Monthly Archives: March 2013

Shelby County Challenges Preclearance Provision of Voting Rights Act

By Jim McLeod, Junior Editor

            The Supreme Court recently heard oral arguments in Shelby County v. Holder, a case involving a constitutional challenge to a provision of the Voting Rights Act of 1965 requiring federal preclearance of changes in certain states’ voting laws.  Section 5 of the Act requires that an attempt to change “any voting qualification or prerequisite to voting, or standard, practice, or procedure with respect to voting” in any “covered jurisdiction” receive “preclearance” by an administrative ruling of the Department of Justice or a declaratory judgment from the United States District Court for the District of Columbia. 

            The provision is targeted at preventing racial discrimination at the polls in certain states – Alabama, Alaska, Arizona, Georgia Louisiana, Mississippi, South Carolina, Texas and Virginia – and a few counties in other states with a history of discriminating against minorities in elections.  Voting practices that have raised red flags include administering literacy tests as a prerequisite for voting privileges, refusing to offer multilingual ballots, and redistricting to reduce minority influence.  Also, states and counties that in which less than half of the eligible minority populations are registered to vote are subject to federal preapproval when attempting to implement changes in voting procedures.  The Act has been renewed and amended by Congress several times, including the recent 25-year extension by the Bush administration in 2006.

            In April 2010, Shelby County, Alabama filed suit in the United States District Court for the District of Columbia, alleging that Congress exceeded its constitutional authority in renewing Section 5 in 2006.  The court upheld the constitutionality of the Act, and was affirmed by the U.S. Court of Appeals for the D.C. Circuit, giving deference to Congress’ conclusion that there continues to be a need for the preclearance requirement.  The Supreme Court granted certiorari, limiting the issue to whether Congress exceeded its authority in reauthorizing Section 5 of the Voting Rights Act in 2006, and heard oral arguments on February 27, 2013. 

            Bert Rein, attorney for Shelby County, argued that the Act should no longer apply to the state because there is sufficient evidence that minorities are fairly represented at the polls.  In response, Justice Breyer offered that the Voting Rights Act serves as a check on discriminatory voting practices, and Alabama’s good record is only evidence that the law is working and should be kept in effect.  Justice Sotomayor observed that Shelby County was sued by the Justice Department in 2008 for using large voting districts to make it difficult for minority groups to elect members to city councils – “[S]ome parts of the South have changed.  Your country pretty much hasn’t.  You may be the wrong party bringing this suit.”

            Rein also argued that Section 5 of the Voting Rights Act contradicts the constitutional principle of equal application of the law, as it singles out certain states and counties for federal scrutiny and hasn’t changed the criteria for determining which states must receive preclearance.  Justice Kennedy, often the swing vote, seemed to side with Shelby County, saying that the rigid formula used to determine which states require preclearance may have worked well in 1965, but may be unnecessary in 2013. 

            Justice Scalia suggested that the continued renewal of Section 5 of the Voting Rights Act demonstrates the “perpetuation of racial entitlement,” asserting that lawmakers have only continued to renew the law because there is no political advantage in voting against it.  “Whenever a society adopts racial entitlements, it is very difficult to get out of them through the normal political processes,” Scalia offered during oral argument.  “Even the name of it is wonderful, the Voting Rights Act.  Who’s going to vote against that?” Scalia asked. 

            Texas has also appealed a federal court ruling that the state discriminated against minorities with new redistricting maps.  Justices have not yet selected the case for review and some argue that they may hold the case until the Shelby County case is decided this summer, as both consider the issue of whether Section 5 of the Voting Rights Act is unconstitutional and no longer needed. 

            Many believe that the Court’s remarks during oral argument suggest that Section 5 will likely be removed from the Voting Rights Act, and even President Obama, in a local television interview, seemed to be preparing people for the provision to be struck: “People will still have the same rights no to be discriminated against when it comes to voting.  You just won’t have this mechanism, this tool, that allows you to kind of stay ahead of certain practices.”


