In announcing that it would take up an appeal filed by Shelby County, Ala., the high court is significantly boosting the profile of its current term. The justices have already heard a potential landmark case concerning the constitutionality of race-based affirmative action programs at state universities.
Now the court appears prepared to decide another potential landmark case examining the federal-state balance of power, and whether Congress acted within its constitutional authority in reauthorizing the civil-rights-era law.
The action comes three days after President Obama, the first African-American president, won reelection. And it comes several months after Mr. Obama’s Justice Department used Section 5 of the Voting Rights Act to block newly enacted voter ID laws passed by Republican-controlled legislatures in Texas and South Carolina.
The laws had been patterned on a similar measure in Indiana that was upheld in 2008 by the US Supreme Court.
The Voting Rights Act (VRA) is considered one of the government’s most effective measures to promote and protect civil rights, and is sometimes called the crown jewel of the civil rights movement.
But some state and local governments say it imposes an unfair burden, forcing them to seek special approval from Washington under a regime that holds them accountable in 2012 for a history of discrimination in the 1950s and 1960s that they say has long since been remedied.
Supporters of the law counter that the United States has not yet solved the problem of racial discrimination in voting, and that the law is still needed to prevent backsliding.
The central argument against the law invokes federalism, the constitutionally mandated balance of power between the states and the national government. At issue is whether Sections 4 and 5 of the VRA are an improper intrusion by the federal government into the sovereign power of state and local governments.
Those two sections of the Voting Rights Act rely on Congress’s authority to enforce constitutional protections against racial discrimination in voting and elections. The high court has said such federal enforcement efforts must be "congruent and proportional" to the targeted problem.
Faced with persistent efforts by some jurisdictions in the 1950s and 1960s to systematically deny full voting rights to minorities, lawmakers in Washington decided to take extraordinary action.
The Voting Rights Act of 1965 created a list of state and local governments with particularly egregious records of fostering discrimination in voting. The new law required those on the list to obtain permission from Washington before they could implement any new voting procedures.
Discriminatory procedures were disallowed. Thus, state and local governments that in the past had tried to bypass the Voting Rights Act’s requirement of equal treatment were forced to adopt fair voting procedures.
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.
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.