In a comprehensive and careful 151-page opinion, a federal district court in Shelby County v. Holder has upheld the constitutionality of Section 5 of the Voting Rights Act against constitutional challenge. Though there are other cases pending raising the same issues (the Kinston case and the newly-filed challenge brought by Arizona), this opinion tees up the issue very well for eventual Supreme Court review.
I have not yet had a chance to read the entire opinion, but from my cursory review it appears that this case makes the strongest case possible from the congressional record against the argument that the requirement that certain jurisdictions (mainly, but not only, in the South) seek preclearance from the federal government before making changes in their voting practices and procedures exceeds congress’s power.
The opinion concludes:
On the eve of the 2006 reauthorization of Section 5, many academics wondered whether, given the effectiveness of Section 5 in deterring unconstitutional conduct, Congress would be able to compile a sufficient record of recent unconstitutional voting discrimination to support Section 5’s continued existence; in other words, had Section 5 become “a victim of its own success.” See, e.g., Samuel Isaacharoff, Is Section 5 of the Voting Rights Act a Victim of Its Own Success?, 104 COLUM. L. REV. 1710 (2004). One scholar characterized this phenomenon as the “Bull Connor is Dead” problem: given the fact that “[m]ost of the original racist elected officials are out of power,” and that “those who remain in power . . . have for the most part been deterred by preclearance,” would Congress be able to point toward “a record of recent state-driven discrimination . . . supporting renewal” of Section 5 in 2006? Hasen, 66 OHIO ST. L.J. at 177. Based on the evidence contained in the 15,000-page legislative record, this Court concludes that Congress did just that. Despite the effectiveness of Section 5 in deterring unconstitutional voting discrimination since 1965, Congress in 2006 found that voting discrimination by covered jurisdictions had continued into the 21st century, and that the protections of Section 5 were still needed to safeguard racial and language minority voters. Understanding the preeminent constitutional role of Congress under the Fifteenth Amendment to determine the legislation needed to enforce it, and the caution required of the federal courts when undertaking the “grave” and “delicate” responsibility of judging the constitutionality of such legislation — particularly where the right to vote and racial discrimination intersect — this Court declines to overturn Congress’s carefully considered judgment. For the foregoing reasons, the Court will deny Shelby County’s motion for summary judgment, and grant the motions for summary judgment filed by the Attorney General and the defendant-intervenors. A separate order has been filed on this date.
The plaintiffs have already announced they will appeal. From an emailed press release:
The Project on Fair Representation (POFR), a not-for-profit legal defense foundation that provided various resources to the plaintiff, is disappointed with the outcome in Shelby County, Alabama v. Holder.
POFR director Edward Blum said, “With this unfortunate opinion, the court failed to recognize the ongoing damage these provisions incur to our nation’s bedrock principles of federalism.”
Blum added, “The Project on Fair Representation looks forward to helping Shelby County with an appeal of this decision.”
Section 4(b) of the Voting Rights Act subjects certain States and political subdivisions to Section 5 of the Voting Rights Act, which invades the sovereignty of these “covered” jurisdictions by requiring them to “preclear” all voting changes (redistricting, moving polling places, etc.) with the United States Department of Justice or the District Court for the District of Columbia. Shelby County is a “covered” jurisdiction because, in 1965, the Attorney General determined that Alabama was using a prohibited voting test and less than 50% of the persons of voting age residing in Alabama voted in the presidential election of November 1964. As a result, Shelby County is regularly required to engage in the costly and burdensome process of submitting all voting changes, no matter how minor, to Washington, DC prior to implementation.
In its lawsuit, Shelby County asserts that Sections 4(b) and 5 exceed Congress’ enforcement authority under the Fourteenth and Fifteenth Amendments and thus violate the Tenth Amendment and Article IV of the Constitution. The lawsuit claims that Sections 4(b) and 5 were reauthorized by Congress in 2006 for another 25 years without sufficient evidence of current intentional racial discrimination in voting by ”covered” jurisdictions. Furthermore, by continuing to base coverage on voting practices and data from 1964, the reauthorized statute does not take into account either the substantial improvements that have occurred in these jurisdictions in the last 45 years or that any lingering voting discrimination is the same or worse in non-covered jurisdictions.
“To require today that only southern states should be burdened with a federal statue concerning elections is wrong. Sections 4(b) and 5 are stuck in a time warp that unfairly punishes parts of the country for the sins of their grandfathers. It ill serves our nation’s remarkable racial evolution.” Blum said.
Blum concluded, “By subjecting only the South to Section 5’s preclearance burden, Congress treats racism as an inheritance that clings to the land rather than a manifestation of attitudes and actions of living individuals.”