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Voting Rights Act at Risk?

National Archive/Newsmakers
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’ve seen what has happened over the past 48 years and I’ve seen, without question, substantial changes,” Ellis said. “And I’ve had a chance to absorb the changes, which of course are not unique to Shelby County but throughout the South and throughout the covered jurisdictions” — those subject to preclearance.

Raising Questions

Shelby County has asked the high court to consider why Congress reauthorized the preclearance provision through 2031 without updating the formula that defines which jurisdictions are covered — it was last revised in 1975, based on numbers from elections in 1964, 1968 and 1972. In its initial filing, the county noted that even though the justices declined to address the overall statute in the Northwest Austin case, they nevertheless acknowledged that the Voting Rights Act’s “preclearance requirements and its coverage formula raise serious constitutional questions.”

The justices are unlikely to dodge the question a second time.

“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.”

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