06262017Headline:

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Nick Kahl
Nick Kahl
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Civil Rights issue to go before the Supreme Court

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The Supreme Court said last month that it will look at the constitutionality of an important component of the Voting Rights Act of 1965 (VRA).

Section 5 of the VRA was enacted by Congress to prevent the continuing disenfranchisement of minority and minority language-speaking voters. Under Section 5, some jurisdictions – referred to as “covered jurisdictions” – must get preclearance from the federal government before making any changes to their voting laws.

Next year in Shelby County v. Holder, the Supreme Court will decide whether Section 5 is unconstitutional. And if it is, many believe the court will strike it down.

Lawyers for Shelby County, Alabama argue that Section 5 should be struck down because the law is unduly burdensome, only applies to certain states, and the federal government has been “needlessly aggressive” in using its Section 5 powers.

Given that the law has been upheld by the Court numerous times since 1965, the arguments that the law is unduly burdensome or that the government is “needlessly aggressive” are not well-founded. Shelby County, Alabama appears to be arguing that the institutional racism and bigotry, which that the VRA seeks to counteract, no longer exists. Nothing could be further from the truth. In fact, minority voting rights are under attack all over America—in covered jurisdictions and non-covered jurisdictions alike.

That is why I do not necessarily disagree with Shelby County that selective application of Section 5 is a problem. And that also means I do not necessarily disagree with the Court’s apparent suspicion of Section 5. But I do disagree with their proposed solution. The Court can address the “covered jurisdictions” issue without invalidating the entirety of Section 5. Instead of striking down all of Section 5, the Court should simply strike the “covered jurisdictions” provision and apply preclearance of voting law changes to all the states.

Currently, Section 5 only applies to nine states and a few other areas. Notably absent are most of Florida and Ohio, both of which have laws on their books that many believe systematically suppressing the votes of minority groups.

Applying Section 5’s preclearance provisions more broadly is certainly a better solution than further weakening the VRA through the wholesale elimination of Section 5.

ProPublica has a useful primer on the Voting Rights Act issues before the court in Shelby County v. Holder.

2 Comments

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  1. Roger Clegg says:
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    Here’s why Section 5 is bad policy, outdated, and unconstitutional, and why the Supreme Court should strike it down:
    http://www.pacificlegal.org/opeds/Overturn-unconstitutional-Voting-Rights-Act

  2. James Kramer says:
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    The Supreme Court will strike down the outdated coverage formula.

    However, only Congress can then expand coverage to all 50 states. The Supreme Court does not have that power.