Analysis Law and Policy

SCOTUS Looks Ready To Gut Voting Rights Act

Jessica Mason Pieklo

In granting review of Shelby Co. v. Holder the Roberts Court sent signals the Voting Rights Act is in real trouble.

Just three days after an election in which right-wing efforts to restrict voting access came under increasing scrutiny, the Roberts Court agreed to rule on a challenge to Congress’s power to protect minority groups’ rights at the polls.

The Court said it would hear arguments from Shelby County, Alabama that Congress went beyond its authority when it extended, for another 25 years, the nation’s most important civil rights law, the Voting Rights Act. Originally passed in 1965 and renewed four times since then, the Voting Rights Act remains a key legislative tool in battling entrenched systemic racial discrimination in the electoral process. And as we’ve seen in this last election where minority voters in places like Virginia, Florida, and Ohio waited in line for upwards of 5 hours before casting a vote, the VRA remains more relevant than ever.

Specially at issue is the constitutionality of the law’s Section 5, the laws most important and powerful provision. Section 5 places nine states and parts of seven other states with a past history of racial bias in voting under federal jurisdiction in administering elections. Those jurisdictions covered by Section 5 must get official clearance in Washington before they may put into effect any change in election laws or procedures, no matter how small.   The Court came close to striking down that section three years ago, but instead sent Congress clear signals that it should update the law so that it reflects more recent conditions, especially in the South. In response, Congress did nothing.

In granting review, the Court limited its inquiry to a question of its own creation: 

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”Whether Congress’ decision in 2006 to reauthorize Section 5 of the Voting Rights Act under the pre-existing coverage formula of Section 4(b) of the Voting Rights Act exceeded its authority under the Fourteenth and Fifteenth Amendments and thus violated the Tenth Amendment and Article IV of the United States Constitution.”  

It’s a constitutional mouthful, but boils down to whether or not the Reconstruction Amendments that protect voting rights and provide for equal protection and due process under state law for all citizens still authorize Congress to dictate how some states run their elections.

Voting rights activists have been braced for this review for years now. The Court last examined a constitutional challenge to Section 5 of the Voting Rights Act in the 2009 case of Northwest Austin Municipal Utility District v. Holder.  There, the Court avoided a ruling on Section 5’s constitutionality but, in an opinion written by Chief Justice Roberts, was sharply critical of Congress for having failed to make coverage depend upon more recent experience in voting patterns, especially in the covered states.  The opinion said that the law imposed special burdens on the covered states and local governments, and that those burdens had to be justified by current needs, not by out-of-date history.

Congress paid no attention to Roberts’ scolding, but Section 5 covered states and local governments definitely did and began a round of new challenges, leading to this most recent review.

The case the court will review involves Shelby County, part of the metropolitan complex of Birmingham, Ala., with a population of about 200,000, of which 85 percent is white.  Because it is in Alabama, a state whose entire breadth is covered by Section 5, Shelby County also must get clearance in Washington before it may change any of its voting laws or procedures.

But this is where it gets really interesting. Shelby County did not seek Washington approval for any voting change, but instead, noting the skepticism of the Supreme Court in the 2009 opinion went to court in Washington with a plea to strike down Section 5 as written.  It lost in both the District Court and in the D.C. Circuit Court, then took its case on to the Supreme Court.

Shelby County’s lawyers argued that a state or local government covered by the law “must either go hat in hand to Justice Department officialdom to seek approval, or embark on expensive litigation in a remote judicial venue.” Shelby County told the Supreme Court in their filings that the Justice Department in the Obama Administration has engaged in increasingly aggressive enforcement of Section 5 and that current demographics no longer support this enforcement.  

The case asks the Court to strike down Section 5 as it is written which means a decision which went that far would mean that Section 5 could no longer be enforced against any state, county, or city. As far as challenges to civil rights laws goes, this one shoots for the moon. The real question now is just how far is the Roberts court willing to go in rolling back those protections? 

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