Justices Weigh Future of Key Voting Rights Act Section

By Mark Walsh — February 27, 2013 5 min read
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A majority of U.S. Supreme Court justices appeared skeptical on Wednesday about the constitutionality of a key provision of the Voting Rights Act of 1965 that requires covered states and jurisdictions, including school districts, to obtain federal approval for any change in voting.

Justice Antonin Scalia said during the arguments in Shelby County v. Holder (Case No. 12-960 that the 2006 renewal of the voting-rights law’s Section 5 approval requirements for certain jurisdictions amounted to a “perpetuation of racial entitlements.”

“I am fairly confident it will be reenacted in perpetuity unless a court can say it does not comport with the Constitution,” Scalia added.

Justice Samuel A. Alito Jr. said there was “no question that the Voting Rights Act had done enormous good.” But he asked why, when Congress renewed the law, it wasn’t incumbent on lawmakers under the relevant legal standards to make a new determination of which jurisdictions should be covered, rather than stick with a formula from 1965.

Justice Anthony M. Kennedy said the Voting Rights Act’s preclearance requirements may have run their course. He noted that the Northwest Ordinance for westward U.S. expansion, the Morrill Act establishing land-grant colleges, and the Marshall Plan to aid European recovery after World War II “were very good, too, ... but times change.”

School District Implications

Under Section 5’s “preclearance” requirement, covered jurisdictions such as school districts must gain approval from either the U.S. Department of Justice or a special three-judge federal district court in Washington for steps like adjustments in election districts or the movement of polling places. The preclearance requirement was adopted because, at the time of the law’s enactment, Southern states were adept at introducing new roadblocks to minority voting that outpaced lawsuits challenging existing discriminatory practices.

Nine states are covered as a whole—Alabama, Alaska, Arizona, Georgia, Louisiana, Mississippi, South Carolina, Texas, and Virginia—and certain jurisdictions in five other states come under the section. The states and other jurisdictions outside the South covered under Section 5 either at one time had literacy requirements for voting, the key trigger in the law’s original formula, or were added when Congress adopted language-minority status as a factor covered by the law.

Because school districts are not typically involved with the mechanics of voting, such as voter registration or polling procedures, the most common district actions that trigger the preclearance requirement are the periodic redrawing of voting districts for elected school board members and changes in governance, such as a switch from an at-large school board to one with single-member districts.

While Section 5’s preclearance requirements are viewed as burdensome by many in the covered jurisdictions, groups representing school boards did not get worked up enough over the Shelby County case to file a brief in the Supreme Court.

In court papers, the U.S. Department of Justice notes that it has interposed objections scores of times to school board voting changes, and it argues that the Voting Rights Act’s Section 2, which permits citizens to bring their own lawsuits challenging discrimination in voting, would be inadequate without the preclearance mechanism of Section 5.

Minority voters in small towns and rural areas “are finally having a voice on school boards, county commissions, city councils, water districts, and the like,” but they generally do not have the means to press their own cases under Section 2 of the law, U.S. Solicitor General Donald B. Verrilli Jr. told the court in a brief.

Congress itself, in renewing the law in 2006, cited the Webster County, Ga., school district, which had sought in 1998 to redraw voting lines to reduce the black population in three of the school board’s five single-member districts after a majority-black board was elected for the first time.

Alabama’s Challenge

The challenge to the Voting Rights Act comes from Shelby County, Ala., in a suburban area south of Birmingham. The county argues that Section 5 usurps the sovereign power of the states to regulate their own elections.

“As everyone agrees, [the Voting Rights Act has] been very effective,” Bert W. Rein, the Washington lawyer representing Shelby County, said in court. “Section 5 has done its work. People are registering and voting. ... But if you think there is discrimination, you have to examine that nationwide.”

Members of the court’s liberal bloc aggressively questioned Rein. Justice Sonia Sotomayor suggested it was unlikely that Shelby County would be free of a preclearance requirement even if Congress had applied an updated formula for discriminatory practices as of 2006.

“Why would we vote in favor of a county whose record is the epitome of what caused the passage of this law to start with?” she asked.

Justice Elena Kagan told Rein that Alabama’s population is about one-fourth black, “but Alabama has no black statewide elected officials.”

“You’re objecting to a formula, but under any formula that Congress could devise, it would capture Alabama,” Kagan said.

Verrilli, representing President Obama’s administration, said the Voting Rights Act “made a huge difference in transforming the culture of blatantly racist vote suppression that characterized parts of this country for a century.”

“Section 5 preclearance was the principal engine of that progress,” he added.

Verrilli noted that the statute allows a covered jurisdiction to seek an exemption—called “bailout"—from Section 5’s preclearance requirements if it has met certain conditions, chiefly a 10-year record of no discrimination in voting.

A friend-of-the-court brief filed on neither side by Merced County, Calif., describes how the covered jurisdiction recently won bailout from preclearance requirements for itself, its 22 school districts, and other local agencies.

“After ... decades of compliance with Section 5, extensive work by the county to oversee compliance by independent cities and agencies that it does not control, the expenditure of more than $1 million in legal fees, ... and more than two years of investigations by the United States Department of Justice, the county of Merced finally achieved its goal of bailing out of Section 5 coverage,” the county’s brief says. “That effort finally relieved the county of the stigma of being covered by a statute designed to target historic discriminators.”

[On a related note, Education Week’s Nora Fleming has a story this week examining a trend in California in which local school boards are abandoning at-large governance.]

Photo: People wait in line outside the Supreme Court in Washington on Wednesday, as justices heard oral arguments in the Shelby County, Ala., v. Holder voting rights case. (Evan Vucci/AP)

A version of this news article first appeared in The School Law Blog.