The US Supreme Court has set February 27 for oral argument in Shelby County v. Holder dealing with Congress’ reauthorization of Section 5 of the Voting Rights Act of 1965. Almost 50 years ago, Congress enacted the VRA to prevent state and local governments from adopting any new election laws aimed at keeping minorities from voting until they could prove that those laws would not discriminate. The issue before the Court is “Whether Congress’ decision in 2006 to reauthorize Section 5 of the Voting Rights Act under the pre-existing coverage formula of Section 4(b) of the Voting Rights Act exceeded its authority under the Fifteenth Amendment and thus violated the Tenth Amendment and Article IV of the United States Constitution.”
In Northwest Austin Municipal Utility Dist. No. One v. Holder, 557 U.S. 193 (2009), the Court ruled that political subdivisions may seek relief from the Voting Rights Act’s preclearance obligations noting that “Things have changed in the South.” It considered striking down Section 5, the key part of the 1965 law, on the theory that “the evil that Section 5 is meant to address may no longer be concentrated” in the states, counties, and cities that must obey that section. Section 5 currently applies to nine states (Texas, South Carolina, Arizona, Georgia, Louisiana, Mississippi, Alabama, Virginia and Alaska) as well as parts of Florida, California, New York, North Carolina, South Dakota, Michigan and New Hampshire. They are required to get permission from the Department of Justice before they may change any law dealing with voting.
The Court granted certiorari to review Shelby County, Alabama v. Holder, 679 F.3d 848 (D.C. Cir. 2012). Shelby County, southeast of Birmingham, has a population of nearly 200,000 people, more than eighty-three percent of whom are white. Instead of seeking Justice Department approval for any voting change, it made a plea to strike down Section 5 as written. It lost in both the federal district court and in the U.S. Court of Appeals for the D.C. Circuit. Shelby County is asking the Court to rule on the constitutionality of Section 5 under three provisions of the Constitution: the Tenth Amendment, which seeks to protect the sovereignty of states by preserving their rights of self-government; the Fifteenth Amendment, which gives Congress authority to pass laws to end the denial of voting rights based on race, and Article IV, which guarantees each state that it will have “a republican form of government,” meaning the power to govern itself without excessive interference from the national government.
There are other challenges to Section 5 that the Court has addressed: Nix v. Holder (where the Court denied certiorari in a case involving white voters in North Carolina who brought action against United States Attorney General, challenging hiss refusal under Voting Rights Act (VRA) to “preclear” proposed amendment to city’s charter providing for nonpartisan system for electing mayor and city council) and Texas v. Holder, where the DC Circuit Court held that it would not review U.S. Attorney General’s denial of preclearance, but would instead determine for itself whether Texas was entitled to preclearance of proposed change in voting procedures. The Texas case may come before the Court in the future.
The Brooklyn Law School Library has in its collection The Most Fundamental Right: Contrasting Perspectives on the Voting Rights Act (Call #KF4891 .M67 2012) by Daniel McCool. The book addressed the 2006 reauthorization of provisions of the VRA that were set to expire in 2007 and that passed by a wide margin in the House, and unanimously in the Senate. Divided into three sections, the book uses a point/counterpoint approach to explain the legal and political context of the Act, pairs three debates concerning specific provisions or applications of the Act, and offers commentaries from attorneys with differing viewpoints.