The Supreme Court recently heard oral arguments in an important case challenging the constitutionality of a landmark piece of civil rights legislation, the Voting Rights Act of 1965.
The case is a challenge, brought by a county in Alabama, to Section 5 of the Voting Rights Act, which requires certain states and local jurisdictions with a history of racial discrimination in the administration of elections to receive the approval of the federal Department of Justice for any change in their election laws to ensure that the changes do not have a discriminatory effect. The states subject to this “pre-clearance” requirement include a number of Southern states (Alabama, Georgia, Louisiana, Mississippi, South Carolina, Texas and Virginia). The act allows these jurisdictions to be removed from the list of those subject to pre-clearance if they can show that they have not engaged in any discriminatory election practices for a sufficient period of time. The plaintiff in the case cannot make use of this so-called “bailout” because it recently was found to have violated the act by means of a racially discriminatory redistricting.
The act also includes provisions that bar such discriminatory practices nationwide and permit those who encounter discrimination to bring a lawsuit.
The Supreme Court has heard several challenges to the Voting Rights Act in the decades since its passage, all of which it has rejected. In 1966, the Supreme Court upheld the act as constitutional, citing the power of Congress to legislate to prohibit racially discriminatory voting laws under Fifteenth Amendment. This Amendment was passed in the wake of the Civil War and provides that the “right of citizens of the United States to vote shall not be denied or abridged by the United States or by any state on account of race, color, or previous condition of servitude.” The Court noted in its decision that Congress was responding to an “insidious and pervasive evil which had been perpetuated in certain parts of our country through unremitting and ingenious defiance of the Constitution.”
The Voting Rights Act, which includes a provision that causes it to expire on a given date, has been re-enacted by Congress on every such occasion. Most recently, it passed by an overwhelming margin in 2006, including a unanimous vote in an otherwise very divided Senate that has endured years of partisan gridlock. Following each of these re-authorizations, the Supreme Court has rejected a legal challenge. In 2009, the Court upheld the most recent extension but hinted that it might change direction at some point, noting that “the South has changed” and the burdens imposed on states by Section 5 must be “justified by current needs.” The plaintiffs in this case took the hint and have brought a second challenge to the very same reauthorization.
In the oral arguments for the case, the plaintiff’s attorney, representing a county in Alabama, claimed that Southern racism was “an old disease, and that disease is cured. That problem is solved.” Justice Scalia went further, claiming that Section 5 is not only unnecessary, but itself discriminatory. With a lack of apparent irony, he went so far as to say that the act, rather than the problem it exists to solve, amounts to the “perpetuation of a racial entitlement.” Justice Sotomayor turned this Orwellian statement against the plaintiff’s attorney, asking him, “Do you think the right to vote is a racial entitlement in Section 5?” He answered, “No, the Fifteenth Amendment protects the right of all to vote.” That it does—and the failure of particular states to comply with it is the very reason that Congress passed the Voting Rights Act, including Section 5.
The plaintiff treats the Fifth and Fourteenth Amendments, which forbids the federal and state from discriminating against any person, as if it guaranteed equality to the states themselves, arguing that Section 5 discriminates against Alabama. The real problem, of course, is the way Alabama has been shown to discriminate against its own people; this is why the Voting Rights Act treats it differently in the first place. In any event, the Supreme Court rejected this argument in the first case challenging the act.
It appears, however, that Chief Justice Roberts, who has been on record as seeking to undermine the Voting Rights Act since his days in the Reagan administration, may get his wish. Many of those who observed the oral arguments feel that it is quite likely that the court will strike down Section 5 in its ruling. If it does so, the dominant five justice conservative majority on the Court would in effect be declaring that Congress was wrong to conclude that racial discrimination in elections remains a real problem, a reversal of their usual claim that judges should defer to lawmakers lest they be too “activist.”
If anything, Section 5 should be expanded nationwide. Voters have faced increasing, rather than decreasing, barriers to their right to vote in the last decade, and not just in the South. These difficulties were often quite intentionally created at the hands of laws passed by Republican-controlled legislatures to disenfranchise the poor, the young and minorities. If Section 5 is overturned, it would significantly weaken the federal government’s oversight powers to protect the right to vote for all in many of the places most likely to be hostile to these voters.
The Court is expected to issue a ruling in the case, Shelby County v. Holder, in June. Humanists and others in support of easier access to voting will be keeping a close eye on the decision.
Bill Burgess is the legal coordinator of the American Humanist Association’s Appignani Humanist Legal Center.