Early this year, the town of Calera in Shelby County, Alabama, annexed 177 small towns and neighborhoods and then redrew the judicial district lines in the annexed territory without seeking federal clearance. In response, the U.S. Justice Department and civil rights advocates requested that a federal judge enforce Section 5 of the 1965 Voting Rights Act (VRA), which requires all or part of 16 states with an “egregious history of racism” to submit redistricting plans for federal approval.
The argument against the VRA, often brought before the courts, is that Section 5 violates states’ rights to make and enforce their own laws. Shelby County, represented pro bono by the American Enterprise Institute’s Project on Fair Representation, then filed suit in an attempt to force a legal reversal of this request.
The lawsuit is designed to challenge the VRA’s constitutionality and to provide a vehicle for the Supreme Court to revisit the landmark civil rights law. Such a review was last undertaken in 2008 when the court ruled 8-to-1 to leave Section 5, the most frequently cited portion of the VRA, intact in Northwest Austin Municipal Utility Precinct No. One v. Holder. However, Chief Justice Roberts expressed deep suspicion about the law’s constitutionality in the majority opinion. Some legal scholars believe his intent was to issue a warning to Congress that the law must be revised before another similar challenge reached the Court. That new challenge could be on the way in the form of Shelby County, Alabama v. Holder.
Mark Posner, senior council with the Lawyer’s Committee for Civil Rights Under Law, non-profit organization that provides legal services to address racial discrimination, believes there is a good probability that this case may make it to the high court. “We are treating the case as one the Supreme Court will eventually review,” he says. “But the Supreme Court would have to decide whether to hear an appeal.”
The Alabama ACLU, the national ACLU and the Lawyer’s Committee for Civil Rights Under Law are also working with the DoJ to preserve the sections of the VRA threatened by the suit. The NAACP Legal Defense Fund has also filed a brief in Shelby County, Alabama v. Holder on behalf of African-American voters who they argue would be disenfranchised if the county’s challenge to the VRA is sustained. After some legal back and forth, a federal judge has scheduled a hearing on the matter for February, 2011.
Since 1982, the Justice Department has responded to 46 challenges to the VRA in Alabama alone. In 2006, the U.S. House held 21 hearings on the matter and voted overwhelmingly to extend the VRA for another 25 years. The Senate upheld the House vote unanimously. The DoJ, which supported the VRA’s extension, argues that minorities are still vulnerable in the states covered by the VRA’s restrictions on redistricting.
Laughlin McDonald, director of the ACLU’s Voting Rights Project, is fairly confident that Shelby County’s challenge, along with several other outstanding challenges to the law, will be struck down on grounds that extensive hearings making Congress’s intent clear were held in 2006 when the law was extended. However, he and other observers believe that at least one challenge will make it to the Supreme Court. “[When] I listened to the argument, I came away believing there would be four votes to uphold [the VRA] and four to amend with [Justice] Kennedy being the swing vote,” he says.
However, McDonald also believes that recent events have undercut Shelby County’s arguments. He points out that many other parties with pending challenges to the VRA have applied for and received “bail outs,” a process by which a judge allows for an exemption from VRA’s Section 5 provisions for a district that has a proven record of non-discriminatory behavior for 10 years. McDonald believes that if you can show that a district would be granted a bail out if it appealed for one, then the argument that the VRA violates the principles of federalism becomes substantially less powerful.
More broadly, the VRA, and Section 5 in particular, have come under criticism from across the political spectrum. Republicans argue that the law is unconstitutional because it fundamentally disempowers the states by taking reapportionment decisions out of the hands of local government. Some Democrats have opposed the law as well because, in collusion with Republican legislators, Democratic minority representatives have helped create majority-minority districts that allowed Republican legislators to lump white, working-class regions into majority Republican districts.
Without a resolution on this matter, expect the Shelby case to be an ideological flashpoint as reapportionment begins in earnest next year.
Noah Rothman is the online editor at C&E. Email him at email@example.com