Historic challenge to the Voting Rights Act

Section 5 of the 1964 Voting Rights Act requires certain covered jurisdictions (mostly but not exclusively in the South) to get the pre-clearance of the federal government before they can make any changes in their voting laws. These changes can range anywhere from voter registration rules to changes in polling locations. It was supposed to be a temporary provision that was to last only five years. Instead, it has been maintained and expanded with each renewal by Congress.

Shelby County in Alabama is one of the covered jurisdictions, since it is part of a state that is a covered jurisdiction based on the current formula used by the U.S. Department of Justice, which is responsible for reviewing compliance. When Congress passed the latest extension of the provisions that sunset in 2006, Shelby County filed suit against the U.S. attorney general as the chief agency in charge of the act’s enforcement.

The lawsuit finally reached its ultimate destination on February 26th of this year: the U.S. Supreme Court. The basic argument Shelby County has put before the court is not that the law is no longer needed, but rather, that the current formula used by the Department of Justice and approved by Congress is unconstitutional, as it violates the 14th and 15th Amendments — basically, the ones which outlaw slavery and give African Americans citizenship and the right to vote. They also enshrined in law the principle of due process and equal protection under the law — laws apply equally to all U.S. citizens with few exceptions, none of which involve race and ethnicity.

Shelby County argued that the “opt out” provisions — those standards which would free a political division such as a state or a subdivision such as a county, city or other governmental district — are based on standards from 1968. They argue that current statistics and realities in the covered jurisdictions have changed greatly in the past 45 years. These statistics come from the government’s own Census Bureau.

Shelby County argues that the provisions of Section 2 of the Voting Rights Act, which has no sunset built in, provide adequate remedies for any cases of discrimination, since it allows for lawsuits by individuals, groups or the U.S. Department of Justice to correct action by state and local governments.

The problem pointed to by the Department of Justice and others opposing Shelby County is that it was and is up to Congress as to determine the special provisions for pre-clearance as still needed and what the standards for “opting out” should be. They note that in the history of the act, many jurisdictions have been able to meet the formula of Section 5. The department also argues that while most pre-clearances are granted, there are enough cases where proposed changes have been blocked to justify the continuation of the pre-clearances.

Based on a transcript of the oral arguments for Shelby County v. Holder, I believe the court will, along the existing 5-4 conservative/liberal line, rule in favor of Shelby County. The court will rule that the disputed formula is unconstitutional but the concept of pre-clearace passes constitutional muster, and it will be up to Congress to fashion a standard that will be acceptable based upon the court’s decision. It will recognize the need for the pre-clearances to remain in covered jurisdictions, but that the realities in those jurisdictions is changing also for the better.

By Jeffery Cassity, guest contributor
Jeffery Cassity is a socially-liberal, fiscally-conservative Anglo male who is involved in his local Latino community. As the widower of a 1st-generation Mexican-American woman, he’s an active (some would say hyperactive) member of the his Council of the League of Latin American Citizens (LULAC).

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