SCOTUS to take a fresh look at the VRA

posted at 12:31 pm on November 11, 2012 by Jazz Shaw

On Friday, which turned out to be a rather busy news day indeed, the Supreme Court announced that they have agreed to hear yet another high profile case which could determine the future of a key section of the 1965 Voting Rights Act. The case deals with Section 5 of the law, which requires specific (mostly Southern) state and local governments to obtain “preclearance” from the federal government before making any changes to voting laws.

The Supreme Court announced on Friday that it would take a fresh look at the constitutionality of the Voting Rights Act of 1965, one of the signature legacies of the civil rights movement.

Three years ago, the court signaled that part of the law may no longer be needed, and the law’s challengers said the re-election of the nation’s first black president is proof that the nation has moved beyond the racial divisions that gave rise to efforts to protect the integrity of elections in the South.

The law “is stuck in a Jim Crow-era time warp,” said Edward P. Blum, director of the Project on Fair Representation, a small legal foundation that helped organize the suit.

Civil rights leaders, on the other hand, pointed to the role the law played in the recent election, with courts relying on it to block voter identification requirements and cutbacks on early voting.

Section 5 – along with much of the act itself – is just one of those pieces of legislation which has always been at the center of controversy. Its goal was clear and easy to support, given the undeniable history of certain elected officials passing laws intended to keep black voters from the polls. But at the same time, the Act carried with it disturbing aspects from a constitutional perspective. One of the largest was the way that it imposed oversight requirements on certain states and municipalities but not others, dealing with one of the most fundamental rights of Americans. The argument has been made that if you are to require one state to obtain preclearance before altering their election laws, then you should require them all to do so. And that’s an idea which nobody seemed interested in.

Among those who don’t wish to see this review, a chief complaint appears to be that it would gut the Voting Rights Act and set back equal rights by half a century. Doug Mataconis, an attorney who has been digging into this question, disagrees.

Even if the Court rules in favor of Shelby County in this case later this year, that doesn’t mean that the Voting Rights Act is “obsolete.” For one thing, the other enforcement provisions in the law remain in full force in effect. Their Constitutionality was upheld in 1965 and has never been seriously challenged, even the majority in the Utility District case, as well as Justice Thomas in his Dissent, accept the overall Constitutionality of the Voting Rights Act. The question that the Court will be dealing with is whether the re authorization of Section 5 for another 25 years in 2006, based at it is on data that was 40 years old at the time, was a proper exercise of Congressional authority under the 15th Amendment. Even if the Court were to strike the re-authorization down, Congress would still be able to go back and re-authorize a new version of the law based on newer, more current and more relevant data if it wanted to. So, the doom and gloom that Serwer is preaching here is more than just a bit exaggerated.

The other aspect of the Voting Rights Act which probably should be under review, but won’t be, is the question of who it continues to apply to. (Or, in the opinion of some, who it should apply to.) Some of the states still under these restrictions have clearly established a lasting record of equitable treatment in their voting laws and deserve a fresh look based on their current record. And, playing devil’s advocate for a moment, opponents still claim that some states such as Ohio and Pennsylvania are trying to use changes in voting laws in ways which should fall under federal scrutiny. Either way, don’t expect these questions to be entirely resolved when the high court rules on this one narrow section under review.


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