The biggest threat to the Voting Rights Act is the U.S. Supreme Court


Posted by AzBlueMeanie:

GavelOn Wednesday, February 27, The U.S. Supreme Court will hear oral arguments in Shelby County v. Holder, a constitutional challenge to Section 5 preclearance under the Voting Rights Act of 1965 (as amended). Andrew Cohen at The Atlantic has a beautifully written history of the Voting Rights Act and the case before the U.S. Supreme Court. After 50 Years, the Voting Rights Act's Biggest Threat: The Supreme Court (excerpts):

At 10 a.m. next Wednesday, the justices of the United States Supreme Court will hear oral argument in a case styled Shelby County v. Holder, one
of the most anticipated of the current Term. Agreeing to review an
argument made by an Alabama county that it ought finally to be free from
one of the key requirements of the Voting Rights Act of 1965, the
justices will have an opportunity both to lead and to follow the nation
as it roils anew in political and legal battle over the rights of the
poor, the ill, the young, the car-less, the black, the Hispanic, and the
Native American to vote.

Nearing its 50th birthday, the act has become a part of our national lore. One of the crowning achievements of the civil rights movement (and of the Johnson Administration),
it was designed by its creators to finally give meaningful legal
remedies to minority citizens — blacks, mostly, but not exclusively —
who for generations had been precluded from voting (or from having their
votes fairly counted) by a dizzying flurry of discriminatory state
practices. The act didn't just expand the scope of existing federal
civil rights laws. It completely changed the dynamic between voters and
state and local governments. And the results are indisputable: There is
far less discrimination in voting today than there was half a century
ago — and many millions more minority voters.

As a technical matter, the central question the justices have been asked to resolve in Shelby County
is whether Section 5 of the Voting Rights Act, the "preclearance"
provision which requires officials in certain jurisdictions to seek
federal approval before any new election law may be imposed, is still a
valid exercise of Congress' power to enforce the Fourteenth and
Fifteenth Amendments. If the Court says no, one of the act's most
valuable shields will be destroyed, and millions of Americans of color in 16 states [including Arizona] will immediately have less legal protection from racially tinged voter laws and redistricting efforts.

* * *

In Shelby County, the justices are similarly being asked by
conservative lawyers and local officials to overrule the judgment of
Congress that the core of the Voting Rights Act continues to be
necessary to protect the rights of minority voters. That legislative
judgment could hardly have been more clear: When the Act was last renewed in 2006 (the fourth such renewal since 1965), the margin was 390-22 in the House of Representatives and 98-0 in the Senate.

And Congress' renewal could hardly have been accompanied by more
diligence. "Congress held 21 hearings, heard from scores of witnesses,
and amassed more than 15,000 pages of evidence regarding ongoing voting
discrimination in covered jurisdictions," Obama Administration lawyers
have reminded the justices. Those findings, the feds now argue, are
entitled to great judicial deference, even if imperfect, and even if the
resulting legislation only covers certain portions of the country with a
long history of discrimination in voting practices.

Indeed, the current challenge comes to the Court immediately following
an election season which reminded any reasonable observer that the right
to vote is still very much an open question in America. From 2010 to
2012, in red and blue
states alike, restrictive new voter identification or registration laws
were enacted — and promptly challenged in court. So too were dubious
redistricting efforts. Many of the most nakedly partisan efforts were
struck down or delayed by state judges. Other discriminatory voting
rules and regulations were blunted in federal court by Section 5 of the
Voting Rights Act itself — a sharp prebuttal to the argument that the
provision has outlived its usefulness.

Since the 2012 election, meanwhile — since the justices agreed to hear the Shelby County case — partisan efforts to disenfranchise whole groups of people have continued. . .

Continue reading After 50 Years, the Voting Rights Act's Biggest Threat: The Supreme Court.


Thanks to hundreds of those overzealous state lawmakers, who jumped the gun after Northwest Austin and Crawford,
who enacted odious laws that jeopardized the ability of millions of
registered voters to cast a ballot, we've already been treated to a
glimpse of the future without the core of the Voting Rights Act. It is
very grim, indeed. No wonder Rep. John Lewis, the civil rights icon and
longtime Democratic member of Congress from Georgia, said last summer
that "all of us should be up on our feet" making a ruckus about
partisan voting restrictions. The good news is that federal lawmakers
have heard those cries and done something about it. The bad news is that
the Supreme Court has heard those same cries, and seems poised to do
something about it as well.


  1. The coverage formula used is a legislative decision within the exclusive prerogative of the Congress. The Court does not get to legislate from the bench. As long as Congress has a rational basis for its actions, it is not for the Court to substitute its own judgment for the judgment of Congress. This is outside the purview of judicial review.

  2. The criteria used by the law to determine which jurisdictions are covered is facially irrational, relying as it does on 40-50 year old data.

    If there is so much evidence that Section 5 is needed in certain places and not others, why not key the coverage formula to that evidence?

    The coverage formula used in the original law in 1965 was rational, relying as it did on 1964 data. The 2006 law (or future amendments thereto) should cover states explicitly based on wrongdoing in the recent past, not in the 1960’s and 1970’s. If there is so much evidence, it should be no problem to come up with a facially rational formula.

    Or Congress could apply Section 5 to all states…

  3. “Congress decided in 2006 to renew the VRA and apply Section 5 to some states and not others using irrational criteria.” Bullshit. Congress compiled over 15,000 pages of evidence and congressional testimony that discrimination by covered states against voters was still an ongoing problem and concern in 2006. Congress rationally decided to renew the CRA by an overwhelming margin (the rational basis test applies). Congressional action based upon such a substantial record is entitled to due deference from the Court.

    If the U.S. Supreme Court, which has upheld the CRA numerous times since 1965, strikes down Section 5 it is legislating from the bench and is violating the legislative prerogative of Congress.

  4. The case is not about voting rights.

    Rather, it is about whether or not Congress can discriminate between states in an arbitrary manner.

    If Section 5 applied to all states equally, this case would never have been brought. But Congress decided in 2006 to renew the VRA and apply Section 5 to some states and not others using irrational criteria.

    This is sloppy legislation that deserves to be struck down.