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SCOTUS to review Section 5

Gird your loins.

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.

More from Rick Hasen of Election Law Blog here and from SCOTUSblog here.

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.

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  1. Mainstream says:

    It is hard for me to see why Indiana can enact an ID law without having a federal bureaucracy micromanage and second-guess them, but Texas cannot. I have not looked at recent data, but I suspect that the formulas regarding voter registration levels and participation by minorities used in 1965 are so out of whack that many if not most Southern jurisdictions are more open to black participation in elections than some unburdened Northern and Western and Midwestern cities.

  2. […] court’s order is here, and background on the Shelby County case is here. If I had to guess, I’d think the state would like the court to wait for SCOTUS, and the […]

  3. Mainstream says:

    A recent case out of Beaumont illustrates how DOJ plays politics in its use of the VRA. There, in a complicated matter, DOJ claims it needs more information to figure out whether a 7 single member district plan is still fair to black voter interests because District 2 may not be sufficiently black to continue to elect a black person to office. The district in question is 51.0 percent VAP black, 30% white VAP, and an overlapping 25% Hispanic. (CVAP data is not readily available, but for the overlapping city of Beaumont, data shows high levels of non-citizenship among Hispanics.) District 2 voted for Obama by 72%, and three local black candidates won more than 68% there in 2010 and 2012. But the DOJ, because it wants to slow down and stop a local election in Beaumont for school trustees, is feigning that it cannot evaluate whether such a district would elect a candidate preferred by black voters.

    This is a perfect example of why Section 5 of the VRA should be declared unconstitutional. This micromanagement of local politics by DOJ, and their playing politics in the process, is offensive to any fair notion of local control of elections in the 21st century.