Supreme Court to review Voting Rights Act

The court will review the law for the second time in three years.

by Jonathan Morris

As the election drama recedes, state and federal governments have returned to the process of actually doing what they are elected for: governing. Last Friday, just days after voters across the nation cast their ballots, the Supreme Court granted a writ of certiorari for a case reviewing the constitutionality of the Voting Rights Act of 1965 âÄî again. The Court most recently heard arguments on the case in 2009âÄôs Northwest Austin Municipal Utility District No. 1 v. Holder. The crux of the case against the VRA lies in an argument that Section 5 of the VRA, which requires that changes to voting qualifications or the procedures for voting obtain preclearance from the federal government in states that had less than 50 percent participation of the voting age population, is unconstitutional. This distinction is a way of designating states with a history of discriminatory practices in voter registration . In an 8-1 opinion, the Court avoided making a constitutional ruling on Section 5 in 2009 by ruling that the utility district was eligible for exemption from Section 5 because it had met requirements outlined in Section 4. However, in the opinion, written by Chief Justice John Roberts, the Supreme Court indicated that Section 5 did raise concerns due to substantial federalism costs and issues of equal protection. In Shelby County, Alabama v. Eric Holder, the case the Supreme Court decided to hear this year, the petition for certiorari presents questions specifically at the constitutionality of Section 5 âÄî not about the ability to receive an exemption as the 2009 case did. It rejected a similar petition in the case of Nix v. Holder, which raised similar constitutionality questions but also issues of whether the case was moot due to actions taken by the Justice Department withdrawing preclearance objections that would have complicated the case and the ruling required. In granting the simpler request of Shelby County v. Holder, the Supreme Court seems to have indicated that it intends to finally rule on the constitutionality of Section 5. With voter ID referendums on many ballots, allegations of voter fraud and voter suppression and six-hour lines at the polls in some states this year at the forefront of the election discussion, this topic is certainly controversial, but a review of Section 5 is not without merit. Requiring certain areas to obtain preclearance and not others raises serious concerns about equal protection. And despite Section 5âÄôs protections, Florida managed to purge their voter rolls of names of felons from other states âÄî often different than the people the state disenfranchised. Regardless of the outcome of the decision on Section 5, Section 2 of the Voting Rights Act, which prohibits voting discrimination, will stand. Only the ability of the federal government to effectively prevent it before it happens is under fire. Perhaps the easiest way to bring Section 5 into compliance with the Constitution would be to remove the clauses limiting it to the few states it applies to, thereby applying equal protection to all under Section 5. In fact, Roberts and Justice Samuel Alito asked this during oral arguments in 2009: Why did Congress fail to simply apply it to all 50 states? Striking down only those clauses would certainly fit with RobertâÄôs creative view of judicial restraint. The truly judicial conservative position attempts to do as little as possible, leaving legislation to legislators âÄî perhaps here expanding the protection is the conservative path. Jonathan Morris welcomes comments at [email protected].