Voting Rights Act of 1965

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 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).