Constitutional Law

Oral Argument Scheduled in Review of Voting Rights Act

On its final day of hearings for the term, the Supreme Court has scheduled oral arguments in what may turn out to be a landmark civil rights case. On Wed., April 29, oral argument will be heard in Northwest Austin Municipal Utility District v. Holder, a case challenging the constitutionality of the Voting Rights Act, Section 5.  

Section 5 of the Act “is what gave the legislation teeth,” according to Jeffrey Toobin. “That provision singles out by name those states and counties with especially notorious histories of discriminating against African-Americans, through such mechanisms as literacy tests, character tests, and poll taxes. The law not only eradicated these obstacles; it went a crucial step further. It decreed that if the ‘covered jurisdictions’ wanted to change their voting procedures in any way … they first had to obtain permission from the Justice Department.”

Opponents of the legislation have attempted to block its reauthorization by Congress, which occurred most recently in 2006. Then, Rep. Lynn Westmoreland (R-Ga.) criticized the law, saying, “Congress is declaring from on high that states with voting problems forty years ago can simply never be forgiven."

The Supreme Court granted certiorari on the issue of whether Congress’ 2006 reauthorization of the Act, including Section 5, is unconstitutional. Some of the jurisdictions covered by the law are arguing that this is the case “because Congress irrationally and incongruously chose to continue imposing disproportionate burdens and a badge of shame on covered jurisdictions on the basis of an ancient formula and conditions that existed thirty or more years ago but have long since been remedied.” (Internal quotations omitted.) As proof, opponents of the law argue in their brief that the election of President Obama demonstrates their point.

However, the law’s supporters remain reticent to see Section 5 overruled. In an amicus brief filed in the case, Columbia Law School Professor Nathaniel Persily observed that, “Barack Obama actually did worse among whites than John Kerry in several of the covered jurisdictions, despite the nationwide Democratic swing.” Persily’s analysis indicates that Obama received 47 percent of the white vote in states not covered by Section 5, but only 26 percent of the vote in covered states.

Full post as published by ACS Blog on February 23, 2009 (boomark / email).