Supreme Court to rule on scope of federal powers in Voting Rights Act case
A landmark civil-rights-era law will come before the US Supreme Court later this year, when the justices will consider if Congress was out of bounds in renewing a part of the Voting Rights Act.
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Much has changed in the US since the 1950s and 1960s, both socially and demographically. The question now is whether those same powerful federal controls deemed necessary to end blatant Jim Crow-era discrimination remain an appropriate use of federal power 40 to 50 years later.Skip to next paragraph
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The initial VRA enforcement procedures expired after five years. Congress renewed the enforcement regime in 1970, 1975, and 1982. The most recent renewal came in 2006, when Congress extended the procedures for 25 years.
Although Congress voted to extend the regime four times, no effort has been made to update the list of covered jurisdictions from lists assembled in the 1960s and 1970s.
Opponents say if Congress wants to use its extraordinary power to enforce the Voting Rights Act it must do so in a more targeted fashion, by carefully identifying those jurisdictions that engage in the most egregious discrimination today, not 40 years ago.
The Supreme Court last considered a Voting Rights Act case in 2009, when the law was challenged by a utility district near Austin, Texas. Despite widespread anticipation that the VRA might be struck down at that time, the court declined to address the broader constitutional issues.
Instead, the justices upheld the VRA because, the court said, the Texas utility district could apply for an exemption from its preclearance requirements.
Nonetheless, the justices teed up the constitutional issue for a future case, proclaiming in their decision that aspects of the VRA “raise serious constitutional questions.” The court invited Congress to address its concerns.
Congress has not taken up that invitation.
“Congress has shown no interest in revisiting these issues,” wrote Washington lawyer Bert Rein in his brief urging the justices to hear the Shelby County case. “Section 5 will foreclose the implementation of more than 100,000 electoral changes (more than 99 percent of which will be noncontroversial) unless and until they are precleared by federal officials in Washington, D.C.,” wrote Mr. Rein.
“Because of this prior restraint, a covered jurisdiction must either go hat in hand to [Justice Department] officialdom to seek approval, or embark on expensive litigation in a remote judicial venue if it wishes to make any change to its election system,” he said.
“These constitutional challenges arise, in significant part, in response to the [Justice Department’s] needlessly aggressive exercise of preclearance authority,” Rein said. “For example, DOJ has refused to preclear the Texas and South Carolina voter identification laws notwithstanding [a 2008 US Supreme Court decision upholding a similar voter ID law in Indiana].”
The Obama administration urged the court not to take up the case. Solicitor General Donald Verrilli said the Shelby County case had been correctly decided by the federal appeals court and that no further review was necessary.
“With regard to the latest reauthorization in 2006,” Mr. Verrilli wrote, “the court of appeals correctly applied settled legal principles in reviewing the 15,000-page legislative record, determining that Congress correctly identified a pervasive constitutional problem.”
He added that Congress’s reauthorization was a congruent and proportional means of enforcing constitutional protections.
The case is Shelby County, Ala. v. Holder (12-96). It will likely be set for argument in late winter or early spring.