Editor’s note:  During the Supreme Court’s summer recess, the blog is publishing a series of posts that explain, in non-legal terms, some of the most important cases that the Court will consider in the new Term that starts October 1.  This is another in that series.  It explains the cases of Nix v. Holder and Shelby County v. Holder.   Beginning next Monday, the blog will be hosting a symposium on the controversy over the law involved in those cases: the Voting Rights Act of 1965.

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Nearly a half-century ago, Congress decided that the government could not end racial discrimination in voting simply by suing one state, county, or city at a time, because officials who were determined to keep minorities away from the polls were quickly shifting to new tactics.   The only way to keep ahead of those tactics, Congress decided, was to bar the worst offenders among state and local governments from adopting any new election laws until they had first proved they would not discriminate.   That was a massive shift in policy, and it worked: the law that Congress passed in 1965, the Voting Rights Act, is now widely credited as the most effective civil rights law in American history; even the Supreme Court has said so.

But the Supreme Court has grown to be one of the skeptics about the constitutionality of the law, partly because of the very fact that the law has been so successful.    ”Things have changed in the South,” the Court commented three years ago.   And, at that time, it pondered striking down the key part of the 1965 law — Section 5 — on the theory that “the evil that Section 5 is meant to address may no longer be concentrated” in the states, counties, and cities that must obey that section.  There are nine of those states, plus local governments in seven other states, that must get permission in Washington before they may change any law dealing with voting — no matter how trivial the change.   The Court chose in 2009 to leave the law as is, but hinted that Congress should update it.

When Congress first drafted that law, it targeted states or communities with the most flagrant histories of bias against minority voters.  It chose as its starting point the states that had used a discriminatory voting law or method that was in effect in November 1964.   More recently, the formula was changed to key it to the situation as of 1972.   Where the formula applies, states can only regain control over their election laws by proving that they have not discriminated for at least ten years.   As long as the law applies to them, any change in voting provisions is automatically blocked as soon as it is adopted, and can only be put into effect with the permission either of the Justice Department or of a special federal court in Washington.  If an entire state is covered, not only the state government but every one of its local governments, too, must obey the law.   In other states where it applies, only specific local units are covered.

For much of the past decade, a chorus of new complaints has been rising among those states, counties, and cities still operating under Section 5, arguing that they remain singled out for the deep federal intrusion into their own self-government, when the conditions which justified that intrusion in the first place — or even in 1972 — have long since changed.   The Supreme Court first upheld the law’s constitutionality in 1966, and has again upheld it as Congress extended it, although various members of the Court have expressed concern about its impact on the powers of states that must satisfy the law’s demands.  Most recently, in 2006, Congress extended the law to 2032.   Three years ago, after this last extension, the Court found a way to make it easier for covered areas to get out from under the law.  It avoided the constitutional question, but remarked bluntly that the law “imposes current burdens and must be justified by current needs.”

Congress, probably unable to agree on ways to change the law, has not taken the Court’s hint.  So, covered governments have been lining up to test again the constitutionality of Section 5, including the 1972-based formula for coverage.   Two of those cases have now reached the Supreme Court, and the chances appear very strong that the Court will grant review of the constitutional issue, for examination at its next Term.  The two cases could be ready for the Justices’ initial reaction in October.

One of the new cases is from the small town of Kinston, N.C., with a population of about 22,000.   It has to get Washington’s approval for any voting change, because it is a part of Lenoir County, which has been covered by the law since August 1965.   In 2008, voters in Kinston approved a plan to replace an existing system of electing local officials according to their party affiliation with a new system of non-partisan elections.   The Justice Department refused to clear the change, charging that ending party affiliation on the ballot would probably reduce the ability of blacks to elect candidates they preferred.   The Department’s theory was that black-preferred candidates would be able to attract fewer white Democrats to support them, if party did not count.

Rather than go to court to get legal permission despite the Justice Department’s objection, Kinston voters sued in federal court, claiming that Section 5 of the 1965 law is unconstitutional.  As written, their lawsuit contended, Section 5 goes beyond Congress’s authority to enforce the Fifteenth Amendment ban on racial discrimination in voting.  It lost in the first-level court, the U.S. District Court in Washington.   When the case was appealed to the next-level court, the D.C. Circuit Court of Appeals, the Justice Department changed its mind, and cleared the election change.   The Circuit Court then dismissed the case, saying there was no longer a live legal controversy.   Kinston then filed its appeal in the Supreme Court, seeking to revive its challenge and to have the Court strike down Section 5 as written.

The other new case is from Shelby County, Ala., which has to obey Section 5 because all of the state of Alabama is covered, as it has been since August 1965.   Shelby County, southeast of Birmingham and a part of that city’s metro complex, has a population of nearly 200,000 people, more than eighty-three percent of whom are white.   It did not seek Washington approval for any voting change, but — noting the skepticism of the Supreme Court in the 2009 opinion — went to court in Washington with a plea to strike down Section 5 as written.  It lost in both the District Court and in the D.C. Circuit Court, then took its case on to the Supreme Court.

Shelby County’s lawyers argued that a state or local government covered by the law “must either go hat in hand to Justice Department officialdom to seek approval, or embark on expensive litigation in a remote judicial venue.”

Both Shelby County and Kinston lawyers told the Supreme Court in their filings that the Justice Department in the Obama Administration has engaged in increasingly aggressive enforcement of Section 5.   The Department recently has been challenging, under Section 5, changes in political election districts in Texas and new photo ID requirements for voters to go to the polls in Texas and South Carolina.

Because the two new cases ask the Court to strike down Section 5 as it is written, a decision which went that far would mean that Section 5 could no longer be enforced against any state, county, or city.   The Court has the option of granting review of either or both of the cases, but it has no obligation to do so.   The state of Texas is expected to file its own new cases in the Supreme Court, after losing its redistricting and photo ID cases in lower federal courts.  Meanwhile, South Carolina’s voter ID law is under review in a Washington federal court.

 

 

Posted in Shelby County v. Holder, Cases in the Pipeline, Featured, Plain English / Cases Made Simple, The Court and the Voting Rights Act

Recommended Citation: Lyle Denniston, Voting rights cases: Made simple, SCOTUSblog (Sep. 7, 2012, 12:06 AM), http://www.scotusblog.com/2012/09/voting-rights-cases-made-simple/