While much of the rest of the nation was diverted for the holidays, a group of lawyers in Washington pressed on to prepare new legal papers in hopes of getting a speedy decision — perhaps in time for the 2012 elections — on the constitutionality of the federal law that many consider history’s most important guarantee of minorities’ voting rights. Having barely missed the chance in 2009 to get the Supreme Court to strike down Section 5 of the 1965 Voting Rights Act, challengers are seeking to set up a new test case as quickly as they can. They may get their wish, at least in lower federal courts.
Three days after Christmas, attorneys for a group of opponents of Section 5, who live in the small community of Kinston in eastern North Carolina (population about 24,000), urged the D.C. Circuit to take unusual steps to decide their case in close tandem with an already pending challenge there from Shelby County, Alabama. The Kinston lawyers even offered to forfeit the usual opportunity for an oral argument, if that would move the case along.
“The public has a compelling interest in a prompt and definitive resolution of Section 5′s facial constitutionality during the upcoming election year,” the attorneys said in a motion to expedite their appeal, and to assign it to the same three-judge panel that is reviewing the Shelby County case. “Section 5 will have a sweeping effect on the 2012 elections, because it will affect redistricting, voter-identification laws, polling-place locations, early-voting hours, and any other voting change” in all or parts of 16 states that are subject to Section 5. The Justice Department, the attorneys told the Court, does not object to those requests.
Section 5 has been under steady constitutional challenge since the original Act was passed in 1965, but it has survived all of the challenges so far, although it had appeared to be very much at risk two years ago when the Supreme Court in the case of Northwest Austin Utility District v. Holder questioned whether its formulas for which state and local governments are covered may be out of date and may no longer be justified in the same form. The Court, however, apparently was not yet ready to strike down Section 5 and wound up easing the way for covered governments to “bail out” of coverage. The criticism within the Court has prompted challengers to mount a series of new challenges. The ones in the District of Columbia appear to be moving along most rapidly.
Under Section 5, a state or county government that had a history of racial bias in past voting practices cannot put any change in election laws into effect until it has been legally approved in Washington, either by the Justice Department or by a three-judge U.S. District Court. But in the Kinston case, the challengers went beyond the clearance system, and filed a constitutional challenge claiming that Congress had no power to pass Section 5, and certainly no power to extend it for 25 years when it did so in 2006. That is the same direct challenge approach that Shelby County took.
The new legal filings in the Kinston case were handed in at the Circuit Court just six days after U.S. District John D. Bates of Washington — in his second ruling this year upholding Section 5 — did so in the Kinston case, which raises issues that have never been tested in other challenges to that provision. In September, Judge Bates had upheld the section’s validity in the Shelby County case, and that case already is proceeding on an expedited basis, with a hearing set for January 19 before the Circuit panel. (Shelby County v. Holder is proceeding under Circuit docket 11-5256. The Kinston case, LaRoque, et al., v. Holder, is docketed as 11-5349.)
Full Article: How urgent is the Section 5 issue? : SCOTUSblog.