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Coming soon: Supreme Court on the Voting Rights Act

The U.S. Supreme Court will get to hear just how much things have changed in the South during argument on Feb.27 in Shelby County v. Holder, the challenge to Section 5 of the Voting Rights Act.

That’s the section requiring certain states and jurisdictions — including 40 counties in N.C. — to get U.S. Department of Justice preclearance of changes to voting practices.

(As previously reported here, a case out of N.C., Nix v. Holder, had also been pending for certiorari by the Court, but was dismissed as moot on the grounds that the Justice Department had withdrawn its objections to the Kinston N.C. voting changes at issue there.)

If the views expressed by Chief Justice John Roberts four years ago — when the Court last considered the issue in Northwest Austin Municipal Utility District Number One v. Holder — are telling, the Court heads into the argument predisposed to dispensing with Section 5 as outdated. The court in that case did not expressly rule on the viability of Section 5, finding instead on narrow grounds that the Austin, Tex. district challenging the constitutionality of the law might be eligible to “bail out” from being covered. But Roberts nonetheless expressed his skepticism about the continued need for Section 5:

“Things have changed in the South,” he said.“The statute’s coverage formula is based on data that is now more than 35 years old,” he added, “and there is considerable evidence that it fails to account for current political conditions.”

But a story in yesterday’s New York Times reminds us that Section 5 is still doing work in the South.

Jerome Gray is a 74-year-old black man who has voted in every election since 1974 in Evergreen, Ala., 70 miles south of Selma. Last summer, he was kicked off the voting rolls by a clerk who had improperly culled the list based on utility records. But then a three-judge panel in federal court in Mobile barred the city from using the new voting list, invoking Section 5:

The court in Mobile this month said the case before it, concerning Evergreen, was simple: because the city had not obtained preclearance from federal authorities, it could not revise its voting list using utility records. Nor could it use a municipal redistricting plan enacted by the City Council that had concentrated black voters, who are in the majority, into just two of the five districts, limiting black voting power.

As the Times also notes, during the last presidential election courts relied on Section 5 to block voter identification requirements and cutbacks on early voting in covered jurisdictions.

More than 40 organizations have filed friend-of-the-court briefs supporting or opposing the relief sought. Extensive coverage of the proceedings can be found here.

2 Comments


  1. Riger Clegg

    February 18, 2013 at 3:53 pm

    Here’s why Section 5 of the Voting Rights Act is bad policy, outdated, unconstitutional, and ought to be struck down by the Supreme Court: http://www.pacificlegal.org/opeds/Overturn-unconstitutional-Voting-Rights-Act

    What’s especially ironic is that the principal use to which Section 5 is put today is forcing jurisdictions to create and maintain racially segregated and gerrymandered voting districts – which is completely at odds with the original ideals of the Civil Rights Movement.

    There are other federal laws available to protect the rights of voters, and they don’t raise the problems that Section 5 does.

  2. gregflynn

    February 18, 2013 at 10:49 pm

    Don’t you just love it when someone opposes a law and can’t decide if it’s unconstitutional or out of date? Especially when it’s white guys in Pacific and Mountain states with delusions of homogeneity aggrieved by apparent remedies for institutional race-based Southern hospitality that actually have wide application.

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