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Taxation Without Representation: Civil Rights Violations in the American Colonies

By: Derek Rajavuori, Junior Editor


This Tuesday, March 5th, marked the 243rd anniversary of the Boston Massacre, one of the major revolution-era happenings that precipitated the struggle for colonial independence.  While the precise circumstances surrounding the incident are unclear, it at least amounted to an unequivocal indication that the colonists were unhappy with the state of things.  Moreover, it is also undisputed that a group of British soldiers fired into a crowd of protesting colonists, thereby drastically infringing upon the right to free speech and assembly.  This, and many other civil rights violations, undoubtedly influenced the mindset of the founding fathers as the rebelled and restructured the nation. 

In the latter half of the 18th century, the British fisc was burdened by its military projects and an extensive imperial agenda.  It had recently finished a war in the colonies – the French and Indian War – and was engaged in a number of ongoing conflicts across the globe.  To help ease the financial load, the Crown began to levy and enforce strikingly high taxes and tariffs on sugar, molasses, and of course, on tea.[1]  Because the colonists had no representation in parliament, they had to result to civil discourse in order to ensure that their distaste was heard.[2]  Culminating with the Boston Tea Party in 1773, the colonists engaged in a massive campaign to eliminate “taxation without representation.”

Closely related to the fiscal issues stemming from the Crown’s military campaigns, the British also feared economic competition with other nations.  To prevent their adversaries from gaining a share of the colonial market, the British navy routinely interfered with the colonists’ attempts to purchase foreign goods.[3]  The colonists, in effort to avoid the drastic tariffs, frequently sought to purchase goods from outside markets, but they were thwarted by these British practices.[4]  Combine this with the overbearing prices on precious goods, and you have a recipe for revolution. 

Equally important to the revolution as the Crown’s taxation and economic restrictions was the presence of the British regulars – colloquially known as the “redcoats.”  Years of military occupation instilled a fear in the members of the Constitutional Convention that a national standing army would pose an intolerable threat to individual liberty.[5]  It resulted in a strong conviction to keep the military subordinate to civilian authority.  In Federalist No. 41, James Madison explained that a standing force is an “object of laudable circumspection and precaution” and indicated that a wise nation will exercise prudence in eliminating the both the necessity and the danger of resorting to one.[6]  “The clearest marks of this prudence,” Madison indicated, “are stamped on the proposed Constitution.”[7]

The colonists were dissatisfied with the elevation of the British military over civil authority.  The Declaration of Independence, for example, renounced the Crown expressly because it rendered “the Military independent of and superior to the Civil Power.”[8]  The expansion of military power at the expense of local civil authority led to a number of well-known oppressive aspects of life in the colonies.  In Boston, for example, the British began quartering soldiers in colonists’ homes as a form of intimidation.  This practice clearly influenced the framers in drafting the Bill of Rights.[9]

The state of civil rights in the colonies was heavily reflected in the structure and substance of a number of provisions in the Constitution and Bill of Rights.  For example, stemming from their experience with the British military occupation, the Founders strongly believed that individual liberty would be best served by the provision of a robust civil, rather than military, criminal process.[10]  The right to a trial by jury in criminal cases is one of the most significant and obvious protections included as a consequence of this line of reasoning.[11]  Deprivation of the right to a trial by jury was one of the driving forces of the American Revolution, and the Declaration famously declared its “solemn objections” to the King’s practice of “depriving us in many cases, of the benefits of Trial by Jury.”[12]   Less obvious, but equally important to individual liberty, was the basic structure of the federal judiciary.  The Constitution dictates that Article III judges be appointed and receive lifetime tenure, and it provides them with immunity to salary decreases.[13]  These three provisions seek to ensure that the federal bench is separate and independent from the political branches of government.  The Supreme Court has since verified that “[c]ourts and their procedural safeguards are indispensable to our system of government.  They were set up by our founders to protect the liberties they valued.”[14]

The Constitution also contains a number of other provisions that are arguably rooted in pre-revolution British practices.  For example, while it named the President Commander-in-Chief, it also established crucial limitations on that power.  Congress, rather than the President, has the power to declare war.[15]  Indeed, the President’s military power is “dependent upon Congress for both the authority to wage a war and the means by which to do so.”[16]  The right to petition for the writ of habeas corpus, at least as it was originally understood, also reflects the critical role the Founders placed on civilian criminal process; it provides a right of an accused to access civilian courts.[17]  Alexander Hamilton explained that “confinement of the person, by secretly hurrying him to jail, where his sufferings are unknown or forgotten, is a less public, a less striking, and therefore a more dangerous engine of arbitrary government.”[18]  This danger was significant enough to lead to the provision of the writ.

