Wade Henderson, president of the Leadership Conference on Civil and Human Rights, is anxiously waiting for the Supreme Court to rule on a key provision of the Voting Rights Act .
“At issue in the case is the heart of the law, Section 5, which protects voters in the jurisdictions with the worst history –and contemporary record — of discriminating against voters based on their race,” said Henderson on a recent conference call.
Section 5 requires states (mostly in the South) with a history of discrimination to have any changes in voting procedures preapproved by federal officials in Washington. Covered jurisdictions include nine states and parts of six more. Congress has reauthorized the law four times.
Henderson said the court should uphold the Voting Rights Act but warned of the consequences if it doesn’t. “If the court struck down or weakened Section 5, it would lead to the largest roll back of American democracy since the end of reconstruction.”
At oral arguments in February, some of the conservative justices praised the landmark civil rights law passed in 1965 but questioned whether Congress was correct to reauthorize Section 5 in 2006.
Chief Justice John Roberts seemed concerned that Congress hadn’t done enough to explore the coverage formula that determines which states are singled out. He asked Verrilli, “Is it the government’s submission that the citizens in the South are more racist than citizens in the North?” he asked.
Justice Antonin Scalia compared it to a “perpetuation of racial entitlement.”
“I don’t think there is anything to be gained by any senator to vote against continuation of this act,” Scalia said. “And I am fairly confident it will be re-enacted in perpetuity unless a court can say it does not comport with the Constitution. You have to show, when you are treating different states differently, that there’s a good reason for it.
Critics of Section 5
Critics of Section 5 point out that in 2009, in a separate case, Chief Justice John Roberts stressed that some members of the court have had “serious misgivings” about the constitutionality of Section 5. Since the warning, Congress has done nothing.
Carrie Severino of the Judicial Crisis Network says that Congress has “thumbed its nose” at the court’s concern regarding Section 5. ”If Section 5 of the Voting Rights Act does not survive this case,” she says, “it will be because Congress couldn’t be bothered to heed the court’s repeated warnings to justify its unequal treatment of different states.”
The challenge to the law comes from lawyers for Shelby County Alabama who argue that Congress exceeded its authority in 2006 when it extended the Voting Rights Act for another 25 years . They point out the federalism costs of Section 5 and says that it can only be justified with contemporary evidence of the kind of “unremitting and ingenious defiance” that existed when the Voting Rights Act was passed in 1965. The lawyers also target the formula used to decide which jurisdictions should be covered. They say the formula is obsolete and no longer rational.
They say that another section of the law — -Section 2 — can be used as an effective remedy to protect the rights of minority voters. Under Section 2 the burden is on the plaintiff who alleges that he or she has been victim of some form of discrimination who must file a lawsuit. Section 2 applies to all states.
The United States government is defending Section 5. “Everyone acknowledges,” Solicitor General Donald B. Verrilli said in court, “that the Voting Rights Act made a huge difference in transforming the culture of blatantly racist vote suppression that characterized parts of this country for a century.” Verrilli said “Section 5 preclearance was the principal engine of that progress.”
A lower court upheld the law holding that Congress had done it’s homework and acted on the basis of a legislative record “over 15,000 pages in length, and including statistics, findings by courts and the Justice Department, and firsthand accounts of discrimination. ”
A decision is expected by early summer.