Shelby County v. Holder: A new “states’ rights versus civil rights” debate

February 13, 2013

Civil Rights Theme(Editor’s note: February is Black History Month, and the struggle for civil rights is a big part of that history.  Throughout the month of February, we’ll be looking at contemporary civil rights disputes, especially legal ones.)

Week 1: Race-based admissions before and after Fisher

Later this month on February 27, the Supreme Court will hear oral arguments on Shelby County v. Holder, a challenge to the constitutionality of Section 5 of the Voting Rights Act of 1965.

Many scholars have labeled Section 5 the most successful civil rights law of all time.  What makes it so effective?

Because of how it operates: it requires certain jurisdictions (usually those with a history of racial voter discrimination) to acquire federal approval for any and all changes to their voting laws (discussed in more detail here and here).

The burden is on the jurisdictions seeking approval to demonstrate that the proposed changes do not have a discriminatory impact on minority voters – a far more stringent standard than Section 2 of the VRA, which not only places the burden on the government to demonstrate that a proposed voting change has a discriminatory effect, but further requires the government to actively bring suit against jurisdictions with allegedly discriminatory voting laws.

However, the same aspect of Section 5 that makes it so successful has also made it vulnerable to constitutional challenges: the law’s challengers are arguing that Section 5 is an unconstitutional overreach by the federal government that impinges on states’ rights.

Which parts of the Constitution does it allegedly violate?

The question contained in the Supreme Court’s grant of certiorari for the case lists it all succinctly:

Whether Congress’ decision in 2006 to reauthorize Section 5 of the Voting Rights Act under the pre-existing coverage formula of Section 4(b) of the Voting Rights Act exceeded authority under the Fourteenth and Fifteenth Amendments, and thus violated the Tenth Amendment and Article IV of the United States Constitution.

That may be a bit too succinct for most readers, so let’s break it down.

The “pre-existing coverage formula” used by Congress is simply the statutory formula to determine which jurisdictions should be subject to Section 5 oversight based on past and current racially discriminatory voting practices and laws.

The Fourteenth Amendment, which comes into play here thanks to the Supreme Court’s adding it onto the original cert petition, guarantees equal protection of the laws (the Equal Protection Clause).

The Fifteenth Amendment prohibits voter discrimination on the basis of “race, color, or previous condition of servitude.”

Both of these Amendments serve as the source of Congress’ authority to reauthorize Section 5, but, as stated above, the challengers to the law claim that this authority is insufficient because Section 5 violates two other sections of the Constitution: the Tenth Amendment and Article IV.

The Tenth Amendment reserves powers not delegated to the federal government by the Constitution to the states, and Article IV (specifically, Section 4 therein – the “Guaranty Clause”) is a requirement that the federal government “guarantee to every State…a Republican Form of Government.”

In short, the challengers to Section 5 are arguing that the federal government overstepped its bounds by giving itself effective veto power over all state and local government decisions related to voting, an area of governance normally viewed as a power delegated to the states by the Tenth Amendment.

In addition, the challengers argue that Section 5 violates the Guaranty Clause by preventing the covered jurisdictions from having an actual republican form of government, since all voting law changes are subject to federal government approval.

The other side of that argument asserts that, prior to reauthorizing Section 5 in 2006, Congress did extensive research into voting practices in the covered jurisdictions, and determined that, although Section 5 certainly helped matters, there was still a great deal of racial voter discrimination happening in these areas.

Thus, Shelby County appears to be a “states’ rights versus civil rights” argument, with the distinction that, since firehoses and police dogs are no longer being turned on civil rights demonstrators in Birmingham (Shelby County sits on the south end of the Birmingham metropolitan area), the need for such strong measures is no longer necessary.

We’ll find out whether the Supreme Court agrees by the end of its current term in June.