by Jeremy Leaming
Once again the U.S. Supreme Court will grapple with the constitutionality of Section 5, the strongest enforcement provision of the landmark Voting Rights Act of 1965, when Alabama officials take to the high court on Feb. 27 to argue that the provision is outdated and subverts state sovereignty.
Noted in this post, groups arguing in favor of Section 5 say Alabama officials ignore persistent violations of Section 5 in trying to persuade a Court controlled by a right-wing majority that it is now time to do away with the law’s integral enforcement measure. Several of the groups point out that as early as 2010 officials in Shelby County, Ala., a largely white enclave outside Birmingham, were working to alter voting districts to dilute the minority vote. Section 5 applies to several states and municipalities, mostly in the South, with intense histories of racial discrimination in voting. It requires those jurisdictions to obtain “preclearance” from the Department of Justice or a federal court in Washington before making any changes to their voting rules and procedures.
But since its enactment in 1965 a string of covered jurisdictions has lodged lawsuits against Section 5. As noted by David H. Gans and Elizabeth B. Wydra in a new ACS Issue Brief on the case, Shelby County v. Holder, the Supreme Court has upheld the constitutionality of Section 5 on four occasions – 1966, 1973, 1980, and 1999 – “recognizing that the Act falls squarely within congressional power to enforce the constitutional ban on racial discrimination in voting.”
Several other groups have lodged friend-of-the-court briefs with the Supreme Court providing recent examples of racial discrimination in voting in the covered jurisdictions and arguing that Section 5 is an appropriate congressional action to enforce the promise of both the Fourteenth and Fifteenth Amendments. (The Fourteenth Amendment bars states from depriving people of liberty and the Fifteenth Amendment prohibits states from discriminating against voters because of their race.)
During a recent ACS panel discussion on the Shelby County case Armand Derfner, a renowned attorney who has argued on behalf of voters in the covered jurisdictions against racial discrimination in voting, dismissed arguments that Section 5 has outlived its usefulness. (Video of the discussion is here.)