.uci.edu<mailto:law-election-bounces at department-lists.uci.edu>> on behalf of Ilya Shapiro <IShapiro at cato.org<mailto:IShapiro at cato.org>>
Sent: Friday, August 28, 2020 12:06 PM
To: Eric J Segall <esegall at gsu.edu<mailto:esegall at gsu.edu>>; Pamela S Karlan <pkarlan at stanford.edu<mailto:pkarlan at stanford.edu>>
Cc: Election Law Listserv <law-election at uci.edu<mailto:law-election at uci.edu>>
Subject: Re: [EL] Literacy tests

Doubtful. This is a permanent part of the statute rather than an extraordinary, “temporary” provision.

Ilya Shapiro

Director, Robert A. Levy Center for Constitutional Studies

Publisher, Cato Supreme Court Review

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From: Law-election <law-election-bounces at department-lists.uci.edu<mailto:law-election-bounces at department-lists.uci.edu>> On Behalf Of Eric J Segall
Sent: Friday, August 28, 2020 12:01 PM
To: Pamela S Karlan <pkarlan at stanford.edu<mailto:pkarlan at stanford.edu>>
Cc: Election Law Listserv <law-election at uci.edu<mailto:law-election at uci.edu>>
Subject: Re: [EL] Literacy tests

*CAUTION: External Email*

Irony of course is the Court could strike this down as beyond congressional power because the problem of literacy tests has been solved. Current conditions and all.....

e

Sent from my iPhone

On Aug 28, 2020, at 11:58 AM, Pamela S Karlan <pkarlan at stanford.edu<mailto:pkarlan at stanford.edu>> wrote:

52 U.S.C. 10501 bans literacy tests in all elections:

10501. Application of prohibition to other States; "test or device" defined

(a) No citizen shall be denied, because of his failure to comply with any test or device, the right to vote in any Federal, State, or local election conducted in any State or political subdivision of a State.

(b) As used in this section, the term "test or device" means 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.

Pamela S. Karlan

Kenneth and Harle Montgomery Professor of Public Interest Law

Co-Director, Stanford Supreme Court Litigation Clinic

Stanford Law School

559  Nathan Abbott Way

Stanford, CA 94305

karlan at stanford.edu<mailto:karlan at stanford.edu>

650.725.4851

On Aug 28, 2020, at 8:53 AM, Kogan, Vladimir <kogan.18 at osu.edu<mailto:kogan.18 at osu.edu>> wrote:

Hi everyone, a student asked me this question and I was embarrassed to not know the answer: Does the Voting Rights Act’s prohibition on literacy tests apply only to federal elections? In other words, could a state today implement a literacy tests requirement for state and local elections?

Thanks in advance!

Vlad Kogan

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Vladimir Kogan, Associate Professor and Director of Undergraduate Studies
Department of Political Science

2004 Derby Hall | 154 N. Oval Mall, Columbus, OH 43210-1373

510/415-4074 Mobile

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