Shelby County v Holder: Will the Supreme Court Strike Down Section 5 Of the Voting Rights Act?


Justice Antonin Scalia characterized the Voting Rights Act as the “perpetuation of racial entitlement” during oral arguments in the case of Shelby County v. Holder on Wednesday. The case will be one of the most important cases that the Supreme Court will hear this year. The ruling would either maintain or strike down Section 5 of the Voting Rights Acts, which makes it difficult for states to enact measures that could result in the disenfranchisement of minorities. Many states passed measures during the 2012 presidential election that would have adversely impacted minority voters, and the Justice Department relied on Section 5 of the law to challenge those measures.  Hence, Section 5 of the Voting Rights Act continues to be critical in helping combat measures that would hamper the participation of minorities in elections.

The Voting Rights Act put an end to many blatant discriminatory tactics that were so prevalent in the South. The act, therefore, has had a tremendous impact over the past few decades because it allows African Americans and other minorities to more freely exercise their right to vote. Furthermore, the participation of African Americans in the electoral process has had two major impacts. First, the act has paved the way for more minorities to get elected in public offices. Equally important, since they could vote, elected public officials have become more responsive to the needs and concerns of minorities.

Although the law has generally been successful in removing barriers that prevented African Americans and other minorities from voting, many states still tried to pass measures that would have a deleterious impact on minority voters. In 2006, before renewing the act, Congress compiled more than 10,000 pages of evidence of persistent “voting discrimination.” These findings helped explain why Congress voted overwhelmingly to renew the Voting Rights Act for another 25years.

In 2010, a number of states began passing new laws that would have curbed the number of minority voters that would have participated in the 2012 presidential election. According to the Brennan Center for Justice, 11 states where Republicans controlled the state legislatures passed voter ID laws that would have made it significantly harder for minorities to vote. Section 5 empowered the Justice Department to fight off those measures.

Because Section 5 has made it much more difficult to change election laws, many states have been trying to repeal it. There are nine states, which are mostly in the South, and some localities across the country that are under the jurisdiction of this provision. Before making any changes to their election laws, these states and localities must obtain a “preclearance” from the Justice Department.

These restrictions prompted a county in Alabama to challenge Section 5 in the court system. Those who brought the lawsuit have been arguing that the provision is no longer needed. The conservative justices have been receptive to that argument. In fact, many of those justices have been highly critical of the provision during a hearing for another case that dealt with Section 5. For instance, Clarence Thomas indicated that he was ready to vote for its repeal whereas Chief Justice John Roberts declared “things have changed in the South.” Roberts expressed even more skepticism regarding the provision during the Shelby County v. Holder hearing that took place on Wednesday, February 27. He declared “Is it the government’s submission that citizens in the South are more racists than citizens in the North?”

These statements by conservative justices demonstrate that they do not believe that Section 5 is necessary. Since they are in the majority, there is a strong possibility that the Supreme Court could vote to strike down Section 5 of the Voting Rights Act. Such a decision would give states that were already trying to make it harder for people to vote a carte blanche to re-engage in those same tactics.

Furthermore, its repeal would decimate the Voting Rights Act. As pointed out by Linda Greenhouse, the former New York Times journalist who covered the Supreme Court for decades, such a ruling “would be a truly radical move, a march off a cliff of the court’s own making.”