by Anthony Kammer
Less than two years after the Supreme Court’s ruling in NAMUDNO v. Holder, conservative legal groups are renewing their efforts to invalidate the Voting Rights Act of 1965 (“VRA”). On Wednesday, February 2, Federal District Judge John Bates heard a challenge brought by Alabama’s Shelby County and its conservative backers claiming that Section 5 of the VRA was unconstitutional because it “arbitrarily impose[s] on Shelby County and other covered jurisdictions disfavored treatment.”
Section 5, commonly known as the “preclearance” provision, is one of the primary enforcement mechanisms in the VRA. It requires any covered jurisdiction to obtain approval from either the Attorney General or the DC District Court before changing “any voting qualification or prerequisite to voting, or standard, practice, or procedure with respect to voting.” When Congress passed the VRA in 1965, and again when it extended it for 25 more years in 2006, it specified covered jurisdictions in 16 states with a history of discriminatory practices that would be subject to the Section 5 preclearance requirement.
One of these jurisdictions, Shelby County claims that Section 5 wrongly singles out counties like Shelby who no longer require the added enforcement mechanism, based solely on electoral discrimination that characterized the deep south decades ago. According to a motion from the county’s attorneys, “For Congress to continue to interfere with Shelby County’s electoral autonomy in 2010 based on conditions that existed in 1965 is both arbitrary and without constitutional justification.” Shelby County has run afoul of pre-clearance requirements on two previous occasions.
The Justice Department, joined by the Alabama chapter of the NAACP and several minority voters, is seeking dismissal of the suit. Congress reauthorized the VRA in 2006, and before doing so, it heard extensive evidence on the question whether Section 5 was still needed. The DOJ asserts that this evidence was sufficient for Congress to reauthorize the VRA pursuant to the 15th Amendment. Attorney General Holder’s filings further argue that the reauthorization was reasonable given the continuation of electoral discrimination and the emergence of new, more subtle forms of discriminationin the covered jurisdictions.
The Supreme Court heard a similar constitutional challenge to Section 5 in 2009 in NAMUDNO v. Holder. The Court issued an unexpected 8-1 ruling that the covered jurisdiction in that case (a county in Austin, Texas) could apply for an exemption from the law.
Liberal commentators had feared that the Court, with Kennedy as the swing vote, would have invalidated the Act, particularly in light of Chief Justice Roberts’ previous writings on the VRA. This Shelby County case might be the Court’s chance to deliver one final blow to the already shaky Act. More background information on the case is available here.
It’s somewhat ironic that a county with a sordid history of racial discrimination is now running to the courts to claim that the Voting Rights Act discriminates against it.