Voting rights law gets high court challenge


Local ACS chapters hold panel discussion on future of the Act

By Steve Thorpe
Legal News

In anticipation of the U.S. Supreme court hearing oral arguments yesterday on Shelby v. Holder, the Michigan Chapter and Wayne State University Law School Student Chapter of the American Constitution Society presented the panel discussion “A Look at Shelby County: The Future of the Voting Rights Act.”

The panelists at the Feb. 25 event were Marcia Johnson-Blanco, co-director of the Voting Rights Project, and Ellen D. Katz, a professor of law at the University of Michigan Law School. Jocelyn F. Benson, interim dean at Wayne State University Law School and herself an expert on legal issues related to voting, acted as moderator.

Alabama’s Shelby County is challenging a provision that forces some areas of the country with a history of racial segregation to require approval for changes in electoral practices from the Justice Department or federal judges in Washington.

The Supreme Court heard arguments Wednesday in the case, which is considered among the most important of its current term.

“Shelby County in Alabama is now taking a ‘second bite’ at attacking the constitutionality of Section 5,” said Johnson-Blanco. “There’s no alternative claim, so the court now has to decide if Section 5 of the Voting Rights Act is constitutional.”

The Voting Rights Act of 1965 calls for federal monitoring of those places with a history of preventing minorities from voting. Any changes, from moving a polling place to redrawing electoral districts, must receive federal approval.

The advance approval is part of the Voting Rights Act and gives federal officials a powerful tool to blunt efforts to keep blacks and other minorities from voting.

“Section 5 is largely responsible for improvements in minority participation,” said Katz. “But I don’t think there’s any dispute that problems remain for minority voters in some jurisdictions and I think that all the justices and all the parties agree with that contention.”

But Katz believes there is a strong divergence of opinion on possible results of the court shooting down the provision.

“What is contested is predictive judgment about what will happen if the court scraps Section 5. There’s a lot of dispute about that,” she said.

The provision has been successful and Congress periodically has renewed it, most recently in 2006, when a Republican-led Congress overwhelmingly approved it and President George W. Bush signed a 25-year extension.

It is that strict pre-approval provision that is being challenged in the case brought by Shelby County. They are challenging the constitutionality of Section 5 of the Voting Rights Act just four years after the Court reviewed a similar case in Northwest Austin Municipal Utility District No. 1 v. Holder. 

Members of the court appeared to be skeptical about the ongoing need for the law when it heard that case in 2009. “Past success alone, however, is not adequate justification to retain the preclearance requirements,” Chief Justice John Roberts said for the court. That ruling avoided the constitutional issues and instead expanded the ability of states, counties and local governments to exit the advance approval process.

At that point, so few governments had tried to free themselves from the advance approval requirement that, in 2009, Justice Clarence Thomas said the “promise of a bailout opportunity has, in the great majority of cases, turned out to be no more than a mirage.”

Many citizens think that these issues are limited to the South. But Benson pointed out that many other areas of the nation have been affected by the act.

“You can go to the Justice Department’s website and see a map of the (affected) jurisdictions,” she said. “It’s a lot of southern states, but there are also two townships in Michigan — Buena Vista Township in Saginaw County and Clyde Township in Allegan County. Those are all areas that were found to have a history of discrimination.”

The approval requirement currently applies to the states of Alabama, Alaska, Arizona, Georgia, Louisiana, Mississippi, South Carolina, Texas and Virginia and   counties in California, Florida, New York, North Carolina and South Dakota.  Some local jurisdictions in Michigan and New Hampshire are included. Coverage has been triggered by discrimination not only against African Americans, but also against American Indians, Asian-Americans, Alaskan Natives and Hispanics.

The viability of the bailout option could play a big role in the Supreme Court’s consideration of the voting rights law’s prior approval provision

At the time, Thomas said, only a handful of the 12,000 state, county and local governments covered by the law had successfully bailed out.

“The promise of a bailout opportunity has, in the great majority of cases, turned out to be no more than a mirage,” Thomas said.


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