Saturday, 10 November 2012

US - Supreme Court to Hear Challenge to Certain Provisions of Voting Rights Act

The Project on Fair Representation

Today, the Project on Fair Representation applauds the decision of the U.S. Supreme Court to hear Shelby Co., Ala v. Holder, a case that challenges the constitutionality of the 2006 reauthorization of Sections 4(b) and 5 of the Voting Rights Act.

Section 4(b) of the Voting Rights Act subjects certain States and political subdivisions to Section 5 of the Voting Rights Act, which invades the sovereignty of these "covered" jurisdictions by requiring them to "preclear" all voting changes with the United States Department of Justice. All of nine states and parts of seven others are subject to these provisions.

Shelby County is a "covered" jurisdiction because, in 1965, the Attorney General determined that Alabama was using a prohibited voting test and less than 50% of the persons of voting age residing in Alabama voted in the presidential election of November 1964. As a result, Shelby County is regularly required to engage in the costly and burdensome process of submitting all voting changes, no matter how minor, to the Department of Justice prior to implementation.

Shelby County brought this challenge on April 27, 2010, arguing that Congress exceeded its enforcement authority under the Fourteenth and Fifteenth Amendments and thus violated the Tenth Amendment and Article IV of the Constitution. The lawsuit claims that Sections 4(b) and 5 were reauthorized by Congress in 2006 for another 25 years without sufficient evidence of current intentional racial discrimination in voting by "covered" jurisdictions. Furthermore, by continuing to base coverage on voting practices and data from 1964, the reauthorized statute does not take into account either the substantial improvements that have occurred in these jurisdictions during the last four decades or that any lingering voting discrimination is the same or worse in non-covered jurisdictions.

The Project on Fair Representation, a Virginia-based not-for-profit legal foundation, is providing the resources and counsel for the lawsuit. POFR provided counsel to Abigail Fisher in Fisher v. Univ. of Texas which was argued at the Supreme Court on Oct. 10, 2012.

Mr. Frank C. Ellis Jr., the County Attorney of Shelby County, Alabama, is available for comment. He can be reached at (205) 669-6783.

Edward Blum, director of the Project on Fair Representation, said, "Congress reauthorized the VRA in 2006 based upon the black voter disenfranchisement in the Deep South that existed in 1965, but those conditions measurably don't exist anymore."

In 2009, the Supreme Court avoided the question of the statute's constitutionality in Northwest Austin Municipal Utility District No. One v. Holder, but signaled that Sections 4(b) and 5 of the Act may impose "current burdens and must be justified by current needs."

Blum noted, "The data proving remarkable changes in racial conditions in these jurisdictions are irrefutable: Criteria such as minority voter registration rates, election turnout, success of minority candidates, and other factors, indicate there is no meaningful and quantifiable difference in the voting rights exercised by minorities in the jurisdictions covered by Section 5 and non-covered jurisdictions. In fact, the evidence suggests that the covered jurisdictions offer greater opportunity for minorities to participate at the polls than non-covered ones. Congress knew this in 2006, but chose to ignore it."

Blum said, "It makes no sense today for Texas and Alabama, but not Arkansas and Tennessee, to be penalized by the federal government. Our system of government is not premised on some states having greater sovereignty than others"

Blum concluded, "The America that elected and reelected Barack Obama as its first African American president is far different than when the Voting Rights Act was first enacted in 1965. Congress unwisely reauthorized a bill that is stuck in a Jim Crow-era time warp. It is unconstitutional." 
Attorneys representing Shelby County, Alabama are:

Frank C. Ellis, Jr.
Bert Rein
County Attorney
William Consovoy
Shelby County, Alabama
Thomas McCarthy
Wallace Ellis Fowler & Head
Wiley Rein LLP

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