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.