Supreme Court accepts challenge to Section 5 of the Voting Rights Act

November 09, 2012 | By JOSHUA THOMPSON

Today the Supreme Court agreed to hear Shelby County v. Holder, a case which challenges the 2006 reauthorization of the Voting Rights Act.  PLF has been heavily involved in getting this case before the Supreme Court, just like we were 3 years ago when the Court agreed to hear a similar challenge.  In that case, Northwest Austin Municipal Utility District No. 1 v. Holder, the Court decided the case on narrower grounds — holding that the utility district could “bail out” from Section 5’s coverage — but the Court wrote in very strong language that the 2006 reauthorization raised serious constitutional concerns.  Instead of heeding the Court’s advice and amending the Act, Congress did nothing, and now the Court is ready to hear this challenge to Section 5.  Shelby County is not eligible to “bail-out” of Section 5, so we are sure to get a decision on the statute’s constitutionality.

PLF’s amicus brief in support of Shelby County lays out a number of reasons why the Court should grant certiorari.  The overarching problem with Section 5 is that it is designed to combat the overt and perpetual intentional discrimination that plagued the Jim Crow south.  It’s coverage formula is based on data that is over forty years old, and no longer reflects current discriminatory voting practices.  Worse, by making it more difficult for local governments to amend voting practices, Section 5 often has the unintended effect of entrenching discriminatory voting practices.

This case is a very important case for PLF’s Equality Under the Law Project.  It is an issue that we have been advocating for years.  Earlier this year, I spoke at a voting rights symposium at Stanford where I was the lone voice for a rational approach to Section 5, and in September, I penned this post for SCOTUSblog, which argued that Section 5’s coverage formula should be struck down.  Here’s a snippet:

It goes without saying that in spite of Section 5’s great success in curbing discriminatory voting practices, discrimination remains.  It should be equally uncontroversial that our civil rights laws should be designed to address the discriminatory voting practices of today.  Section 5, born out of the extreme racial hostility of the Jim Crow South a half-century ago, has outlived its purpose.  And, as Justice Thomas noted in Northwest Austin, “[a]dmitting that a prophylactic law as broad as § 5 is no longer constitutionally justified based on current evidence of discrimination is not a sign of defeat. It is an acknowledgment of victory.”

Needless to say, PLF will be filing an amicus brief in the Supreme Court arguing that Section 5 should be struck down.  In the coming weeks we will be writing more about Section 5.  Today, we are very happy that the Supreme Court agreed to hear the case.