This column by ACRU Senior Legal Analyst Ken Klukowski was published on November 9, 2012 on Breitbart.com.
Early next year, the Supreme Court will hear arguments on a constitutional challenge to one of the most powerful provisions in federal law, Section 5 of the Voting Rights Act of 1965, in the case Shelby County v. Holder.
The Voting Rights Act (VRA) was passed by Congress and signed into law by President Lyndon B. Johnson in 1965. It gives force to the Fifteenth Amendment of the U.S. Constitution, which forbids voting rights from being abridged on account of race or color. Whenever any unit of government violates voting rights, that government can be sued under VRA Section 2.
But certain states–essentially throughout the South–are under massive additional restrictions from VRA Section 5. That section requires that any change to voting laws or procedures–even the kind of paper used to print ballots–must be pre-approved by the U.S. Department of Justice or by a three-judge federal court in Washington, D.C.
The Supreme Court upheld VRA Section 5 in the 1966 case South Carolina v. Katzenbach. The Court acknowledged that states are primarily responsible for elections and that all states should be treated equally because they are equal sovereigns. Nonetheless, the Court held that the problems of racial hostility and voter suppression were so egregious and widespread in that part of the country that the Fifteenth Amendment permitted such an intense intrusion into state sovereignty, because case-by-case litigation couldn’t move fast enough to protect minority voters.
But it was also made clear in Katzenbach that if the facts involving racial equality significantly changed, Section 5 might no longer be authorized by the Fifteenth Amendment. The Supreme Court unanimously reaffirmed this condition in its 2009 Northwest Austin case, sending a shot across the bow of Congress that lawmakers might need to narrow the scope of Section 5; it found that “current burdens … must be justified by current needs.” Congress took no such action, and Shelby County sued.
Shelby County is being represented by Burt Rein and Will Consovoy at Wiley Rein, a very capable firm specializing in constitutional litigation. They will square off against Solicitor General Don Verrilli and the Justice Department.
This case is being argued the same year as the constitutionality of racial preferences in college admissions in Fisher v. University of Texas, where the plaintiffs are also being represented by the same lawyers at Wiley Rein.
If both of these cases go for the challengers, this Term of the Supreme Court might be the most significant concerning race and constitutional law since the 1960s.