Who controls Voting Rights?

February 26, 2013

This is part of the Reuters series on the future of the Voting Rights Act’s Section 5, which the Supreme Court may strike down this year. You can read other pieces in the series here.

On Wednesday the Supreme Court is set to hear oral arguments in Shelby County v. Holder, challenging the constitutionality of a key part of the Voting Rights Act. But in the wide public debate about this case, we are getting to the point where — as election law scholar Pam Karlan has noted — everything has been said, but not necessarily by everybody.

In addition to this Reuters symposium on “If the Court Strikes Down Section 5,” other symposia, commentaries and op-eds have considered whether the act still serves a vital purpose; whether the court should strike it down; and what should replace it if the court rules that Congress went too far in requiring certain states to continue to get federal permission when making changes in any voting rules until 2031.

Even President Barack Obama has weighed in, urging the court to keep the act in place. He said the best way to protect voting rights is by having the federal government review voting changes before they can be implemented, to ensure that changes don’t make protected minority groups worse off.

So it is worth taking a step back to look at the larger question of why this is a decision for the Supreme Court to make and not the political branches. After all, even back in 1965, Section 5 was “strong medicine.” There is no other law on the books requiring states and localities to get permission from the federal government before they can implement their laws. All or parts of 16 states — mostly in the South but also including parts of other states such as New York and California — have had to get Justice Department permission for changes as small as moving a polling place across the street and as large as a state redistricting plan. In 1966 the Supreme Court rejected a challenge to the law’s constitutionality. The court ruled, in South Carolina v. Katzenbach, that Congress was justified in prescribing the strong medicine because of continuing problems in eradicating racially discriminatory voting rules.

A lot has changed since then. Yet the very fact that all or part of 16 states continue to be subject to Section 5 strictures is a reason for the Supreme Court to defer to Congress the decision about whether Section 5 is still needed. The 2006 renewal, which extended the Voting Rights Act for an additional 25 years, passed in the Senate by a vote of 98-0, and in the House of Representatives by a similar lopsided margin.

If the states subject to Section 5 had banded together and opposed the law back in 2006, that renewal never would have passed. A filibuster from some Southern senators could also have stopped it. Nothing forced the Republican House to take up the act and renew it. President George W. Bush did not have to sign it.

The intrigue behind the passage of the 2006 renewal is a fascinating story, in which Representative James Sensenbrenner (R-Wis.), then chairman of the House Judiciary Committee, joined with leaders of the civil rights movement to push Section 5’s renewal through without amendment. Things did not go quite as smoothly on the Senate side. Though the act passed by a 98-0 vote, Republicans on the Senate Judiciary Committee issued a committee report suggesting that Section 5 was no longer constitutional, given the progress that had been made in racial discrimination in voting in the jurisdictions subject to oversight.

Despite these misgivings from a few senators and representatives, Congress overwhelming passed these laws ‑ making a judgment that the laws are still needed.

There’s good reason to think they are: Just look at how Texas tried to pass the strictest voter ID law in the nation, as well as a redistricting plan that could have ripped the economic guts out of districts represented by minority legislators. Courts blocked both laws, and these cases are on appeal to the Supreme Court.

If Section 5 really is no longer needed, that’s a judgment for Congress to make. The states covered by Section 5 are hardly powerless, and there’s no reason now for the Supreme Court to substitute its judgment for that of Congress. The court need not protect states that did not take steps to protect themselves.

More to the point, the law is scheduled to end, or sunset, in 18 years. At that point, as in 2006, opponents of Section 5 will have congressional inertia on their side.

If, as we all hope, Section 5 is no longer needed, it can then die of natural causes. But it should not be subject to preliminary execution by the Supreme Court.

PHOTO (Top): The U.S. Supreme Court building seen in Washington May 20, 2009. REUTERS/Molly Riley


PHOTO (Insert Middle): Martin Luther King Jr. (center) during the March on Washington, August 28, 1963. REUTERS/National Archives/Handout

PHOTO (Insert Bottom): Chief Justice John Roberts  REUTERS


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The problem with this argument is that the formula which determines which states are covered by Section 5 is facially irrational, a point that the government concedes.

It is the Supreme Court’s duty to overturn such an arbitrary exercise of Congress’s power.

Posted by kramartini | Report as abusive

OP is a partisan hack, as can be easily seen by his writings.
HINT: he is the proponent of the meme “there is no identity fraud by voters”

SCOTUS declares when a law or section of a law becomes unconstitutional, not Congress, and Hasen know this but ignores it.

/I hope Volokh takes him up on his position

Posted by VultureTX | Report as abusive

A man is no less a slave just because he is allowed to elect a new master every 4 years. Never does the ballot have a “Void Office” box to check and the idea of voting to gain the majority means nothing more than “I wish to be the 51% that oppresses the other 49%”. Rights are blown out of proportion. Do you need a right to hear? A right to see? A right to walk? No. Everything that has ever been declared a right, including voting rights, has been regulated away for some group of people. Free Speech is not a right, its an ability and it can only be taken from you by removing your vocal chords. Voting is described as a right so that people don’t realize what it actually is, voluntary slavery.

The only people that need rights are those with no might.

Posted by LysanderTucker | Report as abusive


Free speech can be taken from you by a government that could, were it not written into the Constitution, come to your house, drag you out and put you in prison for speaking against it, or stone you in the street.

If Romney had won, we wouldn’t be having a discussion about Section 5 in this country.

Posted by JL4 | Report as abusive