Supreme Court to Review Contested Provision of the Voting Rights Act

Nov 20, 2012

By Kristen Friend, staff writer – November 20, 2012.

The Supreme Court has agreed to hear a challenge to the 1965 Voting Rights Act, a signature piece of civil rights legislation aimed at ensuring equal access to the polls.

The Court’s decision to take the case came just three days after the 2012 presidential election. The election was noted for long lines and difficulties at polling locations in several states, which has given rise to talk about whether Congress will step in and set new national standards for voter registration or allow early voting.

The move is not unexpected, and it does significantly raise the profile of the docket for this term. Justices have hinted that a key provision of the law would need to be revisited in the near future.

The question being posed is whether Congress overstepped its authority when it extended the Voting Rights Act (VRA) for an additional 25 years in 2006. Specifically, the case focuses on Section 5 of the VRA, which requires “preclearance” for any changes to voting laws or procedures in certain districts, mostly in the south. Covered jurisdictions may be whole states or specific counties and municipalities within a state that have historically shown a pattern of racial discrimination in their election laws and practices. These jurisdictions must receive federal approval for any legislation that affects voting before it can be implemented as law. [1]

States and jurisdictions can petition to and be removed from the list of those subject to preclearance. In order to do so, they must show a ten-year record of clean, non-discriminatory voting practices. [2]

The preclearance provision of the VRA was quickly challenged, and in 1966, the Supreme Court upheld its constitutionality as a necessary remedy for some of the more blatant and egregious discriminatory practices of officials in certain southern states. [3] The law has proven to be highly successful in opening up access to the polls. It is a key piece of civil rights legislation and is considered to be one of the most effective legacies of the civil rights movement.

Section 5, however, has always been a temporary measure. When passed in 1965, it was originally set to expire in five years. Congress renewed the provision for an additional five years in 1970, for seven years in 1975 and again for 25 years in 1982. In 2006, Congress overwhelmingly renewed the law for another 25 years with a vote of 98-0 in the Senate and 390-33 in the House. [4]

Derrick Banks wears his ‘I Voted’ sticker after voting in the 2012 presidential election in Chicago, Illinois

When Congress extended the provision in 2006, they performed a review of the voting landscape across the country. Lawmakers discovered that the number of objections made by the Attorney General to discriminatory changes in voting laws had not diminished since the previous reauthorization in 1982. But Congress did not make any changes to the formulation they used to determine which states and municipalities should be designated as covered jurisdictions. Many opponents of the law see this as a central failure. Congress has not made any changes to the calculations establishing covered jurisdictions since the 1970s. [5]

Three years ago, the Supreme Court sent a message to Congress that lawmakers should reevaluate the formula used to determine covered jurisdictions and replace it with one that is more in line with contemporary realities. In the 2009 case, Northwest Austin Municipal Utility District Number One v. Holder, the Court dodged the central question of Section 5’s constitutionality but warned that they may need to reconsider the issue if no action was taken to modernize the standards.

At the time, Justice Kennedy expressed concern that Section 5 as written places an unnecessary and unfair burden on some states. During arguments he said, “The government of the United States is saying that our states must be treated differently. And you have a very substantial burden if you’re going to make that case … No one questions the validity, the urgency, the essentiality of the Voting Rights Act … The question is whether or not it should be continued with this differentiation between the states. And that is for Congress to show.” [6]

Writing for the majority, Chief Justice Roberts acknowledged that the “historic accomplishments of the Voting Rights Act are undeniable.” But he continued, saying that “things have changed in the South,” and that, “the evil that Section 5 is meant to address may no longer be concentrated” in these states. [7]

Since the Court’s decision in Northwest Austin, Congress has done nothing to revisit the way in which Section 5 is applied.

This most recent challenge to Section 5 comes from Shelby County, a suburban area in Alabama whose population of roughly 200,000 people is more than 83 percent white. [8] Officials in Shelby County are not seeking permission to make voting changes. They are specifically targeting Section 5 with a plea to strike down the law as written. The case lost in District Court and again on appeal.

