A central part of election law dating back to the historic civil rights struggles of the 1960s could be scrapped or curtailed in the coming months as a critical case makes its way through the courts.
The fate of a key part of the 1965 Voting Rights Act is now being decided by the federal appeals court in Washington, as a three-judge panel weighs an appeal from Shelby County, Ala. asking the court to find that Congress exceeded its power when it renewed section 5 of the law in 2006.
Under section 5, nine states, mostly in the South but also including Alaska and Arizona, and dozens of counties and townships in other states, must get permission, or “preclearance,” from the Justice Department or a federal court in Washington for any change in voting procedures, no matter how small, that they seek to make.
Just last month, the Justice Department used its section 5 power to block South Carolina’s law that would have required voters to show photo identification before they cast their ballot.
Why would section 5 of the VRA – which Congress renewed for another 25 years in 2006 -- be unconstitutional?
Because, said Shelby County’s lawyer Bert Rein during oral argument Thursday before the appeals, the formula used to determine which states are covered by section 5 is “archaic” – based on voter turnout and registration data from 1972 -- and the flagrant racial intimidation and discrimination in voting procedures that prevailed in those states when the law was written in 1965 and renewed in 1970, 1975, and 1982, no longer exists.
Rein said, “Use of old numbers doesn’t work…. There’s something amiss in the formula.” Judge Stephen Williams seemed sympathetic to that line of reasoning and pointed out during the oral argument that under the 25-year extension of section 5, section 5 coverage will be determined by voting data that will be 59 years old by the final year of that extension.
Rein’s argument was that Congress’s decision to impose section 5 on states such as Alabama for another 25 years wasn’t proportional to the problems in those states which, he contended, might be addressed through case-by-case litigation, as the Justice Department does in the other 41 states, using a different section of the Voting Rights Act, section 2, which bans any election procedure that denies people the right to vote on account of race or color.
When the House voted to renew expiring sections of the Voting Right Act in 2006, three Republican members from Georgia and Texas proposed amendments that would have limited the extension of the expiring provisions to ten years, rather than 25 years, and would have made it easier for states and other jurisdictions to show a record of non-discrimination and thus be freed from section 5 oversight. Those amendments were defeated on the House floor.
Overshadowing Thursday’s appeals court argument was the Supreme Court’s decision in a 2009 Texas case, Northwest Austin Municipal Utility District Number One vs. Holder. In that decision the court expressed doubts about the continued need for section 5, noting that “voter turnout and registration rates now approach parity” between whites and blacks in the section 5 states.
Judge David Tatel complained to Justice Department lawyer Sarah Harrington during Thursday’s argument that the Justice Department brief made no mention of the 2009 Northwest Austin decision, saying the brief “doesn’t engage it; it doesn’t cite it…. Is that because you don’t think we’re bound by Northwest Austin?”
Harrington answered, in effect, that, no, that’s not the Justice Department’s position, but that section 5 is still good law and necessary public policy, under prior Supreme Court decisions. Tatel repeatedly pressed Harrington on how the Northwest Austin decision should guide the court in the Shelby County case.
But Rein came under pressure, too. Judge Thomas Griffith asked him what evidence of discriminatory practices in the section 5 states Congress had before it when it decided to reauthorize the law in 2006. “You’re not arguing that (Congress had no evidence), are you?” Griffith asked.
When Rein replied: “We believe the evidence was equivocal,” Griffith implied that assessing that evidence was the job of Congress, asking, “Isn’t that fundamentally a legislative task?”
Griffith asked Rein what would happen in the nine states if section 5 were removed, seeming to imply that discrimination might return.
“I’m not able to make that kind of prediction,” said Rein.
“But Congress is,” replied Griffith, seeming to signal his skepticism about having the court substitute its judgment for that of Congress.
Responding to Rein’s portrait of conditions in the section 5 states as being completely different today from what they were in 1965, Harrington said things have gotten better in those states, but “things have not gotten better enough.”
Election law expert Dan Tokaji at Ohio State University’s Moritz College of Law said, “If I had to speculate on how this panel rules, I’d say they’d uphold section 5,” but he added “there’s a very good chance it will get to the Supreme Court.”