Rodger Citron: The Supreme Court Considers a Powerful Challenge to the Voting Rights Act
[Rodger Citron is an Assistant Professor of Law at Touro Law Center on Long Island and a FindLaw guest columnist.]
Today, the Supreme Court hears oral argument in Northwest Austin Municipal Utility District Number One v. Holder ("NAMUDNO"), arguably the Court's most important – and perhaps most difficult – case of the term. NAMUDNO involves a powerful challenge to Section 5 of the Voting Rights Act ("the Act") and implicates fundamental constitutional principles, pitting the Fourteenth and Fifteenth Amendments' protections of civil rights against the value of state sovereignty. Paradoxically, the very success of the Act in combating racial discrimination in voting has enabled such a strong challenge to one of its basic provisions.
(Apparently recognizing the significance of and public interest in NAMUDNO, the Court will provide same-day access to audio of the oral argument, something it hasn't done since the oral argument more than a year ago in District of Columbia v. Heller, involving the Second Amendment right to bear arms.)
In this article, I will briefly describe the legislative history of the Voting Rights Act, discuss the challenge to Section 5 asserted by the plaintiff in NAMUDNO and the lower court's rejection of that challenge, and offer a prediction about the outcome of the case before the Supreme Court. Among legal commentators, the conventional wisdom is that Justice Anthony Kennedy's vote will be decisive; I agree. As I will explain below, my view is that Justice Kennedy will vote to uphold the constitutionality of Section 5.
Click here to find out more!
The Voting Rights Act of 1965 and Its Subsequent Reauthorizations
The history of the Voting Rights Act dates back to the period shortly after the Civil War, when the Fourteenth and Fifteenth Amendments were adopted. The Fifteenth Amendment specifically guarantees that the "right of citizens to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude." Despite this guarantee, however, African Americans encountered substantial obstacles to voting – including literacy tests, property qualifications, and other impediments intended to thwart their right to vote – for nearly a century after the ratification of the amendment in 1870.
Eventually, in 1965, Congress responded with comprehensive legislation that generally prohibited voting discrimination. Congress also – in temporary legislation that has been reauthorized several times and continues to be the law today – subjected certain states and other governmental entities with particularly egregious histories of voting discrimination to additional scrutiny and regulation. Under Section 5 of the Act, such "covered" jurisdictions may not make any change in their voting regulations unless the proposed change is reviewed and approved (a process known as "preclearance") by the federal government. The Act also contains what is known as a "bailout" provision that allows for a covered jurisdiction to file a lawsuit if it seeks to no longer be covered; the jurisdiction will succeed if (in essence) it can show that it does not engage in voting discrimination.
The temporary legislation subjecting covered jurisdictions to preclearance requirements (while maintaining the bailout procedure) was reauthorized, with certain changes, in 1970, 1975, 1982, and 2006. Prior to each reauthorization, Congress conducted hearings and received extensive evidence on the continued existence of voting discrimination.
Shortly after Congress reauthorized Section 5 (and a number of other temporary provisions) of the Act in 2006, the plaintiff in NAMUDNO filed suit. The plaintiff – a local government entity in Texas, a covered jurisdiction under the Act – sought to be exempted from the preclearance requirements of Section 5. It also contended that Section 5 was unconstitutional because it was an "overextension" of Congress's power "to remedy past violations of the Fifteenth Amendment."...
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Today, the Supreme Court hears oral argument in Northwest Austin Municipal Utility District Number One v. Holder ("NAMUDNO"), arguably the Court's most important – and perhaps most difficult – case of the term. NAMUDNO involves a powerful challenge to Section 5 of the Voting Rights Act ("the Act") and implicates fundamental constitutional principles, pitting the Fourteenth and Fifteenth Amendments' protections of civil rights against the value of state sovereignty. Paradoxically, the very success of the Act in combating racial discrimination in voting has enabled such a strong challenge to one of its basic provisions.
(Apparently recognizing the significance of and public interest in NAMUDNO, the Court will provide same-day access to audio of the oral argument, something it hasn't done since the oral argument more than a year ago in District of Columbia v. Heller, involving the Second Amendment right to bear arms.)
In this article, I will briefly describe the legislative history of the Voting Rights Act, discuss the challenge to Section 5 asserted by the plaintiff in NAMUDNO and the lower court's rejection of that challenge, and offer a prediction about the outcome of the case before the Supreme Court. Among legal commentators, the conventional wisdom is that Justice Anthony Kennedy's vote will be decisive; I agree. As I will explain below, my view is that Justice Kennedy will vote to uphold the constitutionality of Section 5.
Click here to find out more!
The Voting Rights Act of 1965 and Its Subsequent Reauthorizations
The history of the Voting Rights Act dates back to the period shortly after the Civil War, when the Fourteenth and Fifteenth Amendments were adopted. The Fifteenth Amendment specifically guarantees that the "right of citizens to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude." Despite this guarantee, however, African Americans encountered substantial obstacles to voting – including literacy tests, property qualifications, and other impediments intended to thwart their right to vote – for nearly a century after the ratification of the amendment in 1870.
Eventually, in 1965, Congress responded with comprehensive legislation that generally prohibited voting discrimination. Congress also – in temporary legislation that has been reauthorized several times and continues to be the law today – subjected certain states and other governmental entities with particularly egregious histories of voting discrimination to additional scrutiny and regulation. Under Section 5 of the Act, such "covered" jurisdictions may not make any change in their voting regulations unless the proposed change is reviewed and approved (a process known as "preclearance") by the federal government. The Act also contains what is known as a "bailout" provision that allows for a covered jurisdiction to file a lawsuit if it seeks to no longer be covered; the jurisdiction will succeed if (in essence) it can show that it does not engage in voting discrimination.
The temporary legislation subjecting covered jurisdictions to preclearance requirements (while maintaining the bailout procedure) was reauthorized, with certain changes, in 1970, 1975, 1982, and 2006. Prior to each reauthorization, Congress conducted hearings and received extensive evidence on the continued existence of voting discrimination.
Shortly after Congress reauthorized Section 5 (and a number of other temporary provisions) of the Act in 2006, the plaintiff in NAMUDNO filed suit. The plaintiff – a local government entity in Texas, a covered jurisdiction under the Act – sought to be exempted from the preclearance requirements of Section 5. It also contended that Section 5 was unconstitutional because it was an "overextension" of Congress's power "to remedy past violations of the Fifteenth Amendment."...