The Supreme Court announced today that it will accept a case arguing that Section 5 of the Voting Rights Act is unconstitutional: Shelby County v. Holder. Given the hostility of the Roberts Court's conservatives to voting rights and minority rights, this was not a surprise.
Since its adoption in 1965, Section 5 of the Voting Rights Act has been an essential protection against those who seek to deny Americans the right to vote based on race. Congress specified areas of the country with a history of discrimination where, in its judgment, any changes in voting laws would need federal approval before going into effect, either from the Justice Department or from a federal court. The Supreme Court upheld this as constitutional in 1966. Congress has reauthorized the VRA several times since then, most recently in an overwhelming vote in 2006. After considering the history of voter suppression in the years leading up to the most recent reauthorization, Congress chose not to alter the list of states and counties subject to Section 5 preclearance. As recently as 2009, the Court declined to rule on Section 5's constitutionality when it was raised in a case called Northwest Austin Municipal Utility District Number One [NAMUDNO] v. Holder.
These past few months have seen a number of examples showing the vital role Section 5 plays in protecting the right to vote. Due to preclearance, a discriminatory redistricting scheme adopted by Texas, a Texas voter ID law with a racially discriminatory impact, and a severe cutback in early voting that disproportionately hurt minority voters in several Florida counties were all prevented from going into effect. Without Section 5, the discrimination and damage would occur before voters could go to court to try to stop it; they would have had a harder time enjoining enforcement of such laws, which could have remained in effect throughout the long months or years of litigation.
Far-right opponents of the Voting Rights Act note that racial discrimination in voting rights in the mostly southern states covered by Section 5 is not rampant as it was in the 1960s. (Hmmm, could Section 5 itself have something to do with that?) They argue that Congress's decision in 2006 to maintain the same list of covered areas from 1965, regardless of changes in intervening decades, was unconstitutional. Specifically, they argue that it exceeds congressional authority under the 15th Amendment (preventing denial of the right to vote based on race), violates the states' rights to regulate elections under Article IV and the 10th Amendment.
In announcing that it will hear the case, the Court threw another factor into the mix. The question it asked parties to brief was slightly different from what the plaintiffs asked for:
Whether Congress' decision in 2006 to reauthorize Section 5 of the Voting Rights Act under the pre-existing coverage formula of Section 4(b) of the Voting Rights Act exceeded its authority under the Fourteenth and Fifteenth Amendments and thus violated the Tenth Amendment and Article IV of the United States Constitution. (emphasis added to show new issue)
Many Court watchers expected the Court to strike down Section 5 in 2009 in the NAMUDNO case, but it declined then to address the constitutional issue. Clearly, the Court's conservatives feel it is time to do so.
In the 1950s and 1960s, many brave Americans gave their lives so that African Americans would no longer be denied the right to vote. The Voting Rights Act – and especially Section 5 – was the triumph of the best of American principles over the worst of American racism, often couched as "states' rights." By next June, we will learn whether Section 5 will fall before that all-too familiar altar of "states' rights."