Voting Rights Act and the Supreme Court: What Happened Yesterday
Angelia Wade is an associate general counsel at the AFL-CIO. She sends us this takeaway of the opening oral arguments at the U.S. Supreme Court in the case of Shelby County, Alabama v. Holder. This is a case of extreme importance for voting rights advocates.
Yesterday, the U.S. Supreme Court heard oral arguments in the case of Shelby County, Alabama versus Holder. It was a spirited oral argument that drew clear and noticeable reactions from otherwise staid attorneys as we sat in the lawyers’ lounge, an area for attorneys licensed to practice before the Supreme Court but who are unable to get in the courtroom if the courtroom is at capacity, as it was yesterday. We could only hear the argument, not see the justices. The comment that received the most attention was made by Justice Antonin Scalia, who claimed the renewal of Section 5 of the Voting Rights Act represented the "perpetuation of racial entitlement”. He further insinuated that no one in Congress was going to vote against the renewal of Section 5 in 2006, (Section 5 was renewed 98-0 in the Senate and 390-33 in the House) because lawmakers did not want to lose votes. He stated, "Even the name of it is wonderful, the Voting Rights Act. Who's going to vote against that?" He further claimed, “I don't think there is anything to be gained by any senator to vote against continuation of this Act. And I am fairly confident it will be reenacted in perpetuity unless—unless a court can say it does not comport with the Constitution.” But this case is not about the court’s opinion of why senators or representatives vote the way they do, even if it is out of some kind of “political correctness” or fear.
Many still want to know what the Voting Rights Act is, and what Section 5 does in particular. Section 5 of the Voting Rights Act requires any covered jurisdiction to first obtain a determination by the U.S. District Court for the District of Columbia or the Attorney General that any changes to its voting procedures or laws do not deny or abridge the right to vote on account of race, color or membership in a language minority group.
. If the jurisdiction is unable to prove the absence of such discrimination, the proposed change will not go into effect. Private citizens can also bring suit against any jurisdiction under Section 2 of the Voting Rights Act but usually after the effect of the discrimination has been realized. Section 5 was created because states were moving faster in enacting discriminatory schemes than section 2 litigation could remedy. If citizens are left to champion their voting rights only through section 2, we are likely to slip back into a time when discrimination will be overt and rampant. Section 2 litigation is costly and time consuming. The conservative justices seems to forget that section 5 eliminates discrimination before it occurs by making sure that the covered jurisdiction’s actions are reviewed and not discriminatory before a crucial election takes place. Section 5, unlike section 2 has to be renewed every 25 years and was last renewed in 2006 after Congress reviewed mountains of evidence, conducted numerous hearings and concluded that the Act was still necessary to remedy the discrimination that was still pervasive in the covered jurisdictions.
Shelby County, Ala., covered by section 5, is a near all white community that claims jurisdictions covered by section 5 are being unfairly singled out since it doesn’t apply to all the states. Shelby County’s lawyer argued section 5 is unconstitutional because the coverage formula used to determine which states are covered is antiquated and that the south has changed. Interestingly, at the beginning of yesterday’s oral arguments, Justice Sotomayor stated that, assuming she accepted Alabama’s premise that the south has changed, Shelby County pretty much hasn’t changed and that they might be the wrong party to bring this suit as the county has been the subject of numerous section 2 cases and 240 discriminatory voting laws that were blocked by section 5 objections. Her comments drew a few snickers and smiles in the packed lawyers’ lounge. Justice Kagan then pointed out that under any coverage formula Congress could come up with, it would capture Shelby County, and so if the Act was working why change it.
If the issue really were that some states are covered when other states are committing similarly egregious discriminatory acts as the covered states, then perhaps more states should be covered by section 5, not fewer. It seemed Alabama wanted to focus on the racial gains that are the result of the law and time itself rather than the law’s purpose. Alabama claimed that the problems the Voting Rights Act was meant to address have been solved. As Justice Kagan asked Alabama’s attorney: Who gets to make the judgment that the problem has been solved, Alabama, the court, or Congress? Justice Kagan noted that she did not think it fell within the bailiwick of the court to decide whether racial discrimination has been solved and the attorney for Alabama acknowledged it is not he who decides. The logical answer and it has always been, is that it’s Congress who decides this. I wanted to applaud as Justice Kagan asked this question because that really goes to the heart of the case, in my opinion. It really comes down to deference to the determination that Congress made that Section 5 should be renewed. The court should not substitute its judgment for that of Congress. Congress, in this case, is in the best position to determine if racial discrimination in voting is at a point where section 5 is no longer needed because the problem of discrimination in voting has been remedied.
Indeed, the south has changed in many instances but we know that discrimination in exercising the right to vote still exists. One only has to look no further than the Texas and South Carolina voter ID laws that were not pre-cleared by the Department of Justice in 2012. The disease of discrimination and racism is not dead; it has just taken a different, more subtle form. Someday discrimination in voting may be eradicated, but for the moment it has not and as long as Congress reviews a record that shows section 5 is still necessary, it should be left in place and Congress’ judgment respected.
You can read the entire transcript from the hearing here .
Read more: Supreme Court to Hear Arguments to Overturn Vital Part of Voting Rights Act .
