The Supreme Court heard oral arguments today in the case of Shelby County v. Holder, the challenge to the constitutionality of Section 5 of the Voting Rights Act (VRA). Section 5 is critical to the protection of voting rights in the U.S., and FairVote agrees with leading civil rights organizations that Section 5 is necessary to ensure that discriminatory voting practices are not implemented in the places where the risk is highest. We also question the value of any immediate judgments about what the Court may do in the Shelby case, given how many legal authorities were wrong when predicting the Court would strike down Section 5 and associated provisions in a 2009 challenge to the Act.

As background, nine states and additional local jurisdictions in seven states are covered by Section 5 based on a coverage formula tied to statistics on minority voter turnout in covered jurisdictions. One state covered by the Act is Alabama, including Shelby County. Covered jurisdictions must “preclear” proposed election law changes with federal officials, and this system, known as preclearance, is at the heart of Shelby County’s challenge.

Plaintiffs argue that preclearance is no longer necessary in covered jurisdictions because increases in racial minority voters and elected officials show that discrimination is no longer prevalent or concentrated in covered areas.  Plaintiffs also argue that voting discrimination, when it does exist, is no more prevalent in covered jurisdictions than nationwide, and that a coverage formula (which was initially developed using election data from the 1968, and 1972 presidential elections) is outdated. As Drew Spencer and Rob Richie explained last week, however, actions taken a few years ago in the city of Calera in Shelby County underscore the value of Section Five.

29 civil rights organizations submitted an amicus curiae brief to the Supreme Court, arguing for the constitutionality of maintaining Section 5. The brief states, that “while many of these [covered] jurisdictions have made substantial progress toward eliminating discriminatory voting practices, the legislative record amassed by Congress, as well as more recent history, shows that these gains are fragile and that discriminatory practices still persist.” FairVote agrees with these civil rights organizations, and echoes the need for Section 5 to be upheld.

While Shelby County argues that Section 5 is unconstitutional, Congress in fact acted within its power under section 2 of the 15th Amendment when it reauthorized the VRA. Spencer Overton, a Professor of Law at The George Washington University Law School, sums up the constitutionality of Section 5 quite well. Writing for SCOTUSblog, he stated, “Congress acts at the height of its authority when it legislates to protect voting rights.” Specifically, he wrote, “the Fifteenth Amendment empowers Congress to use ‘any rational means’ to prevent voting discrimination. And the Fourteenth Amendment gives Congress the authority to enact laws that are ‘congruent and proportional’ to prevent constitutional harms, and gives Congress greater leeway when protecting fundamental rights like voting.” Section 5 of the VRA is clearly in place to legislate to protect voting rights, and as such, should be protected. 

Commentary and analysis from other leading legal scholars underscore the case for rejecting the challenge in Shelby. Jamie Raskin, a professor of constitutional law at American University’s Washington College of Law and a State Senator in Maryland, has outlined the need for Section 5 based on the fact that section five is an effective prophylactic measure, and that “hundreds of plans and thousands of proposed [election law] changes have been rejected, preventing backsliding in the project of strong interracial democracy, even as more than 99% of submitted plans are approved routinely after submission.” Sen. Raskin makes it clear that Section 5 is not overbroad, and is, in fact, working in a limited fashion to prevent the most egregious forms of voter disenfranchisement from becoming law.

Myrna Perez, Senior Counsel at the Brennan Center for Justice, calls the voting rights act a necessary and important tool, “and also a symbol of our nation’s struggle and commitment to safeguarding the most fundamental right of American democracy.” She is right. The right to vote is essential for a truly representative democracy, and legislation implemented with widespread support in Congress to enhance this right should be upheld.