Tag Archives: Voting Rights Act

For backers of the Voting Rights Act, Wednesday was a gloomy day at the Supreme Court. The court’s five Republican-appointed justices seemed to be leaning strongly toward a ruling striking down a provision in the 1965 law that has been a key tool for the federal government to block redistricting plans and changes to voting procedures that could interfere with or dilute minority voting. The pre-clearance process that was the subject of oral arguments before the justices applies in most or all of nine states and portions of seven others. The fact that provision applies to some parts of the country and not others was the focus of much of the jousting in court. The best many supporters of the law could muster to retain hope about the court’s ruling was that just four years ago the law defied expectations and survived intact when the justices used a kind of end-run to avoid upending the landmark civil rights statute.

Editorials: The “Law” of Perpetuating Racial Entitlement | Spencer Overton/Huffington Post

I attended the oral argument in the Voting Rights Act case before the U.S. Supreme Court, and I came away even more convinced that the Court should uphold the contested parts of the law. Section 5 of the Voting Rights Act requires that covered states “preclear” their proposed election law changes with federal officials. Nine states plus parts of seven others are “covered,” and many of these areas are in the South. Conservatives often complain about “activist judges legislating from the bench.” But some of the more conservative Justices’ comments reveal that the fate of the Voting Rights Act should be a decision for Congress, not for the Court. Justice Scalia said he thinks Congress’s decision in 2006 to renew Section 5 was motivated by a “perpetuation of racial entitlement.” It was the kind of political screed you might hear from Rush Limbaugh. Scalia’s baseless platitude could just as easily be made in the opposite direction–someone could claim Scalia wants to strike down voting protections to “perpetuate racial entitlement” whites have enjoyed for centuries. Neither assertion is appropriate in a court of law.

Editorials: The court’s conservatives seem to believe that the Voting Rights Act has outlived its purpose | Slate Magazine

If you’re trying to cure an illness, and you get better, but not entirely—say you had a high fever, but now you have the sniffles and a sore throat—does it make sense to keep taking the same medicine? What if your doctor insists? Justice Stephen Breyer offered the disease analogy Wednesday morning for racist efforts to block the power of black and Hispanic voters in the South during a sharply polarized argument—5 to 4, conservatives v. liberals—over whether Shelby County, Ala., has taken enough medicine from Section 5 of the Voting Rights Act. Congress first enacted the Voting Rights Act in 1965 to deal with massive and violent suppression of black voters in the South. The problem was so entrenched that when federal courts would strike down a discriminatory measure like a poll tax, Southern states and counties would quickly dance around the ruling, enacting new barriers such as a literacy test. So Congress armed the Voting Rights Act in two ways. The first, Section 2, bans any voting practice that discriminates on the basis of race or ethnicity. It applies uniformly, throughout the country, and it has no expiration date. To enforce it, the government, or a group or person affected by the law, has to sue—and has the burden of proof. The second part of the Voting Rights Act, Section 5, relied on data showing a pattern of discrimination at the time to create a category of “covered jurisdictions.” Congress said that for 25 years the Department of Justice had to “pre-clear” any changes to voting rules in those places, or else the state or county had to go to court for approval before the changes could go into effect. The list of covered jurisdictions included most of the South, along with a smattering of counties and cities in other states.

Editorials: Congress’s Power to Protect the Vote | NYTimes.com

The voter ID laws and other tactics that sprang up in several states last year to prevent minorities from casting their ballots offer incontestable proof of the need for strict voting rights laws. Yet at the argument on Wednesday in Shelby County v. Holder, the Supreme Court’s conservative justices left the ominous impression that they were willing to deny this reality and repudiate Congress’s power to enforce the right to vote by striking down a central provision of the Voting Rights Act of 1965. Section 5 of the Voting Rights Act requires nine states (seven of them in the South) and parts of seven others with records of extreme discrimination against minority voters to get approval from the Justice Department or a special court in Washington before they can make any changes in how they hold elections. Without this provision, there would be no way to prevent new and devious efforts by local officials to block blacks and Hispanics from voting or to reduce their electoral power. In 2006, Congress overwhelmingly reauthorized the statute. It found that these places should remain “covered” by this “preclearance” requirement because voting discrimination remained both tangible and more concentrated and persistent in them than in other parts of the country. House members from those places strongly supported the renewal: of 110 members from covered jurisdictions, 90 voted for reauthorization.

