Guest Post

by Deborah N. Archer, Associate Dean for Academic Affairs and Professor of Law, New York Law School. This post is part of an ACSblog symposium on Shelby County v. Holder.

No law has been more critical in advancing voting rights for all Americans than the Voting Rights Act of 1965. When Congress first enacted the Voting Rights Act, it concluded that case-by-case litigation had been wholly ineffective in guaranteeing African-Americans the right to vote and that nothing short of a prophylactic remedial scheme would succeed in eradicating the “insidious and pervasive evil which had been perpetuated in certain parts of our country.” (South Carolina v. Katzenbach, 383 U.S. 301, 309 (1966).) The heart of the Voting Rights Act – the strong medicine that has done so much to protect the voting rights acts of people of color – is Section 5, which prohibits covered jurisdictions from implementing new voting standards, practices or procedures unless the proposed change has been “pre-cleared” by the Department of Justice or the United States District Court for the District of Columbia. (42 U.S.C. §1973(c)(a)) The law places the burden on those covered jurisdictions to prove that any proposed changes will not limit minority voting rights.

From the moment Section 5 was first enacted, jurisdictions that fell within its purview depicted the legislation as an illegitimate intrusion by an all-powerful federal government on state and local sovereignty. In Shelby County v. Holder, Shelby County insists that the Act’s pre-clearance provisions are no longer neededbecause the Act has succeeded in doing so much good, and that covered jurisdictions now should be relieved from the “burdens” of pre-clearance. Never mind that as recently as 2008 Shelby County itself was found to have engaged in racially discriminatory conduct. The truth is that across the country, states, cities and counties continue to enact practices and procedures that suppress, dilute, and infringe upon minorities’ constitutional right to vote. The harms that Section 5 was designed to counter remain, making the law as critical as it has ever been.

by Spencer Overton, Professor of Law at The George Washington University Law School and author of the book Stealing Democracy: The New Politics of Voter Suppression. This post is part of an ACSblog symposium on Shelby County v. Holder.

Many who assert the U.S. Supreme Court in Shelby County v. Holder should uphold the preclearance and coverage provisions of Section 5 of the Voting Rights Act disagree with the Court’s 2008 decision in Crawford v. Marion County Bd. of Elections that upheld Indiana’s photo identification requirement.  On the other hand, those who oppose Section 5 cite Crawford as a reason Section 5 is allegedly unconstitutional. 

An honest reading of Crawford, however, provides five reasons the Court should now defer to Congress’s determinations regarding the coverage and preclearance provisions of Section 5. 

1.  Legal Issue:  In Crawford, the U.S. Supreme Court ruled that the Indiana ID requirement did not unconstitutionally burden the right to vote (the Court did not address whether ID discriminated on the basis of race).  The plaintiff in Shelby County seeks to undermine Congress’s authority under the 14^th and 15^th Amendments by making the novel claim that the coverage provision violates a “principle of state equality” -- but the U.S. Constitution contains no such requirement. 

2.  Record:  In Crawford, the U.S. Supreme Court deferred to Indiana’s interest in preventing fraud despite the fact “[t]he record contain[ed] no evidence of any such fraud actually occurring in Indiana at any time in its history.”  In Shelby County v. Holder, the Court should defer to a 2006 Congressional reauthorization process that featured 21 hearings, over 90 witnesses, and a 15,000-page record that showed that contemporary voting discrimination remains concentrated in covered states.  For example, Congress found that the Justice Department lodged over 700 objections to voting changes enacted by covered jurisdictions since Congress previously reauthorized Section 5 in 1982.  Congress also considered the “Katz Study,” which showed that covered jurisdictions account for less than 25 percent of the nation’s population but 56 percent of the successful published Section 2 voting rights cases.  The percentage of documented elections with extreme white bloc voting was 80.7 percent in covered jurisdictions, compared to 40.9 percent in uncovered jurisdictions.