Democracy and Voting

by Jeremy Leaming

A party bent on pushing economic policies that did not win the day during the 2012 elections and is beholden in general to a Tea Party antigovernment agenda is now signaling it has no concern if one of the nation’s greatest civil rights laws is gutted by the Supreme Court in Shelby County v. Holder.

The Huffington Post reports that “a sampling of Senate Republicans” finds that many “are just as ready as he [Justice Antonin Scalia) is to toss the heart of the Voting Rights Act, its Section 5, which prevents states with a history of racial discrimination from altering their voting laws without federal approval.”

Although apparently difficult for the sampled senators to respond to the question, many said that "Section 5’s time has come and gone, and that Southern states should be treated no differently than then the rest of the nation.”

Senate Minority Whip John Conyer (R-Texas), The Post continued, said there should be no covered states or that all states should “not be treated differently.”

The high court’s right-wing bloc did show through some of its questioning during oral argument in Shelby County its hostility to Section 5, even in the face of vast evidence provided in voluminous briefs before the court that some states, such as Alabama, have a far higher percentage of successful challenges to claims of racial discrimination in voting.

by Jeremy Leaming

The U.S. Supreme Court’s right-wing bloc appears ready to seriously weaken the integral enforcement provision of the Voting Rights Act of 1965.

During oral argument in Shelby County v. Holder, all of the court’s conservative justices as SCOTUSblog publisher Tom Goldstein reported appeared “committed to invalidating Section 5 of the Voting Rights Act and requiring Congress to revisit the formula for requiring preclearance of voting changes.” (Section 5 requires certain states and towns, mostly in the South, to obtain “preclearance” for any changes to their voting laws and procedures to ensure they do not harm minority voters.)

The New York Times’ Adam Liptak in a piece on today’s oral argument noted that Justice Anthony Kennedy asked attorneys arguing in favor of Section 5, how much longer states like Alabama must live “under the trusteeship of the United States government.” Liptak also noted that Justice Antonin Scalia took a shot at Section 5 saying it produces a “perpetuation of racial entitlement.” The Huffington Post's Ryan J. Reilly expounded on Scalia's commentary, noting that the justice flippantly said Congress reauthorized the Voting Rights Act in 2006 because, who could vote against a bill with  such a "wonderful" name.

Bloomberg’s Greg Stohr also noted Kennedy’s skepticism of Section 5, saying the justice chided Congress for relying on a supposedly outdated formula for deciding what states should be covered.

Chief Justice John Roberts asked U.S. Solicitor General Donald Verrilli whether the Obama administration believes people in the South “are more racist than citizens in the North.” The Associated Press reported that Verrilli said no.

As Liptak noted in a piece earlier this morning, it has long been clear that the Court’s conservative wing views with great skepticism the formula Congress has used in determining what states should be covered by Section 5. He noted the 2009 opinion in Northwest Austin Municipal Utility District v. Holder, in which Roberts said Congress should revisit the formula. Congress, however, took no action. Liptak continued that the conservative justices “could stop short of striking down Section 5 itself.” Instead, Liptak said the high court could call for an end to the use of the formula, meaning Congress would need to revise it for “preclearance” to continue to be useful. (During the 2012 elections cycle, Section 5 was used by the Department of Justice to halt potentially discriminatory voting procedures from taking effect in several of the covered jurisdictions, such as Texas, Florida and South Carolina.)

Goldstein also wrote that it appears “unlikely that the Court will write an opinion forbidding a preclearance regime. But it may be difficult politically for Congress to enact a new measure.”

Supporters of Section 5 argued in a slew of briefs before the high court that Congress via the 14th and 15th Amendments has great discretion in crafting proper legislation to ensure that states do not violate the rights of minorities, including particularly the right to ensure states do not discriminate in voting. It appeared during oral argument that the court’s five right-wing justices believed Congress has not done its job properly.

ACS President Caroline Fredrickson said, “With so many recent efforts to suppress the vote, it should be clear that the law remains relevant and necessary. This Court should refrain from deciding unilaterally that Congress has completed its job of ensuring the promise of the 14th and 15th Amendments.”