National: Conservative Justices Voice Skepticism on Voting Law | NYTimes.com

A central provision of the Voting Rights Act of 1965 may be in peril, judging from tough questioning on Wednesday from the Supreme Court’s more conservative members. Justice Antonin Scalia called the provision, which requires nine states, mostly in the South, to get federal permission before changing voting procedures, a “perpetuation of racial entitlement.” Chief Justice John G. Roberts Jr. asked a skeptical question about whether people in the South are more racist than those in the North. Justice Anthony M. Kennedy asked how much longer Alabama must live “under the trusteeship of the United States government.” The court’s more liberal members, citing data and history, said Congress remained entitled to make the judgment that the provision was still needed in the covered jurisdictions. “It’s an old disease,” Justice Stephen G. Breyer said of efforts to thwart minority voting. “It’s gotten a lot better. A lot better. But it’s still there.” Four of the nine-member court’s five more conservative members asked largely skeptical questions about the law. The fifth, Justice Clarence Thomas, did not ask a question, as is typical.

National: Supreme Court Likely to Strike Down the Voting Rights Act’s Section 5 | The Daily Beast

Will the Supreme Court strike down what President Lyndon Johnson called “one of the most monumental laws in the entire history of American freedom”? That is the question before the justices on Wednesday, when they will hear a challenge to the constitutionality of a key provision of the Voting Rights Act. Enacted in 1965, it was designed to end, once and for all, the long, ugly history of racial discrimination in voting in America. The law, widely recognized as a remarkable success, was reauthorized in 2006 in a near-unanimous vote in Congress. As Americans have come to recognize, however, the only votes that really matter are those of the justices of the Supreme Court. And there’s every reason to suspect that five justices will vote to strike down one of the law’s most important provisions. That provision is known as “Section 5,” and it requires jurisdictions with a history of racial discrimination in voting to obtain the approval of the Department of Justice or a special court in Washington, D.C., before adopting any change in their voting rules. If one of these covered jurisdictions wants to move away from single-member districts to an at-large election, as several tried to do to reduce the voting strength of racial minorities, or change the voting hours, that change has to be “precleared” before going into effect.

National: Key provisions of Voting Rights Act appear in jeopardy after high court argument | NBC

Central parts of an election law dating back to the civil rights struggles of the 1960s, the Voting Rights Act, appeared to be in jeopardy Wednesday after the Supreme Court heard oral arguments in a challenge to them. NBC’s Pete Williams reported after the oral argument, “I think it’s a safe prediction to say that the Voting Rights Act, as it now stands, is not going to survive. The question is: how far will the Supreme Court go in striking parts of it down?” Williams said what seemed to concern a majority of the justices was “the fact that the law is too backward looking.” The justices were weighing an appeal from Shelby County, Ala., asking the court to find that Congress exceeded its power when it renewed the two key sections of the law in 2006. Under Section 5 of the law, nine states, mostly in the South, but also including Alaska and Arizona, as well as dozens of counties, townships, cities, and elected boards in other states, must get permission, or “preclearance,” from the Justice Department or a federal court in Washington for any change in voting procedures, no matter how small, that they seek to make.

National: What’s at Stake in the Voting Rights Act Battle | The Atlantic

As the Supreme Court prepares to hear arguments in a case challenging the Voting Rights Act of 1968, civil rights advocates are rising to support the anti-discriminatory law. But why? This hardly the first time that the 45-year-old law has been challenged. It’s been just four years since the country’s highest court stopped just short of striking down the Voting Rights Act altogether, choosing instead to make a decision on narrow grounds. On Wednesday, the justices will get a second chance in the case of Shelby County v. Holder — Shelby County is in Alabama — which seeks to determine if Congress overstepped its authority when it passed the 25-year-long renewal of the Voting Rights Act passed by Congress is 2006. In other words, the case should decide whether or not the Voting Rights Act is constitutional. This is a big deal for a lot of people.

