SCOTUS: Voting Rights Act Pre-Clearance at Risk?

The Supreme Court just heard oral arguments in a case challenging the “pre-clearance” provisions of Section 5 the Voting Rights Act. Pre-clearance requires that certain jurisdictions across the nation seek approval from the Department of Justice before altering voting qualifications or practices. Examples include changing the location of polling places, changing filing deadlines, or implementing new redistricting plans.

So-called “covered” jurisdictions include any state, county or town which implemented a “test or device” to restrict the franchise (like a literacy test), and where less than 50% of voting-age citizens were registered or voted in November 1964. Most of these places are southern states like Alabama and Texas, but much of New Hampshire, several counties in California, and three boroughs in New York City are also covered, for example.

Though the VRA in general and pre-clearance in particular are hallmarks of liberal voting reforms, Congress passed its most recent extension of the Act in 2006 with almost universal bipartisan support – 98-0 in the Senate and 390-33 in the House – after which it was signed by President Bush. However, a challenge to pre-clearance has now made it all the way up to the Supreme Court, and the prospects don’t look good for the law:

A central provision of the Voting Rights Act of 1965, designed to protect minorities in states with a history of discrimination, is at substantial risk of being struck down as unconstitutional, judging from the questioning on Wednesday at the Supreme Court.

Justice Anthony M. Kennedy, whose vote is likely to be crucial, was a vigorous participant in the argument, asking 17 questions that were almost consistently hostile to the approach Congress had taken to renewing the act in 2006.

“Congress has made a finding that the sovereignty of Georgia is less than the sovereign dignity of Ohio,” Justice Kennedy said. “The sovereignty of Alabama is less than the sovereign dignity of Michigan. And the governments in one are to be trusted less than the governments in the other.”

Kennedy and his fellow travelers (Alito in particular) seem to be upset that Congress hasn’t updated the formula for determining which jurisdictions should be covered since the VRA was first passed. Of course, Congress could change the criteria, but as the article notes, it would be politically difficult to do so.

As you may know, the Bush DOJ did its best to kill Section 5 – career attorneys at Justice, for instance, decided that Tom DeLay’s Texas gerrymander violated the VRA, but they were over-ruled by political appointees. Sadly, if the Supreme Court strikes down pre-clearance, Section 5 could simply die altogether.

17 thoughts on “SCOTUS: Voting Rights Act Pre-Clearance at Risk?”

  1. Kennedy was born in 1936.  He knew perfectly well what the practices of the “sovereign” states of Alabama, Georgia, or Mississippi were pre-VRA.  Everybody knew.  Everybody knew why the poll tax was made unconstitutional.  He saw the police dogs attacking protesters on TV and stories on the murders of civil rights workers.  To claim that practices in Ohio and Michigan were similar is beyond being blind.  It is being a deliberately false partisan jacka**.

    One can claim that remedies for these jurisdictions are no longer required.  One can claim that some modification in available remedies could be made.  That is within the realm of normal.  Kennedy’s statement is closer to the White Citizens Council, IIRC a polite, upper middle class version of the Klan that prowled around in nice business suits instead of sheets. Well, the black judicial robe may give legal authority but it sure does not confer either moral authority or correctness.

    Time to replace these fools.  He’s only 72 but his mindset seems pre-Civil War not even pre VRA.

  2. Say SCOTUS does overturn Section 5, is there no other recourse for disenfranchised voters in these districts?

    This strikes me as “an once of prevention is worth a pound of cure”. Allowing the DOJ to review voting qualifications probably serves to decrease the number of lawsuits filed overall. I hope that someone has pointed this out to the anti-litigation wing of the court.

    As a Congressional response, perhaps all districts should be subject to pre-clearance requirements. If Kennedy, Scalia, Thomas, Alito and Roberts want equal treatment for every State, then give it to them.

  3. What exactly is section 5?  Which portion of the law is it?

    Just from reading this post, the legal arguments for overturning makes sense bc the preclearance does inherently put one states sovereighny as more important than others.  They could easily enough just make the preclearance apply to all states.  

  4. I think that I’m going to have to side along the lines of what Kennedy seems to be arguing, that the process needs updating. If I’m not mistaken, and I could very well be, Los Angeles is one of those California county’s that requires the Federal government’s position, due to our previous mistreatment of black and especially hispanic members of the community. It seems however, as Los Angeles is now a majority hispanic county, at least on paper, that seems to be no longer all that relevant. It seems ridiculous to me to assume that counties that acted with disrespect to minority communities in the past are continuing to do so, and that does not mean that communities that once welcomed minorities still do.

    I agree with David 100% that to lose this particular clause of the VRA would be a bad thing, as we all know, there are places in this country were time seems to move at a glacial pace, but to continually punish areas, states and counties that have made progress by forcing them to jump through the hoops seems a bit outdated, ridiculous, and far from progressive. Lets not get rid of the law, but fix it and make it better. Democrats have strong enough majorities in both Houses of Congress, and Obama in the White House, lets fix it.  

  5. Section 5 is the prophylactic/pre-emptive measure that means that in “covered jurisdictions,” every time they make a voting change, they have to submit it to the DOJ in Washington, which checks to make sure it doesn’t hurt minority voting rights.  This is everything from the big — reapportionment plans — to the small, like changing the deadlines for early voting.  

    (And don’t assume that the small are always benign.  Sometimes even something as simple as the deadlines for early voting are get moved for racial & partisan reasons, such as when a mostly-white small town in Texas tried to change its dates so that students at the predominantly black Prairie View A & M University would not be able to vote in the local elections, since the whole election would take place while they were on break.  That’s an example of the kind of thing Section 5 sometimes stops in its tracks.)

    If Section 5 dies, there’s still Section 2.  Section 2 apples throughout the whole country.  You can bring a lawsuit when minority votes are being diluted (again, either by something big, like a redistricting plan, or something small, like closing down the only polling place in a Hispanic neighborhood or whatever).  The problem is, bringing a lawsuit is EXPENSIVE.  Also slow.  

    What I think will happen if Section 5 dies is basically that on the big stuff, like statewide redistricting plans, advocacy groups and pro bono lawyers will step up and use Section 2 to do a lot of what Section 5 does now — just in a slightly more cumbersome and slow way.  (In the non-covered jurisdictions, that’s how things are now.)  But on the little stuff, watch out.  Anything at the local level is unlikely to draw the attention of big-time legal organizations and lawyers.  So I expect that if Section 5 dies, there will be a lot more kind of small-time discrimination in the covered jurisdictions than there is today.

    That’s what I think, anyway.  For a list of all the covered jurisdictions (mainly in the South, but not entirely), see Wikipedia…

  6. If he really wants to overturn a chunk of the Voting Rights Act while Democrats have 250 seats in the House, 60 in the Senate, and an enormously popular White House, with a black president of all things, then by all means be my fucking guest.  The updated Voting Rights Act that I expect we’ll pass in the aftermath of this judicial arrogance will be better than what we already have, I anticipate.  It probably won’t apply to Alabama and not Pennsylvania, but that’s fine with me.  We might be able to wrap some great and long-overdue reforms into a new bill, and then Tony Kennedy can suck on it.

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