Voting Rights Act: Is major portion outdated? Supreme Court to hear arguments.
Section 5 of the Voting Rights Act requires some state and local governments to obtain federal clearance for changes in voting procedures. In 2008 the Supreme Court said the section needed updating.
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Congress has significant power to fight discrimination and fashion remedies, but that power is not unlimited, they argue. The Constitution assigns sovereign power to both the federal and state governments. Absent extraordinary constitutional violations, like on-going egregious discrimination by certain state and local governments, Congress must respect the equal sovereignty of the states, they say.Skip to next paragraph
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“The Voting Rights Act of 1965 changed the course of history in the covered jurisdictions,” Washington lawyer Bert Rein conceded in his brief filed on behalf of Shelby County.
“But the record before Congress in 2006 bears little resemblance to the record that led the Court to uphold Section 5’s sweeping prophylactic remedy (against earlier legal challenges),” Mr. Rein wrote.
Civil rights groups and the Obama administration agree that discrimination is not as blatant today as it was in the 1960s and 1970s, but they insist the pre-approval process is still justified and that any effort to remove it will harm minority voters.
Since 1982, almost 2,400 discriminatory voting changes were blocked as a result of 750 objections raised under the authority of Section 5, they say.
“Without Section 5, the only way to challenge those voting changes would have been through case-by-case litigation, a system that would have resulted in years of discriminatory treatment of minority voters and required an enormous expenditure by all sides,” Solicitor General Donald Verrilli wrote in his brief to the court.
He added: “Congress reasonably determined that there remains an unacceptable degree of discrimination against minority voters in covered jurisdictions, and that [the other remaining section of the VRA] alone would afford an inadequate remedy in those jurisdictions.”
The issue is not new. The high court upheld the constitutionality of the VRA in 1966 and 1980. And in 2008, the justices again upheld the statute, but in doing so they identified what the court called “serious constitutional questions” about Congress’s 2006 reauthorization.
The court issued a warning to Congress that Section 5 of the VRA needed to be updated. The court said that “current burdens” imposed on the states under Section 5 must be justified by “current needs.”
It was an invitation for lawmakers to consider the court’s concerns and address them.
Congress took no action. Nor did the administration.
Instead, the Justice Department under President Obama has aggressively wielded its power under Section 5 in ways that critics say sought partisan advantage in the run-up to the president’s 2012 bid for reelection.
For example, critics complained that the Justice Department used its Section 5 authority to oppose new voter ID laws passed in Texas and South Carolina, even though the Supreme Court had earlier upheld a similar voter ID law in Indiana. Texas and South Carolina are both covered states under Section 5 of the VRA; Indiana is not.
In a speech, Attorney General Eric Holder denounced voter ID laws as the modern version of a poll tax – a measure designed to suppress and disenfranchise black voters.
Both the Texas and South Carolina voter ID laws were passed in the spring of 2011. The Justice Department action forced both states to engage in substantial and expensive litigation. And it prevented the measures from taking effect prior to the 2012 election.
Supporters of Section 5 cite the Justice Department action in Texas and South Carolina, as well as challenges to Texas redistricting plans, as prime examples of how the VRA can prevent some states from turning back the clock on minority voting rights.
A decision in the case is expected by late June.