National: Supreme Court to weigh ongoing validity of voting rights law | Reuters

The Supreme Court on Wednesday will consider whether to strike down a key provision of a federal law designed to protect minority voters. During the one-hour oral argument, the nine justices will hear the claim made by officials from Shelby County, Alabama, that Section 5 of the Voting Rights Act is no longer needed. The key issue is whether Congress has the authority under the 15th Amendment, which gave African Americans the right to vote, to require some states, mainly in the South, to show that any proposed election-law change would not discriminate against minority voters. Conservative activists and local officials in some jurisdictions covered by the provision have long complained about it, saying that it is an unacceptable infringement on state sovereignty.

National: Voting Rights Act: Is major portion outdated? Supreme Court to hear arguments | CSMonitor.com

It is recognized as the most powerful and effective civil rights law in American history. So why is the US Supreme Court being asked to declare a major portion of the landmark Voting Rights Act of 1965 unconstitutional? On Wednesday, the high court is set to take up a legal challenge filed on behalf of Alabama’s Shelby County, alleging that Congress overstepped its authority when it voted overwhelmingly in 2006 to reauthorize Section 5 of the Voting Rights Act (VRA) for 25 years. At issue in the case, Shelby County v. Eric Holder (12-96), is a section of the law that gives the federal government extraordinary power to prevent state and local governments from discriminating against minority voters by undercutting their political clout in elections. In 1965, when the VRA was first enacted, many states, particularly in the Deep South, were actively working to prevent black and other minority voters from effectively exercising their right to vote. They had done it for decades through threats of violence, poll taxes, and literacy tests. Congress outlawed those blatant tactics, but the discrimination continued in more creative and subtle ways.

National: Supreme Court raises doubts about Voting Rights Act | USAToday

Conservative justices who hold a slim majority on the Supreme Court expressed grave doubts Wednesday that the landmark Voting Rights Act of 1965 — the crowning achievement of the civil rights movement — remains constitutional nearly a half century later. The justices who could be the swing votes in an eventual ruling suggested that an outdated formula built into the law now discriminates against the South, much as Southern states discriminated against black voters by erecting barriers such as poll taxes and literacy tests. “Is it the government’s submission that the citizens in the South are more racist than the citizens in the North?” Chief Justice John Roberts asked Solicitor General Donald Verrilli, who argued that the law should remain intact. Roberts noted that Massachusetts has the worst black turnout in elections when compared with whites — and Mississippi the best. Although the more liberal justices defended Section 5 of the law, which requires all or parts of 16 states to clear any voting changes with the federal government, at times the die appeared cast inside the marble courtroom. That could mean a decision by June rendering that provision unconstitutional or sending it back to Congress.

Editorials: America Is One Step Closer to Neutering the Voting Rights Act | Andrew Cohen/The Atlantic

You could say that the call was made even before the polls closed. It was made with great clarity before the end of the scheduled hour of oral argument at the United States Supreme Court in Shelby County v. Holderby the folks at Scotusblog, the most popular and prestigious website covering the Court. It was presented in 140 characters or less to the world in the form of a Tweet: “Update from argument: VRA Sec 5 almost sure to be invalidated 5-4. Congress will have to reconsider the preclearance formula.” There are some instances where oral argument is useless in determining how a case will turn out. This does not figure to be one of those times. There look to be five votes to strike down the section of the law that requires officials in some jurisdictions to prove to the satisfaction of federal officials that their voting laws and redistricting rules do not discriminate against minority voters. We can be reasonably certain about this not just because of the questions and the answers offered up Wednesday but also because of the history of the Roberts Court and the Voting Rights Act. Chief Justice John Roberts, who campaigned against the law 30 years ago as a young Justice Department official, isn’t going to save the statute the way he saved the Affordable Care Act last June. Justice Clarence Thomas declared four years ago that it had to go. Justice Antonin Scalia on Wednesday declared the most successful anti-discrimination law in American history the perpetuation of a “racial entitlement.” Justice Samuel Alito echoed on Wednesday many of the same concerns he expressed during argument four years ago in a Section 5 case out of Texas. That’s four votes. The fifth would be Justice Anthony Kennedy, the least conservative of the five Republican appointees. Lyle Denniston, a reporter who has daily covered the Supreme Court since before the passage of the 1965 law, wrote Wednesday of some wiggle room he perceived in a comment Justice Kennedy made about how the plaintiff in the case — Shelby County, Alabama — may not be in proper position to challenge Section 5 (or the preclearance coverage formula of Section 4) because of its past record of voting discrimination.