The ruling of the U.S. Court of Appeals for the District of Columbia upheld the constitutionality of Section 5 by a vote of 2-1. The opinion noted the Supreme Court’s skepticism over the law as laid out in Northwest Austin, but found that, “Congress drew reasonable conclusions from the extensive evidence it gathered and acted pursuant to the Fourteenth and Fifteenth Amendments, which entrust Congress with ensuring that the right to vote – surely among the most important guarantees of political liberty in the Constitution – is not abridged on account of race.” [9]

In his dissent, Judge Williams was critical of both the formula for determining covered jurisdictions and the provision as a whole, but ultimately wrote that only the formula as it now stands is unconstitutional. Section 5 survived both the majority opinion and the dissent. [10]

The Voting Rights Act and the 2012 Election

The 2012 presidential election was noteworthy for repeated images of people standing in long lines, waiting two, three – even more than four hours to vote, in some cases. Florida once again was the center of controversy due to exceptionally long lines at many polling places. The last vote was not cast in Florida until 1:30 in the morning on Wednesday, November 7. [11] President Obama took note of the issue in his election night acceptance speech, thanking those who had waited for hours to exercise their right to vote and saying, “By the way, we have to fix that.” [12]

Both supporters and opponents of the VRA see the election as affirmation of their positions. Supporters point to the efforts of some states to enact voter ID laws and curtail early voting hours as evidence of continued attempts to discriminate against and disenfranchise minority voters. Opponents note high minority turnout and the fact that the country re-elected an African American President as evidence that times have changed.

The Voting Rights Act played a role in several cases throughout the summer and fall leading up to the presidential election. The Justice Department used Section 5 to challenge changes to laws in several states.

In the case Texas v. Holder, a three judge panel held that a Texas law requiring photo ID in order to vote was too stringent and would inevitably have a discriminatory effect. According to the law, there were only 5 permissible forms of photo identification, which were chosen with what some consider to be partisan intent. A gun permit, for example, was allowable but a student ID or Medicare card were not. The DC district court found that the law was the equivalent to a type of poll tax that would disenfranchise lower income Texans, a disproportionate number of whom are African American or Hispanic. [13]

Another case, Florida v. United States, concerned restrictions on early voting hours. The Justice Department successfully challenged changes to early voting in Florida counties covered by Section 5. Again, the DC Circuit Court found limits on voting hours to be discriminatory. The court wrote that, “a dramatic reduction in the form of voting that is disproportionately used by African Americans would make it materially more difficult for some minority voters to cast a ballot.” [14] The three judge panel also noted that restricting early voting hours was comparable to intentionally closing polling places early in predominantly African American precincts. [15]

Voter ID laws in South Carolina and Pennsylvania were also put on hold until after the election. Since 2010, eight of the eleven former confederate states have passed some form of voter restriction. [16]

When petitioning the Supreme Court to hear the case on behalf of Shelby County, attorney Bert Rein said, “These constitutional challenges arise, in significant part, in response to the [Justice Department’s] needlessly aggressive exercise of preclearance authority.” [17]

However, the actions taken by the Justice Department are precisely what motivate supporters of the law to argue for its continued necessity. Acting President and Director of the NAACP Legal Defense Fund, Debo P. Adegbile said in defense of Section 5, “In light of our history and recent voting experience, it would be an extraordinary judicial act for the Court to cast aside the sound judgment that America can and must do more to ensure equality.” [18]

Given the skepticism key members of the Court have expressed about the law and its decision to take a case that has not split the lower courts, it is considered unlikely that Section 5 will survive. The Court could decide that Congress did not have the authority to extend Section 5 using outdated historical data, but leave an opening for lawmakers to reconsider the matter using a new formula that reflects current nationwide voting statistics. This could have the effect of undoing Section 5 in practice without explicitly declaring it unconstitutional. Congress is not likely to reach an agreement on such a sweeping issue given the current political climate.

Congress does have the power to make laws on the national level that affect the policy of states and municipalities with regard to voting practices. This power is laid out explicitly in Article I, Section IV of the Constitution and in the Fifteenth Amendment. Article I, which is more commonly referred to as the Elections Clause, specifically gives Congress the power to, “at any time by law make or alter” state election regulations. [19] And the Fifteenth Amendment prohibits discrimination in voting practices based on race and gives Congress the “power to enforce this article by appropriate legislation.” [20]

If the Supreme Court agrees with Shelby County that Congress overreached when it renewed Section 5, it would likely be considered a victory for the conservative understanding of federalism – the much contested balance of power between states and the federal government. It would also represent a significant shift from the current understanding of Congressional power with regard to ensuring fair elections and could have far reaching effects on how voter registration and elections are executed in many states.

The case is Shelby County v. Holder. Arguments have not yet been scheduled, but a decision is expected sometime next summer.

9. Opinion of the United States Court of Appeals
for the DC Circuit, No. 11-5256, online at:$file/11-5256-1374370.pdf
14. Opinion of the US District Court for the District of Columbia, Civil Action No. 11-1428, online at: