The Next Citizens United? The Voting Rights Act Is In Supreme Court’s Crosshairs

Less than one week after a presidential election ended that was marred by extraordinary levels of voter suppression—from curbs on voter registration drives, to harsh new voter ID laws, to billboards warning communities of color not to vote illegally—and where the federal Justice Department blocked states like Texas from imposing racially discriminatory laws, the U.S. Supreme Court announced Friday that it will hear a case that election law experts say may end up gutting the heart of the 1965 Voting Rights Act.

“The Supreme Court’s order today (coming, probably not coincidentally right after, rather than right before the election), was hardly unexpected,” wrote U.S. Irvine Law professor Rick Hasen on Election Law Blog. “We’ve all been expecting the Court to take this case, and, I suspect use it as a vehicle to strike down the preclearance provision of the Voting Rights Act.”

The pre-clearance provisions of the Voting Rights Act gives the Department of Justice the final say over any change in voting procedures or laws in states and counties where there has been a history of race-based discrimination. When the law passed in 1965, the “covered jurisdictions” were Alabama, Alaska, Georgia, Louisiana, Mississippi, South Carolina, and Virginia. In addition, certain counties in Arizona, Hawaii, Idaho and North Carolina were covered. In 1975, revisions to the law meant that Alaska, Arizona and Texas were covered in their entirety, as well as counties in California, Florida, Michigan, New York, North Carolina and South Dakota.

This year, the Justice Department cited the law to block voter ID changes in Texas and South Carolina. It also rejected GOP-led changes to Florida’s early voting schedule. And it also rejected Texas’ redistricting maps, drawn by that state’s GOP to minimize minority political representation, using a legal standard that does not allow states to backslide on conferring electoral opportunities to minorities.

The case coming before the Court, Shelby County, Ala. v. Holder, may become as infamous as the Court’s Citizens United ruling that deregulated campaign finance. Like Citizens United, which was filed by right-wing activists with deep ties to the Republican Party’s national leadership, this case also was created by rightwing activists who argue that the U.S. is now a post-racial society that doesn’t need the 1965 law.

“The evil that Section 5 [the pre-clearance provisions] is meant to address may no longer be concentrated in the jurisdictions singled out for preclearance,” the county said in its brief. “The statute’s coverage formula is based on data that is now more than 35 years old, and there is considerable evidence that it fails to account for current political conditions.” The county goes on to say that “because Congress has not since acted to rectify these problems, the constitutional validity of Sections 5 and 4(b) must now be resolved.” (Section 4(b) is the act's formula for determining which jurisdictions are covered by Section 5.)

The Shelby County case is the second this term shepherded through the lower courts by the conservative Project on Fair Representation, and Bert Rein of Wiley Rein, a prominent Washington political law firm. Last month, Rein argued in Fisher v. University of Texas-Austin, challenging its race-based university admissions policy.

Election law experts have watched a string of recent Voting Rights Act cases in federal courts in recent years that they feared could tempt the Supreme Court to strike at the heart of the Voting Rights Act—the pre-clearance provisions. For the most part, Chief Justice John Roberts avoided those constitutional questions and ruled on different grounds. But in other cases, he has telegraphed that he doesn’t think that decades-old formulas to thwart racial discrimination are constitutional.

“The Court will focus specifically on the question whether Congress exceeded its power in not updating the coverage formula—states and parts of states are covered based on voter turnout and the use of a test or device in 1964, 1968, or 1972,” Hasen blogged.  “The argument is that Congress couldn’t use those proxies anymore to identify states which still need additional federal oversight…  Further, the references to the 10th amendment power of the states and the republican form of government clause show a great concern about federalism and states rights.”

The Supreme Court under Roberts has shifted power back to states on some key questions, most notably saying in its Obamacare decision that states did not have to follow the federal government’s rules for expanding the Medicaid portions of that law.  

The Obama Administration had urged the Court to reject the case. Citing lower-court litigation, it argued, “the court of appeals correctly applied settled legal principles in reviewing the 15,000-page legislative record, determining that Congress correctly identified a pervasive constitutional problem, and concluding that Congress’s reauthorization of Section 5 (including its maintenance of the existing coverage scope) was a congruent and proportional means of enforcing the Fourteenth and Fifteenth Amendments.”

This case will be one of the legal blockbusters in 2013 and the outcome will be a striking counterpoint to however Congress responds to the long lines seen in many sates on Election Day—a symptom of deeper problems in our voting system—that President Obama said had to be fixed in his victory speech on Tuesday.

“I don’t expect statesmanship or blinking from Court conservatives this time,” Hasen blogged.

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