Editorials: Argument recap: Voting law in peril — maybe | SCOTUSblog

Sometimes, in a Supreme Court argument, a single phrase can speak volumes. Justice Anthony M. Kennedy, the one member of the Court who bore the most watching because the other eight seemed clearly to divide evenly, used the phrase “trusteeship of the United States government” as a shorthand way to describe how he views the regime set up by the Voting Rights Act of 1965 works. Of course, he meant it as a denunciation. If Kennedy believes that there is no way to justify any longer that kind of oversight of nine states that have to do the most to obey the 1965 law, that law may well be doomed. But it also was Kennedy who left the impression that he might be willing to go along with a potential way to short-circuit the case of Shelby County v. Holder, and allow the law to survive for some time more. The argument Wednesday in one of the most important cases of the Court’s current Term — a hearing that ran seventeen minutes longer than the allotted hour — left no doubt that four of the Justices (and maybe Kennedy with them) are just as troubled as they were four years ago when they last lambasted the selective enforcement approach mandated by history’s most successful civil rights law. Equally, there was no doubt that four Justices — including the two newest members — were prepared to let Congress have its way with the twenty-five-year extension of the law.

Editorials: The Voting Rights Act’s work isn’t finished | The Washington Post

The 1965 Voting Rights Act remains one of this country’s foremost accomplishments. Constitutional amendments following the Civil War barred states and localities from abridging the right to vote on the basis of race, yet for the better part of a century, white racists managed to stay a step ahead of the federal government’s enforcement of these protections. The Voting Rights Act was designed to stamp out the varied and shifting strategies local officials used to prevent African Americans from voting. On Wednesday the Supreme Court will consider whether the Voting Rights Act has worked so well that its toughest rules have now outlived their time. Provisions of the act require certain states and localities with a history of discrimination to clear any proposed change in voting rules with the federal government. Shelby County, Alabama, claims that immense progress since 1965 in rooting out official discrimination renders pre-clearance an unwarranted burden on those jurisdictions that must comply, unjustifiably subjecting some states to unequal treatment and violating their constitutional prerogative to regulate elections within their borders.

Editorials: Supreme Court should uphold Voting Rights Act | Baltimore Sun

Much has changed in America since the Voting Rights Act of 1965 was first approved, and we can’t blame those living in the 16 states that must get approval from the Justice Department or a federal court in order to revise their election laws for feeling the weight of history. The Deep South of the 21st century is not the same as the days of poll taxes, literacy tests and assassinated civil rights leaders. But how different is it today from seven years ago? That’s when Congress last renewed one of this country’s most important pieces of civil rights legislation — including the section that places this burden of proof on states with long histories of suppressing minority voters. It wasn’t even close, nor was it partisan. The House and Senate voted 390 to 33 and 98 to 0, respectively, to extend the law by another 25 years, the fourth extension since 1965. More than anything else, that fact should weigh heavily as the Supreme Court on Wednesday considers the case brought by Shelby County, Ala., where officials regard the pre-clearance requirement as an unconstitutional burden. Courts have upheld the Voting Rights Act numerous times over the years (including in the Shelby case), so surely such an argument must turn on the claim that the basic patterns of life in places like Alabama have changed completely. Yet couldn’t the Congress of 2006 somehow have picked up on that?

