Challenge to the Voting Rights Act Reaches Supreme Court

Feb. 26, 2013 -- The opposing sides in a landmark Supreme Court case concerning a key provision of the Voting Rights Act of 1965 have filed court briefs that suggest they see America through two different lenses.

At issue is a key provision of the law -- Section 5 -- that requires certain states and jurisdictions with a history of discrimination to have any changes in voting procedures precleared by either the attorney general or a three-judge Federal District Court in Washington, D.C.

On one side is the Department of Justice, which says that Section 5 is the "most consequential, and amply justified exercises of federal power in the nation's history." A brief filed by the NAACP Legal Defense Fund says that Section 5 is still necessary because "notwithstanding undeniable progress, striking voting discrimination continues and is concentrated in the covered jurisdictions."

On the other side are lawyers for Shelby County, Ala., a covered jurisdiction under the Voting Rights Act, who say that Congress was wrong in 2006 to extend the provision for 25 more years. They argue that "things have changed in the South" and that the mostly Southern states covered by Section 5 should no longer be subject to a law that exacts a "heavy, unprecedented federalism cost" absent a widespread and persisting pattern of constitutional violations.

Both sides meet Wednesday, when the Supreme Court takes up the issue.

Last December, U.S. Attorney General Eric Holder made a speech in which he vigorously defended Section 5, calling it an "indispensable tool for eradicating racial discrimination." He noted that Congress reauthorized it in 2006, and that it has been upheld eight times from 1965 to 2012.

But Holder said that over the past two years there had been at least 10 lawsuits -- more than in the first four decades of the statute's existence -- arguing that it is no longer constitutional.

He said, "The reality is that, even today, too many citizens have reason to fear that their right to vote, their access to the ballot and their ability to have their votes counted is under threat."

The jurisdictions covered under the law include Alabama, Alaska, Arizona, Georgia, Louisiana, Mississippi, South Carolina, Texas and Virginia, as well as portions of California, Florida, Michigan, New Hampshire, New York, North Carolina and South Dakota.

All sides agree on the importance of the Voting Rights Act that was passed after "Bloody Sunday" in 1965, when protesters urging voting rights protection were beaten while trying to march from Selma to Montgomery, Ala. The question before the court is whether Congress assembled an appropriate record in reauthorizing Section 5 for 25 more years.

In reauthorizing the act in 2006, Congress held 21 hearings, heard testimony from witnesses and amassed more than 15,000 pages of evidence. In a recent speech sponsored by the American Constitution Society, Rep. Mel Watt, D-N.C., who sits on the House Judiciary Committee, said it was a "comprehensive and deliberate process" culminating in an "overwhelmingly bipartisan vote." The vote was 98-0 in the Senate, and 390-33 in the House.

Solicitor General Donald B. Verrilli Jr. argues in briefs that "Congress made the considered judgment in 2006 (as it had in 1970, 1975 and 1982) that covered jurisdictions continue to resist minority voters' equal enjoyment of the right to participate in the political process."

But Bert Rein, the attorney representing Shelby County sees the 2006 legislative record very differently. "At most," he writes in court briefs, "the 2006 legislative record shows scattered and limited interference with voting rights, a level plainly insufficient to sustain Section 5 preclearance."

He acknowledges that the Voting Rights Act "changed the course of history" but says that the record that was before Congress is outdated.

"Nothing in the record suggests that covered jurisdictions remain engaged in the pervasive voting discrimination and electoral gamesmanship that once made case-by-case adjudication of constitutional violations a futile enterprise and spurred Congress to act," he writes.

Carrie Severino, chief counsel of the Judicial Crisis Network, agrees that Congress found that discrimination still exists, but says the covered jurisdictions should no longer be treated any differently than the uncovered jurisdictions.

"Taken as a group, the covered jurisdictions are not any worse in terms of discrimination," says Severino." Congress should either base its extra burdens on states that show current problems with discrimination, or make voting regulations that apply equally to all states."

Rein says that there are other remedies in the Voting Rights Act, such as Section 2 of the law, that can be used to protect the rights of minority voters. Under Section 2, which applies to all states, the burden is on the plaintiff who alleges that he or she has been the victim of some form of voting discrimination to file a lawsuit.

Lawyers for the NAACP Legal Defense Fund say that Section 2 is not the remedy. "Litigation under Section 2 of the VRA is time consuming, costly and permits racial discrimination to take root in the electoral process before it can be remedied."

In their briefs, the lawyers outline instances in covered jurisdictions that they say prove the continued necessity of Section 5. The city of Calera, in Shelby County, for example, submitted a redistricting plan in 2008 that eliminated the only majority-black district. Calera then held an election for City Council based on the changes that had not been precleared. The election resulted in the defeat of Ernest Montgomery, the only African-American on the City Council. Only after the Department of Justice brought a challenge did Montgomery retain his seat.

A lower court upheld the Section 5 ruling that while the legislative record is "by no means unambiguous," it would defer to Congress. "Congress drew reasonable conclusions from the extensive evidence it gathered," the court ruled.

But conservatives on the Supreme Court expressed reservations about Section 5 as recently as 2009.

In a related case, Chief Justice John Roberts wrote that the " historic accomplishments of the Voting Rights Act are undeniable."

But he said that voter turnout and registration rates in the South "now approach parity," that "blatantly discriminatory evasions of federal decrees are rare" and that "minority candidates hold office at unprecedented levels.

"The evil that Section 5 is meant to address may no longer be concentrated in the jurisdictions singled out for preclearance."

He sent a strong warning to Congress: "The statute's coverage formula is based on data that is now more than 35 years old, and there is considerable evidence that it fails to account for current political conditions."

The case will be decided by July.