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.