Alabama: Alabama, birthplace of the Voting Rights Act, may be its final resting place, too | MSNBC

If the Supreme Court strikes down a key provision of the 1965 Voting Rights Act this year, it will largely come as the result of events that began in Shelby County, Alabama, where a disputed city council election has thrown into doubt the future of a landmark law that stops state and local governments from making it hard for minorities to vote. Long-time Shelby County resident Frank Ellis is the attorney who brought the suit, which the Supreme Court will hear Wednesday. In his argument:
“The South has changed, it is not the same as it was in 1964…The whole country has changed, we are a dynamic society, not just in Alabama, but everywhere.” Indeed, one need look no further than the results of the most recent national elections for evidence of just how “dynamic” a society this is. For some reason, Chief Justice Roberts decided only a few days after the president’s re-election to revisit an issue he had ducked just three years earlier in a case which bears the imposing title, “Northwest Austin Municipal Utility District No.1 vs. Holder.”

National: Supreme Court to take key voting rights case | Washington Times

The Supreme Court this week will take up a potentially landmark case that could end almost five decades of Justice Department intervention that gives the federal government control over voting decisions in states and localities with a history of discrimination. Shelby County, Ala., is challenging a key provision in the 1965 Voting Rights Act that requires all or parts of 16 states with a history of discrimination in voting to get federal approval before making any changes in the way they hold elections. If successful, the challenge, which the high court will hear Wednesday, would strike down a major legislative tenant of President Lyndon Johnson’s civil rights legacy — though it’s one many argue is outdated and unnecessary.

National: Defeating Voting Rights Act Would Give Conservatives A Big Win | TPM

When the Supreme Court hears oral arguments Wednesday on the Voting Rights Act, opponents will argue that a centerpiece of the law aimed at letting the federal government proactively thwart attempts at voter discrimination has outlived its validity. “The only reason Section 5 was originally justified and upheld by the courts was because of Jim Crow — the unusual circumstances at the time in terms of voter disenfranchisement,” Ilya Shapiro, the editor-in-chief of the Cato Supreme Court Review who filed an amicus brief in the case, told TPM. “I don’t think there’s a way to justify Section 5 anymore.” Section 5 of the Voting Rights Act requires state and local governments across 16 states — mostly in the South — to seek preclearance from the Justice Department or a federal court before making any changes to their laws which affect voting. Shapiro said the point of the lawsuit is that residents in each of the covered jurisdictions are being treated unfairly.

Editorials: The Roberts Court vs. Voting Rights | David Cole/New York Review of Books

What happens when a Supreme Court ostensibly committed to judicial restraint confronts a long-standing civil rights statute that offends its conservative majority’s sense that law should be colorblind, even if the world is not? That question will be front and center when the Court hears arguments Wednesday in Shelby County v. Holder, a case challenging the constitutionality of a central provision of the 1965 Voting Rights Act. The provision, known as Section 5, requires nine states, mostly in the South, and select jurisdictions in seven other states, to obtain federal approval for any change in their voting laws. Congress concluded that this was necessary to ensure equal opportunity in voting. But conservatives in some of the southern states have long complained that the law gives the federal government too much power, and now, Shelby County—a largely white suburb of Birmingham, Alabama found guilty of racial discrimination in voting as recently as 2008—has sued the US government to get it annulled. If the Supreme Court majority exercises restraint, it will acknowledge that Section 5 falls within Congress’s constitutionally assigned authority to enforce rights of equal protection and voting. But if the Court chooses to impose its own view of racial justice—according to which laws should be drafted without regard to race, even if race-conscious efforts are needed to forestall discrimination—it will invalidate a core part of one of the country’s signal civil rights laws. The Court has frequently reviewed the Voting Rights Act since its initial enactment, and has until now always upheld it. But this time around, the result could well be different. It shouldn’t be.

Editorials: Who controls Voting Rights? | Richard L. Hasen/The Great Debate (Reuters)

On Wednesday the Supreme Court is set to hear oral arguments in Shelby County v. Holder,challenging the constitutionality of a key part of the Voting Rights Act. But in the wide public debate about this case, we are getting to the point where — as election law scholar Pam Karlanhas noted — everything has been said, but not necessarily by everybody. In addition to this Reuters symposium on “If the Court Strikes Down Section 5,” other symposia, commentaries and op-edshave considered whether the act still serves a vital purpose; whether the court should strike it down; and what should replace it if the court rules that Congress went too far in requiring certain states to continue to get federal permission when making changes in any voting rules until 2031. Even President Barack Obama has weighed in, urging the court to keep the act in place. He said the best way to protect voting rights is by having the federal government review voting changes before they can be implemented, to ensure that changes don’t make protected minority groups worse off. So it is worth taking a step back to look at the larger question of why this is a decision for the Supreme Court to make and not the political branches. After all, even back in 1965, Section 5 was “strong medicine.”

