by Jeremy Leaming
The opponents of the landmark Voting Rights Act have argued for years now that it is outdated – racial discrimination in voting is not really a problem, a thing of the past – and an unconstitutional infringement on state sovereignty.
And the opponents have come close to convincing the U.S. Supreme Court to agree with them. In 2009 the conservative wing of the Supreme Court in Northwest Austin Municipal Utility District Number One v. Holder did not gut the VRA, but strongly hinted it may be inclined to weaken or ditch the VRA’s major enforcement provision, Section 5.
Now opponents, this time from a largely white county in Alabama, are back gunning to greatly hinder if not scuttle the VRA, specifically by weakening or scrapping Section 5. That section requires certain states and localities with long histories of discriminating against voters because of race to obtain “preclearance” of proposed changes to their voting procedures from a federal court or the Department of Justice. During the 2012 elections the Department of Justice employed Section 5 to successfully shut down actions aimed at suppressing the votes of minorities. On Feb. 27, the Supreme Court will hear oral argument in Shelby County v. Holder, offering the court another chance to strike or greatly weaken Section 5. (See ACS’s Voting Rights Resources page for more detail about the VRA and the Shelby County case.)
The NAACP Legal Defense & Educational Fund, representing some Alabama voters, argue that in 2006 Congress justifiably reauthorized Section 5 for another 25 years, creating a voluminous record that revealed, among other things, that racial discrimination in voting is no relic. A bipartisan group of House Judiciary lawmakers who helped advance the 2006 reauthorization has lodged an amicus or friend-of-the-court brief with the Supreme Court urging it to show deference to the legislative branch and keep Section 5 viable.
As The Atlantic’s Andrew Cohen notes, there are a “remarkable” number of amicus briefs for the justices to wade through, and he highlights several of them, including one filed by the Brennan Center for Justice.
The Brennan Center, long a defender of the VRA, also lodged a brief in the 2009 case. The group’s Shelby County brief provides the backdrop for Congress’s work to enfranchise formerly enslaved black Americans, the tenuous nature of protecting the right to vote for minorities, and the continued need for Congress to use appropriate tools, like preclearance of the VRA, to ensure that the right to vote is not trampled by powerful and corrupt interests bent on keeping African Americans and other minorities away from the polls. A resounding message to the justices, from the Brennan Center’s brief, is that great strides forward are often met with great resistance and that those accomplishments advancing equality can be rolled back.