Voting Rights Act: Supreme Court Likely to Send Back to Congress

The Supreme Court began hearing oral arguments on the preclearance provision (Section 5) of the Voting Rights Act. Early indications are that that the court will either rule narrowly and strike down the provision in Shelby County, Ala., or rule broadly, strike down the provision, and ask Congress to come up with a new formula that encompasses current voting, demographic, and geographic data. Republicans are not going to vote against their self-interests nor tacitly admit that discriminatory voting practices still exist in their home jurisdictions.

Section 5 mandates that jurisdictions that have historically deployed discriminatory measures to suppress the vote must receive authorization, i.e., preclearance from the Department of Justice before changing election law and administrative procedures. In Shelby County v. Holder, a small, predominately white county in Alabama, has challenged that the methodology for determining these jurisdictions is no longer current or applicable. Furthermore the suit suggests that the selection process is inherently discriminatory because preclearance is narrowly applied to the jurisdictions that were identified in 1965 rather than the entire country.

Supreme Court Justice Antonin Scalia has already signaled how he will be voting. He attributed the 2006 reauthorization of the Voting Rights Act to a “phenomenon that is called the perpetuation of racial entitlement.” Scalia said the Voting Rights act had created “black districts by law.” Liberal Justices Sotomayor and Kagan took a different view. Regarding Shelby County as plaintiff, the Huffington Post reports that Sotomayor explained, "Some parts of the South have changed. Your county pretty much hasn't.” Kagan remarked, “Under any formula that Congress could devise, it would still capture Alabama.”

Asking Congress to reauthorize the provision is tantamount to ending preclearance. There is no way the House of Representatives with a Republican majority will extend preclearance to include all of America including the red states. Furthermore they will have no pressure to do so from the states because the majority of state houses are Republican-controlled and there are virtually no swing congressional seats in the country.

Charles Cook of the National Journal found that there are less than 100 congressional districts in America that could be considered swing seats. In other words an incumbent may face a challenge from within the party but either way the seat will remain Democrat or Republican. This of course ensures that a). Republicans will retain their majority position in the house for the foreseeable future b). Congress will continue to be a place dominated by partisan politics.

As this relates to Section 5 of the Voting Rights Act, Republicans will not have to be concerned with national support for the Voting Rights Act because their local jurisdictions will vote Republican no matter what the sentiment of the national electorate. Of course it is also important to note that The Department of Justice has been very successful in proving that Republican led states have been actively suppressing voter turnout in many of the preclearance jurisdictions e.g. Texas, South Carolina, and Florida.

A ruling against Section 5 will not eliminate the Voting Rights Act but it will make it more difficult and therefore more expensive to bring suit against jurisdictions that are suspected of violating voter protection laws. Solicitor General Donald Verrilli noted, for example, that cases brought under Section 2 of the act require “after-the-fact litigation” rather than the preventative measures embodied in Section 5.

According to SCOTUSblog, Justice Kennedy, who is often seen as the swing vote in the Supreme Court, seemed convinced that Section 5 was unconstitutional, but equally concerned that the Voting Rights Act would not be enforceable without its provision.  Justice Ginsburg echoed Kennedy’s concern as to whether the expensive, time-consuming process under Section 2 was sufficient to which Verrilli provided an example of polling place and voter registration changes as the type of activities that would be ill-suited for Section 2. Interestingly, these were just the type of activity that was found to be discriminatory under Section 5 in recent years, especially in 2012.

However, each and every time the conservative justices could not be convinced that the current preclearance process could be sustained under the Constitution. When Verrilli noted that Section 5 was “much speedier, much more efficient and much more cost effective,” Justice Alito responded, “Then why shouldn’t it apply everywhere in the country?”