by Jeremy Leaming
In 2006 when Congress overwhelmingly reauthorized Section 5, the major enforcement provision of the Voting Rights Act, it did so “at the height of its powers in regulating the intersecting areas of voting, race, and political rights,” a bipartisan group of congressmen state in a brief lodged in Shelby County v. Holder.
On Feb. 27, the U.S. Supreme Court will hear oral argument in the Shelby County case. Section 5 requires certain states and localities with deep histories of racial discrimination in voting to obtain “preclearance” from the Department of Justice or a federal court in Washington, D.C. before making changes to voting procedures. Officials in Shelby County, Ala., lodged the lawsuit arguing that Section 5 is no longer needed. The officials, with the support of the state’s attorney general, argue that racial discrimination in voting is largely a thing of the past and therefore state officials should not need the federal government’s approval of changes to voting procedures.
As noted on this blog, the NAACP Legal Defense & Educational Fund (LDF), representing some voters in Alabama, is battling those claims in defense of the landmark law. (Other civil liberties groups are also urging the Supreme Court to uphold Section 5. To see some briefs and more information about the VRA, visit ACS’s Voting Rights Act Resource Page.)
The friend-of-the-court brief filed on behalf of Reps. F. James Sensenbrenner Jr. (R-Wis.), John Conyers Jr. (D-Mich.), Jerrold Nadler (D-N.Y.), Steve Chabot (R-Ohio), Robert C. “Bobby” Scott (D-V.A.) and Melvin Watt (D-N.C.), also urges the high court to show judicial restraint and uphold Section 5. The group of House Judiciary Committee members served as leadership during the 2006 reauthorization of Section 5. The group details the process of creating a voluminous congressional record that supported the ongoing need for the VRA’s Section 5.
Rep. Sensenbrenner in a press statement announcing the brief called the VRA “the crown jewel of the civil rights laws” that should be “ardently” defended. Rep. Conyers said Section 5 “remains critical to enforcing the constitutional rights of all voters, especially for voters in jurisdictions with a history of discrimination.”
The group’s brief provides some examples of the evidence uncovered during the 2006 reauthorization process. (The authors of the brief note that the brief could not possibly detail all the evidence amassed in the congressional record.) Officials in a Georgia county sought to move a polling place from a county courthouse to a private entity “which had a well-known reputation for racial hostility and exclusion.” Officials in Louisiana in 1994 also sought to move a polling station to an infamous site of racial discrimination. In 2003 officials in Texas moved to limit early voting at a polling site near a historically black college. The brief provides many other examples of underhanded efforts to evade Section 5 and dissuade minority voters from participating in democracy.
The 2006 record for reauthorization “left no doubt that widespread voting discrimination persists in covered jurisdictions” and that Congress needed to respond.
The federal courts, the brief explains, have recognized the constitutional powers of Congress to enforce the VRA. (The 14th and 15th Amendments, in particular, charge Congress with protecting liberty and prohibiting racial discrimination in voting.) The brief says that the high court “has recognized that, as with protecting members of traditionally suspect classes, Congress’s powers are at their greatest when it acts to safeguard fundamental liberties,” and “the right to vote is the quintessential fundamental right; indeed, the right to participate in the electoral process is a foundational right ‘preservative of all [other] rights.’”
In their the brief, the representatives urge the high court to show deference to the legislative branch, to recognize it is uniquely suited to discover the effects of racial discrimination in voting and determine the proper response.