Editorials: Judging the Voting Rights Act – The Supreme Court should not substitute its judgment for Congress’ on voting rights | Los Angeles Times

Rightly regarded as one of the most lustrous legacies of the civil rights movement, the Voting Rights Act of 1965 outlaws discrimination in voting nationwide, but it also requires that states with a history of denying minorities the right to vote obtain the approval of a federal court or the U.S. Justice Department before changing election procedures. This “preclearance” provision, contained in Section 5 of the act, has been repeatedly reauthorized by Congress — most recently in 2006, when it was extended for another 25 years by margins of 390 to 33 in the House and 98 to 0 in the Senate. Between 1982 and 2006, the Justice Department used the preclearance process to block the enforcement of more than 2,400 voting changes on the grounds that they would undermine minority voting rights. Yet this proven protection may be on constitutional life support. On Wednesday, the Supreme Court will hear arguments in a case from Alabama that challenges Section 5 and the formula by which nine states, mostly in the South, and parts of seven others (including California) are required to obtain preclearance when they redraw district lines, modify registration procedures or change any other practice that might disadvantage minority voters. Supporters of the Voting Rights Act fear that conservative members of the court — and perhaps not only conservatives — are poised to rule that the law violates the prerogatives of states that no longer practice the sort of blatant discrimination that inspired the original legislation.

Alabama: What Is Alabama’s Problem With the Voting Rights Act? | The Nation

History will repeat itself in the chambers of the Supreme Court this week. The very state where the fight for voting rights reached its critical peak nearly 50 years ago is once again at the center of the dispute over democracy in America. But oddly, the political and legal odds may now be tilting away from civil rights and back toward an era in which the federal government had limited power to protect voters of color in the South from the machinations of local leaders. The Supreme Court will hear arguments on Wednesday from an Alabama county that is challenging the constitutionality of Section 5 of the Voting Rights Act. That section protects voters of color in sixteen states (some fully covered, some partially), many of which have long brutal histories of denying black Americans their voting rights. It does this by making covered jurisdictions “preclear” election law changes with the federal government before implementation.

Editorials: Alaska state leaders prefer cooked map to protecting Native voters | Shannyn Moore/Anchorage Daily News

The federal Voting Rights Act goes on trial this week. It was enacted in 1965, because some people were working really hard so some other people couldn’t vote (that’s a nice way to say they were “racists”). The federal government finally agreed to make sure that everyone with a constitutional right to vote would be allowed to vote, despite the bigots running state and local governments. In 1975, Alaska’s congressional delegation ensured that we were added to the list of states protected — because Alaska Native voters who didn’t speak or read English were being disenfranchised. Again, in 2006 under Republican rule, the Voting Rights Act was re-authorized by Congress to cover Alaska. Twenty languages spoken by First Alaskans were excluded from the ballot or voting information. Now Shelby County, Ala., is suing to get out from under federal oversight of voting rights. It beat Alaska to the punch. There’s also an Alaska vs. Holder suit pending, filed in August. Our state’s case, which has been stayed, will rise or fall with the decision of the Supreme Court in Shelby vs. Holder.

National: Messaging Ramps Up Before Key Voting Rights Case | Roll Call

A steady drumbeat of press briefings and messaging events is reaching a crescendo as the Supreme Court prepares to hear arguments Wednesday in a case that questions whether a key provision of the Voting Rights Act of 1965 is still needed. Briefing breakfasts, afternoon seminars, information sessions on the Hill and a coordinated bus campaign that mimics the Freedom Rides of the 1960s all focus on influencing the outcome of Shelby County v. Holder. “While the justices play a distinct role in our society and in our country, they’re not divorced from society at large. I can’t see how they couldn’t be influenced by what people think about their actions,” said Ellen Buchman, vice president of field operations for the Leadership Conference on Civil and Human Rights, which is planning a rally during Wednesday’s oral arguments.

