We are getting close to a decision in the Supreme Court on Shelby County, Alabama’s challenge to section 5 of the Voting Rights Act. This is the part of the VRA which requires jurisdictions (mostly, but not only in the South) with a history of discrimination in voting on the basis of race to get permission from the federal government (either the Department of Justice or a three-judge court in DC) before making any changes in voting rules and procedures. The changes can be as large as a redistricting plan for 10 years, and as small as moving a polling place across the street. Shelby County claims that the law now exceeds congressional power over the states, because there is not enough evidence of intentional state discrimination on the basis of race to justify this interference with state’s rights. This federalism argument notes how the South has changed—the question is whether it has changed enough for the Supreme Court to hold that an Act, which was once constitutional is no longer constitutional thanks to changed circumstances.
I predicted back in 2009 in the NAMUDNO case that the Supreme Court would strike down the Act on these federalism grounds. But the Court did not; instead it engaged in an act of mangled statutory interpretation to avoid deciding the constitutional issue. But the Court’s opinion was a shot across the bow to Congress, telling them to do something to fix the potential constitutional problem. In the interim, Congress has done nothing.
Full Article: My Prediction in the Shelby County Case | Election Law Blog.