Bloody Sunday

  • February 26, 2013
    Guest Post


    by Steven D. Schwinn, associate professor of law at the John Marshall Law School in Chicago and an editor of the Constitutional Law Prof Blog. This post is part of an ACSblog symposium on Shelby County v. Holder.

    When the Supreme Court takes up the Voting Rights Act case this week, Shelby County v. Holder, the Justices will focus on this question: Whether Congress had authority under the Fourteenth and Fifteenth Amendments to require certain jurisdictions to gain federal preclearance before making any changes to their election laws.  But lurking in the background of the Question Presented is a curious nod to federalism.  Thus the Court will ask if Congress exceeded its authority, then did it violate the Tenth Amendment and Article IV—provisions that, according to the petitioner, protect states’ rights.

    We might wonder where this federalism concern comes from.  After all, neither the Tenth Amendment nor Article IV limits federal authority because of states’ rights.  Neither provision says anything about the substantive scope of federal authority; and neither provision obviously grants a claim of states’ rights.  Instead, they simply outline the necessary relationship between the federal government and the states in a federal system like ours.  These provisions are, at most, a blueprint for federalism.  They add nothing to the core question of congressional authority, the real issue in the case.

  • February 26, 2013
    Guest Post


    by Gilda R. Daniels, Associate Professor at the University of Baltimore School of Law and former Deputy Chief of the United States Department of Justice, Voting Section. This post is part of an ACSblog symposium on Shelby County v. Holder.

    It would certainly be ironic if Alabama, the state that gave us the Voting Rights Act in 1965 because of its opposition to providing African American citizens the ability to register and vote, would also serve as the state that would end a key part of the Act.  It could happen.  It shouldn’t, if the Supreme Court recognizes the significance of ensuring that history does not repeat itself.

    On February 27, the United States Supreme Court will hear Shelby County, Alabama v. Holder, a challenge to Section 5 of the Voting Rights Act.  The Voting Rights Acthas two primary provisions: Section 2 is permanent and prohibits race discrimination in voting and Section 5, which is one of the temporary provisions, requires periodic Congressional reauthorization.   What Section 5 does is very important.  It is both prophylactic and preventative and requires “covered jurisdictions” to “preclear” voting changes before they can implement them.  These changes can range from a redistricting to the mundane moving of a polling place across the street.  Regardless, the VRA requires the jurisdiction to submit the change to either the Attorney General of the United States or the United States District Court for the District of Columbia for approval prior to implementation. Alabama is one of the originally covered Section 5 jurisdictions.

    In March 1965, more than 600 marchers embarked on a journey to walk from Selma to Montgomery, Alabama to spotlight the belligerence and entrenchment of voting disenfranchisement for African Americans.  On Sunday, March 7, the marchers barely reached the Edmund Pettus Bridge before law enforcement officials beat and tear gassed the young people and children who bravely attempted the march.   After “Bloody Sunday,” Congress passed the Voting Rights Act of 1965 to address the widespread state sponsored shenanigans surrounding the right to vote, such as,  poll taxes, literacy tests, closure of registration sites, acts and threats of violence surrounding voter registration and participation that remained rampant throughout much of the country,  especially in the South.   President Lyndon B. Johnson proclaimed the Voting Rights Act of 1965, “one of the most monumental laws in the entirehistory of American freedom.”   In August 1965, less than five months after the Edmund Pettus incident, he signed the Voting Rights Act.