February 12, 2013

SCOTUSblog symposium on the upcoming oral argument in Shelby County

By Joshua P. Thompson Senior Attorney

SCOTUSblog is running a very interesting symposium on the upcoming oral argument in Shelby County v. Holder, the case challenging the constitutionality of Section 5 of the Voting Rights Act.  Here’s a snippet from my contribution:

To the extent that the oral argument focuses on the unconstitutional – but easily remedied – coverage formula, there will be little reason for those championing Section 5’s successes to be alarmed.    What will be interesting, however, is to see if the Court delves into Section 5’s operative provisions. Section 5 prohibits voting changes that have either the “purpose” or the “effect” of denying the right to vote on account of race.  No one disputes that the Fourteenth and Fifteenth Amendments permit Congress to enact laws that prohibit purposeful discrimination in election procedures.  Whether those amendments permit Congress to enact laws that prohibit any discriminatory “effect” is less clear.

Instead of focusing on concrete examples of bias by identifiable bureaucracies or individuals, Section 5’s “effects test” eschews intent for statistics.  A voting change is per se illegal where the statistical results of the voting change show a retrogressive effect.   For example, DOJ objected to a proposed Virginia redistricting plan where the black population in one district fell from 55.7% to 55.2%, even though it conceded that non-discriminatory population changes altered the racial makeup of the district.  In Arizona, a redistricting plan that created two majority Hispanic districts out of one super-majority Hispanic district was rejected.  And, a redistricting plan in Charleston was rejected based on hypothetical future population shifts.

You can read the rest here.  In addtion to my posts, there are many interesting posts from some of the country’s leading scholars on the Voting Rights Act.   Also be sure to check out PLF’s amicus brief, and our Shelby County case page.

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