Although this list is by no means exhaustive, it provides a few examples of how life in the colonies influenced the revolution itself, and how it was reflected in various provisions of the Constitution.  The colonists were propelled into revolution by what they saw as intolerable violations of individual liberty, and they eventually succeeded in doing the impossible – fending off the Crown’s attempts to retain sovereign control.  As the framers met to structure our government not long afterwards, the restraints on liberty were undoubtedly fresh in their minds.  In order to avoid creating a restriction-heavy federal government, they allowed their experience to influence their actions, thereby providing and protecting the rights we hold dear today.





[1] Robert Middlekauff, The Glorious Cause: The American Revolution, 1763-1789 207 (2005)

[2] Id. at 227

[3] Id. at 289

[4] Id.

[5] Perpich v. Dep’t of Defense, 496 U.S. 334, 340 (1990)

[6] The Federalist No. 41, at 321 (James Madison)

[7] Id.

[8] The Declaration of Independence para. 14 (U.S. 1776)

[9] See U.S. Const. amend. III. (prohibiting the forced quartering of soldiers).

[10] Ex parte Milligan, 71 U.S. 2, 119 (1866).

[11] U.S. Const. art. III, §2.

[12] The Declaration of Independence para. 20 (U.S. 1776).

[13] U.S. Const. art III, §1.

[14] Duncan v. Kahanamoku, 327 U.S. 304, 322 (1946).

[15] U.S. Const. art I, §8, Cl. 11

[17] U.S. Const. art I, §9.

[18] The Federalist No. 84 (Alexander Hamilton)

Reasonable Expectations of Privacy in Fourth Amendment Search and Seizures

Will Harris, Junior Editor, Alabama Civil Rights and Civil Liberties Law Review

Will Harris, Junior Editor, Alabama Civil Rights and Civil Liberties Law Review

By Will Harris, Junior Editor

          The Fourth Amendment to the United States Constitution protects citizens against unreasonable searches and seizures by the government, stating, “[t]he  right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures shall not be violated.”[1] One of the main issues that arises when dealing with a search and seizure is whether or not the government conducted a search, and if not, whether or not the evidence obtained by the governments actions are admissible as evidence in criminal trials. As technology and means of communication and interactions have changed, the lines have become more and more blurred as to what constitutes a search by the police, as old rules seem to no longer apply, or are difficult to apply to modern modes of technology.

            For a long time, the Court’s analysis of where or not there was a “search” was closely linked to the common law principles of trespass, and required some sort of physical intrusion.[2] In Kyllo, the police used heat sensing devices, without a warrant, to obtain evidence that the defendant was growing marijuana inside his home.[3] The Court determined that this did not constitute a search under the Fourth Amendment as there was not physical intrusion into the house and that this was simply an “off –the-wall” observation.[4] However, while the physical intrusion test is still used when there is clearly a trespass, in cases where a trespass is more uncertain, courts have developed a reasonable expectation of privacy analysis.[5] In Katz v. United States, the courts ruled that a violation occurred when the police obtained evidence through a wiretap placed on top of a public pay phone.[6] The Court in Katz reasoned that the defendant in Katz exhibited an actual expectation of privacy and that the expectation was reasonable, and therefore the government had conducted a search when they obtained evidence through the wiretap.[7] The Court said that Kyllo complied with Katz, because the evidence obtained in Kyllo was evidence that could also have been obtained through simple observation, for example, they could have simply seen snow melting at different rates on different points of the house indicating higher temperatures at those areas, which would have been consistent with the use of heat lamps to grow marijuana.[8]

In 2012, the Supreme Court decided United States v. Jones,[9] in which the court again used the trespass analysis exhibited in Kyllo. In Jones, the defendant was the owner of a nightclub, and was suspected of trafficking in narcotics.[10] In order to obtain evidence the police placed a GPS monitoring device on the defendant’s Jeep while it was parked in a public parking lot, and then monitored the vehicle’s movement over the next 28 days.[11] Although all members of the court agreed that this tactic constituted a search, and because it was not consistent with a search warrant the evidence was illegally obtained, the Justices were split as to the reasoning of why this constituted a search.[12] The government argued that no search had occurred, because there is no reasonable expectation of privacy to the area of the car where the GPS was placed, because it was placed on the outside of the car.[13]Four Justices however, agreed with Justice Scalia, saying that this was a search because it constituted a trespass on personal property.[14] In a concurring opinion, four Justices, while agreeing with the outcome, argued that it was wrong to base the reasoning on 18th century tort law.[15] This concurring opinion reasoned that this did constitute a search in violation of the Fourth Amendment; however, it did so using the “reasonable expectation of privacy” analysis presented in Katz.[16]

