The Fifteenth Amendment prohibits racial discrimination in voting and expressly empowers Congress to enforce this guarantee, which it has done primarily through the passage and repeated reauthorization of the Voting Rights Act. Recent events only bolster Congress’ repeated invocation of its express constitutional power to protect the right to vote free from racial discrimination. In Shelby County v. Holder, an Alabama county, joined by a host of conservative states, including Alabama, Georgia, Texas and South Carolina, and right-leaning legal groups as amici curiae, are urging the Supreme Court to review the case and strike down a key part of the Voting Rights Act as beyond the scope of Congress’ power to enforce the Fifteenth Amendment’s prohibition on racial discrimination in voting. The core of the conservative attack on the “preclearance” requirement of Section 5 of the Voting Rights Act (which requires jurisdictions that have a history of engaging in racial discrimination in voting to obtain federal permission before altering their voting laws and regulations) is that this strong medicine is now outdated and unnecessary. In reauthorizing the Act in 2006, Congress disagreed, amassing a 15,000-page legislative record demonstrating that racial discrimination in voting continues to exist and remains concentrated in jurisdictions covered by the Voting Rights Act’s preclearance requirement.
In the last few weeks, in a trio of unanimous rulings by three separate three-judge District Courts in Washington D.C., judges across the ideological spectrum have unanimously applied the Voting Rights Act’s preclearance provision to strike down new voting measures designed to suppress the vote and dilute the voting power of racial minorities, concluding that these voting changes would cut back on minority voting rights. These rulings provide critical new evidence of precisely why preclearance is still a much needed tool to protect the right to vote free from racial discrimination. Without the Voting Rights Act in place, African American and Hispanic voters in states such as Texas might be denied their constitutional right to cast a ballot on election day.