By: Nate Burchard
On October 25, 2016, the William & Mary Election Law Society Speaker Series hosted attorney Will Consovoy. Consovoy is an appellate attorney and founding partner of Consovoy McCarthy Park LLC, co-director of the George Mason University School of Law Supreme Court Clinic, and former law clerk to Supreme Court Justice Clarence Thomas.
Consovoy devoted most of the hour to discussing his role representing Shelby County, Alabama in the 2013 Supreme Court case Shelby County v. Holder, which controversially negated parts of the Voting Rights Act of 1965. Consovoy knew walking in that he would likely face some pushback from the students and faculty in attendance, so he focused on defending the Court’s rationale in light of the popular criticism.
The Voting Rights Act of 1965 created a formula to evaluate voter discrimination. However, the formula only applied to certain southern states and later to Texas, Arizona, Alaska, and other individual counties. Under this statute, any changes that these areas make to their voting laws are subject to preclearance approval by the Attorney General or the D.C. Circuit Court. In Shelby v. Holder, the Court decided that the coverage area was unconstitutional due to its basis on data over forty years old and its reauthorization through 2031.
Consovoy explained that although the coverage area formula may be rational in theory at its inception, it was not rational in practice in the modern day. Despite the popular results reducing discrimination, Consovoy argued the rule is not a rational basis for imposing the preclearance requirement. He noted that the dissenting Justices did not respond to this point. Additionally, Section 2 of the Voting Rights Act still prohibits discriminatory election practices and allows private plaintiffs to sue to enforce the prohibition.
Consovoy also pointed out that, currently, discrimination is not limited to within the now-defunct Section 4 coverage area. To modernize preclearance and combat voter discrimination broadly, Congress would have to amend the formula and coverage area, which is unlikely. New restrictive election laws have passed in Wisconsin, New York, and Illinois, but states outside of the Section 5 coverage area do not want to be forced to comply with its costly preclearance procedures. These examples, according to Consovoy, show that the claim that the Shelby County decision led to new discriminatory laws is a myth. However, a student in the audience responded noting that Virginia and Texas, both formerly subject to Section 5 preclearance, enacted Voter ID laws soon after the Court’s decision.
Another student asked why the formula and coverage area needed to be negated if it was continually evolving with periodic congressional amendments. Consovoy argued that Section 5 is still unconstitutional because states within its control are presumed guilty of discrimination and must prove their innocence, contrary to defendants in cases brought under Section 2. Again, he contended that Section 2 still provides means to combat voter discrimination without the unfair blanket coverage under Section 5. However, the Texas and Virginia Voter ID laws raise the question of whether Section 5 coverage area was justified and forty-year-old data is outdated after all.
Answering other questions, Consovoy discussed why Shelby County was chosen as the plaintiff for the case, the Court’s 2009 decision in Northwest Austin Municipal Utility District No. 1 v. Holder, and whether or not the Court would have taken the case had it arisen in 2016.
Afterwards, Consovoy provided some encouragement for students interested in pursuing election law. He noted the need for “a little new blood in the field,” and plenty of opportunity for important work at the state level and federal level on issues from ballot access to campaign finance.