National: Experts Debate Effects of Voting Rights Act Provision on Native Americans | The Blog of Legal Times

Days before the U.S. Supreme Court was set to hear arguments in Shelby County v. Holder, a case challenging the constitutionality of Section 5 of the Voting Rights Act, legal experts said they feared that striking it down would hurt Indian Country and Native American voters. Enacted in 1965 as a temporary provision, Section 5 freezes election practices or procedures in certain states and local governments, mostly in the south, until the new procedures have been subjected to review or “precleared” by the Justice Department or a federal court. Congress has since reauthorized Section 5 four times. Currently, it is set to expire in 2031. In order to make changes to their voting rules, the states in question must demonstrate that the rules do not have the purpose of discriminating — or that regardless of intent, that the new rules will not have a discriminatory effect — based on race or color, or against a “language minority group,” including persons who are American Indian, Asian American, Alaskan Natives, or of Spanish heritage.

Editorials: Voting Rights Act Case Pits the Rights of Humans Against the ‘Sovereignty’ of States | Garrett Epps/The Atlantic

Shelby County v. Holder, the Voting Rights Act case the Supreme Court will hear Wednesday, is a peculiar case. Its oddity is this: no one on either side contests that Congress has the power to enact a provision like § 5, the provision at issue here. And no one on either side questions that § 5 does what it was designed to do: keep the ballot box and the political process open to formerly excluded minority voters. The Act, in other words, isn’t broken. Nonetheless, argue the plaintiffs, this key provision must be scrapped. To understand why, consider this sentence from the Petitioners’ Brief filed on behalf of Shelby County, Alabama: “determining whether the formula is rational in practice is not a substitute for testing it in theory.” “The formula” is the heart of § 5, the so-called “preclearance” provision of the Act. As devised by Congress in 1965, the Act imposes a special requirement on states or parts of states that met two conditions during the 1964 election cycle. First, those jurisdictions employed a “test or device” for voting that had been shown to lead to racial exclusion from the vote; and, second, less than 50 percent of the eligible voters actually voted that year.

Editorials: Section 5: Making sure race is considered | Janai S. Nelson/The Great Debate (Reuters)

The Voting Rights Act has worked for almost 50 years to remove racial discrimination from the electoral process and prevent its return. Wednesday the U.S. Supreme Court is expected to hear oral argument on the constitutionality of Section 5, one of the act’s most powerful provisions. Section 5’s work is done, this argument goes, and the provision has outlived its usefulness. Yet some of Section 5’s most important work lies beyond its technical application. Section 5 requires that jurisdictions with a documented history of racial discrimination in voting seek federal approval for any voting changes. The aim is to ensure that new voting laws will not “retrogress” — or harm — minority voting rights. It subtly and constructively inserts race into electoral decision-making — creating a race consciousness among decision-makers that can often preempt discrimination. This deterrent effect, and its impact on the discourse of race in elections, may be Section 5’s most important — and unfinished — work.

Editorials: Push to overturn Voting Rights Act tied to GOP voter suppression efforts | MSNBC

The Washington D.C. lawyer representing the Alabama county that wants to strike down the heart of the most effective civil-rights law in historyspecialize in cases aimed at making voting harder for minorities. William Consovoy also last year argued on behalf of Republican officials in Florida and Ohio, who in both cases were seeking to significantly reduce the days allotted for early voting, which blacks take advantage of more than whites. Consovoy, a former clerk for Justice Clarence Thomas, is a partner at Wiley Rein, a Washington, D.C., law firm that bills itself as the best in the country for election law. Bert Rein, one of the firm’s principals, also is listed on court documents as representing the plaintiffs. The Supreme Court will begin hearing arguments in Shelby County v. Holder Wednesday. And the involvement of Consovoy and Rein in the case, which challenges the constitutionality of a key part of the Voting Rights Act (VRA), underlines the extent to which it’s a product of the broader partisan voter suppression campaign pushed by Republicans last year in a failed attempt to defeat President Obama.

Editorials: A ruling on racial progress | Jonah Golberg/Los Angeles Times