Friday, November 9, 2012
The Supreme Court on Friday agreed to hear the Shelby County challenge to the preclearance provision of the Voting Rights Act as reauthorized in 2006. The preclearance provision, Section 5, is the centerpiece of the VRA; it requires covered jurisdictions--those with a particularly ugly history of discrimination in voting--to obtain preclearance from the U.S. Department of Justice or a three-judge federal court in D.C. before making any changes to their voting laws. The Court criticized Section 5 just three-and-a-half years ago in Northwest Austin Municipal Utility District v. Holder for not keeping up with improvements in covered jurisdictions and for intruding on the states. The Court wrote that Section 5 raised "serious constitutional questions," but declined to rule on its constitutionality. Thus Section 5 survived Northwest Austin--but just barely.
The cert. grant in the Shelby County case asks whether Section 5 is unconstitutional in light of Congress's reauthorization of it using pre-existing Section 4(b) coverage. Section 4(b) sets a formula for which states and counties are covered jurisdictions and therefore must obtain preclearance before changing their voting laws. The two sections go hand-in-hand, and a ruling overturning Section 5 would render Section 4(b) null. But a ruling overturning only Section 4(b) could leave Section 5 in place. Such a ruling would require Congress to go back and determine the covered jurisdictions more carefully--something some say it failed to do when it reauthorized the VRA in 2006 (and hasn't done since).
The way the Court poses the question presented leaves this possibility open--and it's the more restrained option for a Court inclined to overturn something in the 2006 reauthorization. But it seems highly unlikely. Section 5 is almost certainly the real target, whatever the coverage formula in Section 4(b). Here's the QP:
Whether Congress' decision in 2006 to reauthorize Section 5 of the Voting Rights Act under the pre-existing coverage formula of Section 4(b) of the Voting Rights Act exceeded its authority under the Fourteenth and Fifteenth Amendments and thus violated the Tenth Amendment and Article IV of the United States Constitution.
The QP's references to the Tenth Amendment and Article IV ensure that the case will center on federalism concerns. Northwest Austin said as much, with its language suggesting that Section 5 unduly intrudes on the states.
The Court took no action on another Section 5 challenge, Nix. Petitioners in that case filed their cert. petition at the same time that the Shelby County petitioners filed, in late July.