(Un)Civil Rights: Racial voting protections no longer needed?

February 8, 2012

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.)

For the first week’s post on Texas’s redistricting lawsuit, click here.

Last week, I wrote about the disappointment brought to opponents of Section 5 of the Voting Rights Act (VRA) by Perry v. Perez, a recent U.S. Supreme Court decision.

This disappointment stems from the Court’s decision to decide the case on narrow grounds, and decline to consider the constitutionality of Section 5 itself.

However, the states affected by the provision, which prohibits any changes to state voting laws without federal approval, dislike Section 5 so much that they aren’t likely to rest their hopes of overturning it on one single legal avenue.

Moreover, they aren’t likely to limit their attempts to legal disputes that only indirectly address the issue.

Enter: Shelby County, Alabama v. Holder.

In 2010, Shelby County filed suit against the U.S. Attorney General, claiming explicitly that the Act is unconstitutional.

Unconstitutional how?

Shelby County claims that U.S. Congress lacked the authority under the Constitution to re-authorize Section 5 for another 25 years in 2006.

A little background is needed here.

When Section 5 of the VRA was originally passed in 1965, it was scheduled to last for only five years.

To re-authorized the provision, Congress was to make findings on any racially discriminatory voting practices that exist in the covered jurisdictions, and determine whether Section 5’s preclearance requirements are still needed.

Congress reauthorized Section 5 in 1970, and three times thereafter in 1975, 1982, and 2006, each time finding that voting discrimination in the covered jurisdictions had remained high.

Why does Congress need to make findings that racial discrimination practices in voting exist?

Because Congress’s authority to impose such burdens on the states comes from the Fifteenth Amendment (check out last week’s Legal History post on it), which specifically grants Congress the authority to prevent racial voting discrimination through legislation.

Therefore, if there’s no finding of racially discriminatory voting practices, there’s nothing for Congress to enforce under the Fifteenth Amendment.

Shelby County argued, in short, that the conditions had improved since Section 5’s enactment in 1965 and re-authorizations in 1970 and 1975 such that Section 5 was no longer required.

The court didn’t agree, and instead deferred to Congress’s findings from 2005 and 2006, comprising more than 15,000 pages of “statistics, findings by courts and the Justice Department, and first-hand accounts of discrimination.”

Consequently, the court upheld Section 5.

That decision is anything but the end of the case, since Shelby County filed for appeal on November 1, 2011, and Court of Appeals already heard oral arguments on January 19, 2012.

Though it’s not a sure thing, the Court of Appeals is likely to affirm the district court’s ruling, simply because courts are quick to defer to the legislature, especially when there’s such a large evidentiary record to support Congress’s findings.

Whether the Supreme Court will follow the same path is a different matter, should the case get that far.

I say this because of a small section of the Supreme Court’s 2009 case Northwest Austin Municipal Utility District No. 1 v. Holder, which raises some potential constitutional concerns with Section 5.

Nonetheless, the Court still avoided the issue and decided the case on narrower grounds.

Such a result may not be possible with Shelby County, since the central issue of the case is the constitutionality of Section 5, and the Supreme Court will be forced to take a stance.

If, though, the Court of Appeals upholds the district court’s ruling, the Supreme Court will seize on the opportunity to let existing precedent stand and deny any petition for review.

In other words, the Supreme Court will do what it does best: punt the issue until another day.