Election law

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Stohr also noted Kennedy’s skepticism of Section 5, saying the justice chided Congress for relying on a supposedly outdated formula for deciding what states should be covered.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

by Gabriel J. Chin, Professor of Law, University of California Davis School of Law. This post is part of an ACSblog symposium on Shelby County v. Holder.

Tomorrow, the Court will hear argument in Shelby County, Alabama v. Holder, which raises the question of the continuing validity of the preclearance requirement of Section 5 of the Voting Rights Act.

Under Section 5, electoral changes in covered jurisdictions are suspended until the Attorney General or the U.S. District Court for the District of Columbia preclears them by determining that they have neither the purpose nor effect of denying or abridging the right to vote on account of race or color.  The specific issue is whether circumstances in the covered jurisdictions have changed so dramatically that Section 5 is no longer warranted; the Court suggested as much in their 2009 decision in Northwest Austin Municipal Utility District Number One (NAMUDNO) v. Holder. 

I strongly disagree, and believe that a facial challenge is improper because Section 5 is clearly permissible in federal elections.  As important and ominous as Shelby County is, there is a larger question about the Court’s reasoning which has the potential to undermine many other laws and constitutional principles protecting civil rights. 

The Court’s logic in NAMUDNO seems to be this: There was a problem with discrimination against racial minorities at the ballot box, particularly in certain jurisdictions.  Section 5 and other parts of the Voting Rights Act largely fixed that problem.  Because covered jurisdictions are no longer disproportionately proposing electoral rules or districting maps that have the purpose or effect of disadvantaging minority voters, Section 5 may have outlived its usefulness.  Laws must be necessary and proper to solve problems, not non-problems, or former problems. (Many of these facts are doubtful, but I am concerned here primarily with the Court’s logic).