President Lyndon B. Johnson presents one of the pens used to sign the Voting Rights Act of 1965 to James Farmer, director of the Congress of Racial Equality on Aug. 6, 1965. The Voting Rights Act was unlike any other law in the way that it singled out for pre-emptive enforcement specific places deemed to have a history of discrimination.
“I think the calculation was that the Supreme Court would not have the guts to overturn the ‘crown jewel’ of the civil rights movement,” said Hasen, of the University of California, Irvine. “Things are different now than they were in 2006. The Austin decision was a clear statement that the Voting Rights Act is in great danger, and many saw it as an invitation to Congress to take this up so the court would not have to strike it down, and yet Congress again did nothing.”
At the George Washington Law Review symposium in November, the Shelby County case consumed a large chunk of Perez’s lunchtime address, an entire afternoon panel and much of the water cooler discussion. Many of the junior attorneys in the Justice Department’s civil rights division attended. Civil rights law practitioners seemed nervous.
“In the six years since its reauthorization,” Perez said in his remarks, “Section 5 has regrettably, increasingly come under attack by those who claim it is no longer needed because apparently discrimination is a thing of the past.”
“But I regret to inform you,” the assistant attorney general continued, “based on the work that we have done, and the reality that we have seen in all too many jurisdictions across this country, that both overt and subtle forms of discrimination remain all too common, and they have not been relegated to the pages of history.”
Lawyers are normally loath to read the tea leaves when it comes to the Supreme Court, but during an hourlong panel on the Voting Rights Act that followed Perez’s lunchtime presentation, the attorneys present — on the panel and in the audience — seemed to be girding themselves for the court to strike down Section 5.
After Michael Carvin, a Jones Day partner who has litigated such cases, finished explaining why the court would rightly toss the preclearance provision out, the moderator turned to the academics at the table, many of whom have civil rights backgrounds.
“I agree with the predictive judgment here,” said Ellen Katz of the University of Michigan Law School, one of the panelists, “but I disagree with the second statement that it’s the right answer.”
Many who say the preclearance provision is no longer needed point out that there are other laws in place that prohibit voting discrimination. But civil rights advocates say there are key differences between even the permanent parts of the Voting Rights Act and Section 5, the only statute that requires some jurisdictions to justify new election laws before they take effect.
When a three-judge panel in Texas rejected a 2011 redistricting plan, for instance, it said that “the parties have provided more evidence of discriminatory intent than we have space, or need, to address here.” Individual plaintiffs could have challenged the plan using a different part of the Voting Rights Act, but the case might have taken years and perhaps two congressional elections.
The Supreme Court, in its first decision upholding the constitutionality of Section 5 in 1966, called the preclearance plan an “inventive” solution.
“Congress had found that case-by-case litigation was inadequate to combat wide-spread and persistent discrimination in voting, because of the inordinate amount of time and energy required to overcome the obstructionist tactics invariably encountered in these lawsuits,” Chief Justice Earl Warren wrote at the time. “The question remains, of course, whether the specific remedies prescribed in the Act were an appropriate means of combatting the evil.”
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