It is recognized as the most powerful and effective civil rights
law in American history.
So why is the US Supreme Court being asked to declare a major
portion of the landmark Voting Rights Act of 1965 unconstitutional?
On Wednesday, the high court is set to take up a legal challenge
filed on behalf of Alabamas Shelby County, alleging that Congress
overstepped its authority when it voted overwhelmingly in 2006 to
reauthorize Section 5 of the Voting Rights Act (VRA) for 25 years.
At issue in the case, Shelby County v. Eric Holder (12-96), is a
section of the law that gives the federal government extraordinary
power to prevent state and local governments from discriminating
against minority voters by undercutting their political clout in
In 1965, when the VRA was first enacted, many states,
particularly in the Deep South, were actively working to prevent
black and other minority voters from effectively exercising their
right to vote. They had done it for decades through threats of
violence, poll taxes, and literacy tests.
Congress outlawed those blatant tactics, but the discrimination
continued in more creative and subtle ways.
To counter it, Congress enacted Section 5 of the VRA. It required
certain jurisdictions with a demonstrated history of discrimination
in voting to submit any changes in their voting procedures to the
Justice Department or a three-judge panel in Washington for approval
before any change could take effect.
The measure required federal officials or judges to examine the
changes and determine if they were discriminatory or would otherwise
have a detrimental effect on minority voting.
There is no dispute about the effectiveness of the measure. It
worked well and continues to work well.
The question now is whether discrimination in voting nearly 50
years after the 1965 VRA was first passed continues to be so
egregious as to justify the extraordinary measure of requiring
certain targeted state and local governments to obtain permission
from Washington before they are allowed to alter their own voting
When it was first passed, Congress authorized the extraordinary
measure for five years. It has since been reauthorized four more
times, including for 25 years in 1982 before the 25-year extension
in 2006. But instead of reevaluating each covered jurisdiction based
on whether or not there is contemporary evidence of discrimination,
federal lawmakers decided to continue to rely on the original
criteria used in the 1960s and 1970s to determine the most egregious
jurisdictions in the country.
Many of the covered jurisdictions, Shelby County among them,
insist this is unfair.
The central thrust of Shelby Countys argument boils down to one
Those challenging the constitutionality of Section 5 are asking
the high court to strike a balance between Congresss power to fight
discrimination and the constitutional requirement that states be
treated as co-equal sovereigns.
Congress has significant power to fight discrimination and
fashion remedies, but that power is not unlimited, they argue. The
Constitution assigns sovereign power to both the federal and state
governments. Absent extraordinary constitutional violations, like on-
going egregious discrimination by certain state and local
governments, Congress must respect the equal sovereignty of the
states, they say.
The Voting Rights Act of 1965 changed the course of history in
the covered jurisdictions, Washington lawyer Bert Rein conceded in
his brief filed on behalf of Shelby County. …