Shelby County Challenges Preclearance Provision of Voting Rights Act

By Jim McLeod, Junior Editor

            The Supreme Court recently heard oral arguments in Shelby County v. Holder, a case involving a constitutional challenge to a provision of the Voting Rights Act of 1965 requiring federal preclearance of changes in certain states’ voting laws.  Section 5 of the Act requires that an attempt to change “any voting qualification or prerequisite to voting, or standard, practice, or procedure with respect to voting” in any “covered jurisdiction” receive “preclearance” by an administrative ruling of the Department of Justice or a declaratory judgment from the United States District Court for the District of Columbia. 

            The provision is targeted at preventing racial discrimination at the polls in certain states – Alabama, Alaska, Arizona, Georgia Louisiana, Mississippi, South Carolina, Texas and Virginia – and a few counties in other states with a history of discriminating against minorities in elections.  Voting practices that have raised red flags include administering literacy tests as a prerequisite for voting privileges, refusing to offer multilingual ballots, and redistricting to reduce minority influence.  Also, states and counties that in which less than half of the eligible minority populations are registered to vote are subject to federal preapproval when attempting to implement changes in voting procedures.  The Act has been renewed and amended by Congress several times, including the recent 25-year extension by the Bush administration in 2006.

            In April 2010, Shelby County, Alabama filed suit in the United States District Court for the District of Columbia, alleging that Congress exceeded its constitutional authority in renewing Section 5 in 2006.  The court upheld the constitutionality of the Act, and was affirmed by the U.S. Court of Appeals for the D.C. Circuit, giving deference to Congress’ conclusion that there continues to be a need for the preclearance requirement.  The Supreme Court granted certiorari, limiting the issue to whether Congress exceeded its authority in reauthorizing Section 5 of the Voting Rights Act in 2006, and heard oral arguments on February 27, 2013. 

            Bert Rein, attorney for Shelby County, argued that the Act should no longer apply to the state because there is sufficient evidence that minorities are fairly represented at the polls.  In response, Justice Breyer offered that the Voting Rights Act serves as a check on discriminatory voting practices, and Alabama’s good record is only evidence that the law is working and should be kept in effect.  Justice Sotomayor observed that Shelby County was sued by the Justice Department in 2008 for using large voting districts to make it difficult for minority groups to elect members to city councils – “[S]ome parts of the South have changed.  Your country pretty much hasn’t.  You may be the wrong party bringing this suit.”

            Rein also argued that Section 5 of the Voting Rights Act contradicts the constitutional principle of equal application of the law, as it singles out certain states and counties for federal scrutiny and hasn’t changed the criteria for determining which states must receive preclearance.  Justice Kennedy, often the swing vote, seemed to side with Shelby County, saying that the rigid formula used to determine which states require preclearance may have worked well in 1965, but may be unnecessary in 2013. 

            Justice Scalia suggested that the continued renewal of Section 5 of the Voting Rights Act demonstrates the “perpetuation of racial entitlement,” asserting that lawmakers have only continued to renew the law because there is no political advantage in voting against it.  “Whenever a society adopts racial entitlements, it is very difficult to get out of them through the normal political processes,” Scalia offered during oral argument.  “Even the name of it is wonderful, the Voting Rights Act.  Who’s going to vote against that?” Scalia asked. 

            Texas has also appealed a federal court ruling that the state discriminated against minorities with new redistricting maps.  Justices have not yet selected the case for review and some argue that they may hold the case until the Shelby County case is decided this summer, as both consider the issue of whether Section 5 of the Voting Rights Act is unconstitutional and no longer needed. 

            Many believe that the Court’s remarks during oral argument suggest that Section 5 will likely be removed from the Voting Rights Act, and even President Obama, in a local television interview, seemed to be preparing people for the provision to be struck: “People will still have the same rights no to be discriminated against when it comes to voting.  You just won’t have this mechanism, this tool, that allows you to kind of stay ahead of certain practices.”


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