UCI LAW APALSA: ELECTION LAW PANEL
J.D. Candidate 2015, UCI Law
On Wednesday, November 13, UCI Law’s Asian Pacific American Law Student Association (APALSA) hosted a panel to discuss recent developments in election law and its effects on minority voters. The panelists included Mr. Hyongsoon Kim (counsel at Akin Gump Strauss Hauer & Feld LLP), Mr. Eugene Lee (Project Director of the Voting Rights Project at Asian Americans Advancing Justice – Los Angeles), Professor Justin Levitt (Loyola Law School), and Professor Manoj Mate (Whittier Law School). After devouring some delicious Chinese cuisine, the panelists engaged the audience in the difficult yet fascinating topic of election law and its relevance to minority voters.
Shelby County v. Holder
The first topic the panel discussed was the recent Supreme Court case Shelby County v. Holder, where the Court ruled that when Congress had passed Section 4 of the Voting Rights Act of 1965 (“Act”), it had not established a strong enough link for who would be covered under Section 5 of the Act. 570 U.S. ____ (2013). To give a brief background of Shelby County, Professor Levitt explained that Section 5 of the Act required certain states and local governments to obtain federal preclearance before implementing any changes to their voting laws or practices. Section 4 of the Act contained the coverage formula that determined which jurisdictions were subjected to preclearance based on their histories of discrimination. Professor Levitt and Professor Mate pointed out that the Court had not struck down Section 5, but rather struck down Section 4, which contained the coverage formula. By striking down Section 4, the Court rendered Section 5 inapplicable to any jurisdiction, technically striking it down as well.
When asked what surprised them the most about the holding in Shelby County, the panelists agreed that they were surprised by the Supreme Court’s disrespect for Congressional decision-making. According to the panelists, the majority opinion in Shelby County did not squarely address the burden Congress should meet in justifying the court’s decision-making process. Mr. Lee pointed out that Section 5 had been mentioned in several other Supreme Court opinions as a very good example of what Congress should do before enacting an affirmative measure that requires states to follow certain guidelines, making the holding all the more ironic. Professor Levitt stated that the Court seems to have forgotten that the Fifteenth Amendment grants Congress the power to ensure that no citizen is denied the right to vote based on his or her race or color. The Court nowhere acknowledged that through legislation such as the Voting Rights Act, Congress might be allowed to exercise this enumerated power.
Mr. Kim, a litigator currently handling a redistricting case, provided an interesting perspective to the holding. He stated that the Supreme Court seems to be the only court that does not give deference to what legislatures have come up with. Practically, most courts show deference for election law matters because oftentimes, there is very little a court can do post facto to redress harm in election law. Section 5 of the Act was essentially supposed to stop bad laws before they happen and before a need for litigation arose. By effectively striking down Section 5 through Section 4, the Court has prevented one possible solution to disenfranchisement of minority voters.
After a lengthy discussion about Shelby County, the panelists tackled the issue of redistricting and discussed its effect on minority voters. Currently, Mr. Kim is working on a redistricting case which seeks to unite Los Angeles’ Koreatown as one district. The litigation is a result of the Los Angeles City Council’s decision to divide Koreatown into three districts, a decision based solely on creating a larger African American presence in those districts. Mr. Kim pointed out that what drives the result in redistricting cases may not even be the substantive law. For example, the deliberative process privilege, which protects internal decisions and was created to foster the ability of government officials to have independent thinking and free communications, makes litigation very difficult on the other side of the adversarial system. Though the privilege is not absolute, the need for the information sought must outweigh the privilege. Professor Mate, having worked for the State of Texas on similar matters, agreed that the written communications were discouraged to prevent such information from being discoverable during any possible litigation. In addition, panelists agreed that especially in the field of election law, courts are careful not to step into the legislature’s role.
Mr. Lee stated that redistricting litigation is often even more expensive than most other civil litigation, especially because the expert witnesses that redistricting litigation requires are pricey. Mr. Lee explained that these high costs have led to the partnership between many non-profit civil rights groups and law firms that take on cases as pro bono. He encouraged students to remain cognizant of these efforts when they become lawyers in the next couple years.
During the Q&A session, I asked Mr. Kim what would be the practical significance of Koreatown being in one district. He stated that it would mobilize the community. It would give Koreatown residents, being united as one, an important community voice, and it would force politicians to pay attention to the Koreatown community. Mr. Kim also hoped that a victory in the current litigation against the city of Los Angeles would send a message to the city council that it needs to rethink the redistricting process. Professor Levitt added that by uniting the community, the people of Koreatown will have a bigger role in the political process.
Throughout the panel, one important message each of the panelists tried to relay was to stay interested and get involved. Mr. Lee encouraged the students to participate in the mobilization efforts and to help educate the electorate about the importance of voting. Mr. Kim and Professor Levitt stated that if the voting percentage of local elections looked anything like voting percentages of presidential elections, local politics would look nothing like they do today. All the panelists also encouraged the students to think about future careers in election law, whether it be through a civil rights organization, academics, or law firm, and also to contribute efforts to help overcome bad laws, educate minorities about voting rights, and help people obtain voter identification. Professor Levitt specifically encouraged students to be poll workers for a day. Who would be more fitting for such a position than a law school student attending a panel to discuss these very issues?
Before the panel, I was quite worried that I would not be able to understand the issues and be bored. On the contrary, I was enlightened by four amazing scholars, practitioners, and litigators, all of whom explained such difficult issues so carefully and clearly, and also encouraged me to stay interested and empowered by the power of voting. I left the panel a little smarter, but more importantly, with a willingness to learn more and help empower minority voices within the electorate.