Did Congress go too far? The Supreme Court will address the question Wednesday when it hears arguments in Shelby County v. Holder, an Alabama challenge to Section 5 of the 1965 Voting Rights Act. That outdated provision requires nine states and parts of seven others to obtain Justice Department approval, or “preclearance,” before changing anything related to voting.
Local governments in covered areas must beg federal bureaucrats in Washington for approval whenever they want to, say, move a polling place, redraw district boundaries or implement voter-ID requirements. Texas is fed up with the federal meddling and filed a brief on behalf of Shelby County. “The outcome of that case is very important to the state of Texas,” the state’s attorney general, Greg Abbott, told The Washington Times in an interview Tuesday. “We are one nation of laws, of equal laws, that are now … being applied unequally.”
Mr. Abbott observed that even if Section 5 is found unconstitutional, “it doesn’t mean the Voting Rights Act is stricken.” Other provisions of the law would remain intact. Mr. Abbott has two other challenges to Section 5 in the pipeline — one involving a voter-ID law; the other, congressional redistricting. The court could end all of the litigation by ruling for Shelby County.
The Obama administration contends the pre-clearance requirement is needed to address what it says is persistent discrimination at the polls. The Justice Department and civil rights groups point to an escape hatch, or “bailout provision,” for reformed state, county and local governments to free themselves from the humbling requirements of Section 5.
The viability of the bailout provision — through which 250 local jurisdictions have escaped Justice’s Section 5 scrutiny — is likely to be a focus of the Wednesday hearing. The Justice Department is expected to argue that thousands more jurisdictions could be eligible, based on the absence of evidence of discriminatory obstacles to voting. In a related case from 2009 that evaluated the act’s impact on redistricting, Justice Clarence Thomas dismissed the right to bail out as “no more than a mirage.”
Court watchers expect another narrow ruling. Justices Sonia Sotomayor and Elena Kagan joined after the 2009 case and, despite the fact that predicting what the Supreme Court will do is a very inexact art, they are expected to side with their liberal colleagues, Ruth Bader Ginsburg and Stephen G. Breyer, to uphold Section 5. Chief Justice John G. Roberts Jr. and Justices Samuel A. Alito Jr., Antonin Scalia and Clarence Thomas are thought likely vote to strike the law as unconstitutional.
The decision is likely to be decided by Justice Anthony M. Kennedy, the swing man on the court. Section 5 is a relic of a bygone era, and should go the way of Jim Crow. Justice Kennedy — and the court — should vote accordingly.
The Washington Times