At 10 a.m. next Wednesday, the justices of the United States Supreme Court will hear oral argument in a case styled Shelby County v. Holder, one of the most anticipated of the current Term. Agreeing to review an argument made by an Alabama county that it ought finally to be free from one of the key requirements of the Voting Rights Act of 1965, the justices will have an opportunity both to lead and to follow the nation as it roils anew in political and legal battle over the rights of the poor, the ill, the young, the car-less, the black, the Hispanic, and the Native American to vote. Nearing its 50th birthday, the act has become a part of our national lore. One of the crowning achievements of the civil rights movement (and of the Johnson Administration), it was designed by its creators to finally give meaningful legal remedies to minority citizens — blacks, mostly, but not exclusively — who for generations had been precluded from voting (or from having their votes fairly counted) by a dizzying flurry of discriminatory state practices. The act didn’t just expand the scope of existing federal civil rights laws. It completely changed the dynamic between voters and state and local governments. And the results are indisputable: There is far less discrimination in voting today than there was half a century ago — and many millions more minority voters.
As a technical matter, the central question the justices have been asked to resolve in Shelby County is whether Section 5 of the Voting Rights Act, the “preclearance” provision which requires officials in certain jurisdictions to seek federal approval before any new election law may be imposed, is still a valid exercise of Congress’ power to enforce the Fourteenth and Fifteenth Amendments. If the Court says no, one of the act’s most valuable shields will be destroyed, and millions of Americans of color in 16 states will immediately have less legal protection from racially tinged voter laws and redistricting efforts. Surely the justices cannot be surprised that a nasty political war has broken out over the means and manner of voting. After all, the Court is largely responsible for it.
As a matter of timing, the Shelby County case comes to the Court less than one year after the justices narrowed the scope of Congressional power under the Commerce Clause even as a narrow majority upheld the Affordable Care Act. In Shelby County, the justices are similarly being asked by conservative lawyers and local officials to overrule the judgment of Congress that the core of the Voting Rights Act continues to be necessary to protect the rights of minority voters. That legislative judgment could hardly have been more clear: When the Act was last renewed in 2006 (the fourth such renewal since 1965), the margin was 390-22 in the House of Representatives and 98-0 in the Senate. And Congress’ renewal could hardly have been accompanied by more diligence. “Congress held 21 hearings, heard from scores of witnesses, and amassed more than 15,000 pages of evidence regarding ongoing voting discrimination in covered jurisdictions,”
Obama Administration lawyers have reminded the justices. Those findings, the feds now argue, are entitled to great judicial deference, even if imperfect, and even if the resulting legislation only covers certain portions of the country with a long history of discrimination in voting practices. Indeed, the current challenge comes to the Court immediately following an election season which reminded any reasonable observer that the right to vote is still very much an open question in America.
From 2010 to 2012, in red and blue states alike, restrictive new voter identification or registration laws were enacted — and promptly challenged in court. So too were dubious redistricting efforts. Many of the most nakedly partisan efforts were struck down or delayed by state judges. Other discriminatory voting rules and regulations were blunted in federal court by Section 5 of the Voting Rights Act itself — a sharp prebuttal to the argument that the provision has outlived its usefulness.