The Supreme Court has agreed to hear a challenge brought by Shelby County, Alabama to the continued constitutionality of section 5 of the Voting Rights Act.
In its order taking the case, the high court limited the issues before the court to the question of “[w]hether Congress’ decision in 2006 to reauthorize Section 5 of the Voting Rights Act under the pre-existing coverage formula … exceeded its authority under the Fourteenth and Fifteenth Amendments and thus violated the Tenth Amendment and Article IV of the United States Constitution.”
Shelby County and other challengers have argued continuing to use a standard that looks at behavior 40 years ago to determine if a state or jurisdiction is subject to having voting related changes precleared by the Justice Department or a panel of federal judges places excessive burdens on jurisdictions that once were – but no longer are – problem jurisdictions.
In 2009, Justices considered the same issue but avoided deciding the question by resolving the case on non-constitutional grounds.
You would think that the two rulings by the DC court finding that Texas acted with discriminatory intent and effect in redistricting and voter ID would be as clear an illustration as one could want of the continued need for Section 5, but that and $500 will get you an hour with the kind of lawyer that’ll be arguing this case. What’s constitutional and what’s not is what five Justices – or, really, Anthony Kennedy – says it is. We’ll see what that turns out to be. See here, here, and here for more.