Signed into law by President Lyndon B. Johnson, the Voting Rights Act of 1965 was a defining advancement in the fight towards equality, ensuring that minority voters were no longer disenfranchised at the voting booth. Fifty years after the landmark legislation, however, the “triumph for freedom” faces legal challenges as the Supreme Court will hear arguments in Shelby County v. Holder. Tweet it: Tweet
At the forefront of this case is the constitutionality of Congress’ 2006 decision to reauthorize Section 5 of the Voting Rights Act (VRA). Section 5 of the landmark civil rights legislation requires states with a history of discrimination to obtain clearance by the Department of Justice before altering election laws in certain counties.
The 2006 Reauthorization of Section 5
The decision to reauthorize Section 5 came at the heals of twenty-one hearings and over ninety witness testimonies, resulting in over 1,500 pages of records. Articulated by Spencer Overton, a Professor of Law at George Washington University Law School:
“Congress did not simply rely on the existing coverage formula, but instead was guided by the extensive evidentiary record that showed contemporary discrimination in voting remains concentrated in covered jurisdictions.”
The House passed the 25-year extension with a 390 to 33 vote. The Senate also voted in favor of reauthorization, 98-0. Share the news: Tweet
Arguments Against Section 5
Criticism of Section 5 is rooted in arguments for federalism. Opponents categorize Section 5 as dated legislation and while it once served a purpose, it is now an unnecessary infringement on state sovereignty.
This is not the first time Section 5 has faced the scrutiny of the highest court in America. In 2009, the preclearance procedure withstood constitutional hearings in the case Northwest Austin Municipal Utility District No. 1 v. Holder, but not without a fight.
Warning Congress of the potential threat of Section 5 to self-governance, the Supreme Court majority opinion, written by Chief Justice John Roberts, warned that Section 5 “imposes current burdens and must be justified by current needs.” Tweet it: Tweet
Shelby County, Alabama will make the case that current needs do not justify current burdens, citing increased minority voting and decreased discrimination in the voting booth to make the case that state specific clearances are not only deeply intrusive, but unconstitutional.
Arguments against Section 5 should not be confused with attempts to dismantle the Voting Rights Act of 1965. While Congress has significant power to limit discrimination, this power is not indefinite.
In this case, Shelby County argues that, “absent extraordinary constitutional violations, like on-going egregious discrimination by certain state and local governments, Congress must respect the equal sovereignty of the states.” Share quote: Tweet
While the court called on Congress to update Section 5 of the VRA based on “current needs,” no action was taken by Congress, further validating claims that the law is outdated.
Arguments For Section 5
U.S. Solicitor General Donald B. Verrilli, Jr will defend the law on behalf of the federal government while Debo P. Adegbile, an attorney with the NAACP Legal Defense Fund in New York City, will speak on behalf of individual voters.
While classrooms are no longer segregated and minorities are no longer forced to the back of the bus, Americans are far from living in a colorblind society. Poll taxes and literacy tests have been replaced with voter ID laws and redistricting efforts. Last year alone, Section 5 of the Voting Rights Act blocked voter ID laws that would adversely affect minority participation in elections in two of the sixteen states requiring clearances. Tweet at the Department of Justice: Tweet
In 2011, the U.S. Department of Justice blocked Texas redistricting maps “on the grounds that the plans reduced minority political strength and that the Congressional and Senate plans were purposefully discriminatory on the basis of race.”
Vice President of Litigation for MALDEF, the Mexican-American Legal Defense and Educational Fund, Nina Perales, speaks to the importance of Section 5 for Latino voters:
“Section 5 has played a central role in protecting Latino voters from the backsliding and gamesmanship that characterize the voting laws of many jurisdictions in which Latinos live. The decision this Term in Shelby County, Alabama v. Holder will be critical to the ability of the growing Latino electorate to participate on an “equal basis in the government under which they live.” Tweet quote: Tweet
Tasked with the challenge of balancing minority and state rights, the Supreme Court’s decision in Shelby County v. Holder will likely define the electoral process for years to come. A decision is expected to be handed down by late June.