Justice Sotomayor delivered the deciding vote on which line of reasoning would be used in the outcome of United States v. Jones.In her concurring opinion, Justice Sotomayor agreed with the opinion written by Justice Scalia, saying that a search had occurred where “the Government obtains information by physically intruding on a constitutionally protected area.”[17] Therefore, the reasoning used in determining that the use of GPS to track the movement of a car was in violation of the Fourth Amendment was that it was a physical intrusion by the government and therefore a trespass. With increasing technology, this leaves many areas up to debate as to whether or not the government will be able to use information gained through different technology when not in compliance with a search warrant. For example, in Jones, the GPS used by the government was placed on the car by the government; however, many cars now come equipped with GPS devices that monitor cars movements. If the government gained information through a GPS device which the car owner knows is operating in the car, then there is clearly no physical intrusion. The question then would become whether or not this constituted a violation of a person’s reasonable expectation of privacy. Justice Alito’s concurring opinion clearly indicates that it would be a violation. Justice Alito goes on to discuss the emergence of different types of technology and Fourth Amendment issues they may pose, for example, cell phones and wireless devices that track the locations of the users. The concurring opinion suggests that the idea of a reasonable expectation of privacy will be constantly changing, stating “[t]he availability and use of these and other new devices will continue to shape the average person’s expectation about the privacy of his or her daily movements.”[18] Justice Sotomayor’s concurring opinion, although she agreed with the trespass reasoning in this case, seems to suggest that even in cases where the individual knows their movements or phone records are being monitored, that there still may be a violation of a reasonable expectation of privacy. Justice Sotomayor states, “[m]ore fundamentally, it may be necessary to reconsider the premise that an individual has no reasonable expectation of privacy in the information voluntarily disclosed to third parties.”[19] From the dicta presented in the concurring opinions it appears that in the future, at least with respect to tracking a person’s movement, individuals would still have a reasonable expectation of privacy in things like GPS records, and therefore the government would need a warrant to obtain evidence from that information, however, that expectation of privacy may be changing with the emergence of new technology.

A further issue with the reasonable expectation of privacy arises with the ever changing methods of social media. There are numerous examples of police using fake Facebook accounts in order to obtain evidence and make arrests.[20] In these instances, police officers are either searching open Facebook accounts or creating fake profiles to “friend” and gain access to private profile accounts, collecting evidence against suspects in this manner. It would seem that a person would not have a reasonable expectation of privacy with things they place on the internet, especially if they have opened their profile to other profiles, however, Justice Sotomayor, as well as those agreeing with Justice Alito’s concurring opinion, suggest that there still may be some debate as to the degree of privacy a person can expect in these situations.  Of course, all of these situations can be avoided with compliance with a search warrant; however, issues with a person’s reasonable expectation of privacy arise when this information is obtained without a warrant or without complying with a warrant. As these situations become more common, and as technology continues to grow, it will be interesting to see the outcome of cases involving a person’s reasonable expectation of privacy and Fourth Amendment search and Seizures.

[1]U.S. Const. amend. IV

[2]See Kyllo v. United States, 533 U.S. 27 (2001).

[3]Id. at 29.

[4]Id. at 35.

[5]Katz v. United States, 389 U.S. 347 (1967).

[6]Id. at 348.


[8] 533 U.S. at 43

[9] 132 S. Ct. 945 (2012)

[10]Id. at 948



[13]Id. at 950.


[15]Id. at 957 (Alito, J., concurring).

[16]Id. at 964.

[17]Id. at 954 (Sotomayor, J., concurring).

[18] 132 S.Ct. at 963 (Alito, J., concurring).

[19]Id. at 957 (Sotomayor, J., concurring).

[20] Elliott Jones, Fort Pierce Police use Facebook to Make Burglary Arrest, TCPalm (Jan 18, 2013, 10:16 AM),

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