It is recognized as the most powerful and effective civil rights law in American history.
On Wednesday, the high court is set to take up a legal challenge filed on behalf of Alabama’s Shelby County, alleging that Congress overstepped its authority when it voted overwhelmingly in 2006 to reauthorize Section 5 of the Voting Rights Act (VRA) for 25 years.
At issue in the case, Shelby County v. Eric Holder (12-96), is a section of the law that gives the federal government extraordinary power to prevent state and local governments from discriminating against minority voters by undercutting their political clout in elections.
In 1965, when the VRA was first enacted, many states, particularly in the Deep South, were actively working to prevent black and other minority voters from effectively exercising their right to vote. They had done it for decades through threats of violence, poll taxes, and literacy tests.
Congress outlawed those blatant tactics, but the discrimination continued in more creative and subtle ways.
To counter it, Congress enacted Section 5 of the VRA. It required certain jurisdictions with a demonstrated history of discrimination in voting to submit any changes in their voting procedures to the Justice Department or a three-judge panel in Washington for approval before any change could take effect.
The measure required federal officials or judges to examine the changes and determine if they were discriminatory or would otherwise have a detrimental effect on minority voting.
There is no dispute about the effectiveness of the measure. It worked well and continues to work well.
The question now is whether discrimination in voting – nearly 50 years after the 1965 VRA was first passed – continues to be so egregious as to justify the extraordinary measure of requiring certain targeted state and local governments to obtain permission from Washington before they are allowed to alter their own voting procedures.
When it was first passed, Congress authorized the extraordinary measure for five years. It has since been reauthorized four more times, including for 25 years in 1982 before the 25-year extension in 2006. But instead of reevaluating each covered jurisdiction based on whether or not there is contemporary evidence of discrimination, federal lawmakers decided to continue to rely on the original criteria used in the 1960s and 1970s to determine the most egregious jurisdictions in the country.
Many of the covered jurisdictions, Shelby County among them, insist this is unfair.
The central thrust of Shelby County’s argument boils down to one word: federalism.
Those challenging the constitutionality of Section 5 are asking the high court to strike a balance between Congress’s power to fight discrimination and the constitutional requirement that states be treated as co-equal sovereigns.
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.
“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.