by Justin Levitt. Professor Levitt, on loan from Loyola Law School, Los Angeles, is a visiting associate professor of law at Yale Law School. He focuses on constitutional law and the law of the political process. This post is part of an ACSblog symposium on Shelby County v. Holder.
On Wednesday, the Supreme Court will hear Shelby County v. Holder, a challenge to part of the Voting Rights Act. The case touches on enormously important, vigorously contested, issues: federalism, race, voting rights, political power, Congressional authority. Amidst all of this big stuff, the Court must make sure it keeps its eye on the heart of the case.
The fight is about a particular part of the Voting Rights Act, with special rules for much of the South (and a few other jurisdictions). It requires these states (and counties, and towns) to run any election-related changes by the Department of Justice or a federal court, to make sure that the changes won’t leave minorities politically worse off.
The process of DOJ or court review is called “preclearance” – and in 1966, and again in 1980, the Supreme Court firmly validated the concept for the parts of the country with the most troubled voting rights history. Preclearance is special medicine, which the Court has already approved for the sickest patients.
In 2006, Congress essentially renewed the prescription as is. And the plaintiffs now challenging the law say that the patient list is out of date. It’s a 1965 take, they say, on a 21st century world: the list is no longer sufficiently tailored to where the problems are.
So who is on the list, needing federal approval for new election rules? It starts with a formula: areas where less than half of the eligible population registered or voted in the presidential elections of the 60s. These are the parts of the country where democracy was broken. We talk about majority rule: in these areas, a majority wasn’t even able to participate.
Shelby County, Alabama, was on the list in the 60s. And it’s still on the list now. But that doesn’t mean the list is static. Quite the contrary: change was built into coverage from the get-go.