The Voting Rights Act of 1965 will be on trial again when the United States Supreme Court on Feb. 27 hears Shelby County, Alabama v. Holder, a case that challenges the very heart of the law.
In April 2010, Shelby County, Ala., a largely White suburb of Birmingham, Ala., filed suit in federal court asking that Section 4 and 5 of the Voting Rights Act be declared unconstitutional.
Section 5 requires jurisdictions with a history of discrimination against minority voters to prove that any change in election law or practice “does not have the purpose and will not have the effect of denying or abridging the right to vote on account of race or color.” Any such changes have to be approved by federal authorities before they can be enacted. Section 4 provides the formula to determine which jurisdictions should be covered under the law.
Shelby County lawyers argued in their Supreme Court brief that Congress exceeded its constitutional authority in 2006 when it reauthorized Section 5 for another 25 years, saying that many of the barriers to the ballot box had been torn down or circumvented, negating the need for such burdensome requirements.
“Section 5 exacts a heavy, unprecedented federalism cost,” the plaintiff’s brief read. “And Section 4(b)’s coverage formula ‘differentiates between the States, despite our historic tradition that all the States enjoy equal sovereignty.’”
Voting rights groups are calling the case an attack on what has been the “most powerful and effective civil rights act in U.S. history,” according to Laura Murphy, director of the ACLU's Washington Legislative Office.
The ACLU and groups such as the Lawyers’ Committee for Civil Rights Under Law and the NAACP Legal Defense Fund have filed amicus briefs or are representing other parties in the case. They refute Shelby County’s claim that voting discrimination has been lessened enough to justify the elimination of Section 5.
“Congress compiled a voluminous record, documenting the persistence of voting discrimination before it extended the Voting Rights Act…in 2006,” Steve Shapiro, ACLU’s legal director, said in a teleconference on Feb. 21.
“While there is no doubt that progress has been made since 1965, the last election vividly showed that voter suppression and voting discrimination are not just problems of the past but [also] problems of the present that continue to undermine our democratic process,” Shapiro added.
Barbara Arnwine, president and executive director of the Lawyers’ Committee, elaborated on some of the challenges to voting that Section 5 was instrumental in combatting.
“Just in the last year, because of Section 5, Texas was prevented from implementing redistricting plans that were adopted with discriminatory intent,” she said. Section 5 was also used to stymie Texas’ restrictive voter identification law that disproportionately disenfranchised young, elderly and minority voters; and to block Florida from reducing early and weekend voting hours, which have been traditionally used by minority voters.
“Section 5 is the great protector,” Arnwine said.
The advocates seemed confident that the Supreme Court would rule in their favour—the Supreme Court has upheld the law four times since 1965.
“Section 5 is clearly constitutional and even a conservative court should uphold it if it is faithful to its own precedent,” Shapiro said.