National Association of Counties
Washington, D.C.

 Supreme Court to review Voting Act provision

By Deseree Gardner

On Feb. 27, the U.S. Supreme Court will hear oral arguments in Shelby County v. Holder, a case that questions the constitutionality of Section 5 of the Voting Rights Act of 1965 (VRA), legislation that outlawed discriminatory voting practices. 

The court will decide whether Congress’ reauthorization of Section 5 violates the constitutional rights of sovereign governments by imposing “preclearance” requirements on certain jurisdictions.

Bullet Section 5 of the Voting Rights Act

The Voting Rights Act is widely considered landmark civil-rights legislation, though certain provisions have sparked political controversy. Section 5 of the VRA established extensive federal oversight of elections administration, providing that jurisdictions with a history of discriminatory voting could not implement any change in election laws affecting voting or changes in polling places, without first obtaining the approval of the Department of Justice, a process known as preclearance. The preclearance requirement was imposed on jurisdictions in which less than 50 percent of the population was registered to vote in 1964. A jurisdiction remains covered by the preclearance requirement unless an exemption is sought through a process commonly referred to as a “bail out.”

Congress has extended the provisions of Section 5 four times, most recently in 2006, when it reauthorized the extension of Section 5 from 2006 to 2032, despite the objection from some members of Congress that renewing the preclearance requirement would represent an overreach of federal power and placed administrative burdens on jurisdictions that have since abandoned discriminatory practices.

In 2009 the Supreme Court noted in Northwest Austin Municipal Utility District No. 1 v. Holder, a lawsuit challenging the extension of the Section 5 provision, that “the law imposes current burdens and must be justified by current needs.”

While the court did not declare preclearance unconstitutional, the decision redefined the law to allow any political subdivision covered by Section 5 to request exemption from federal review. Prior to that decision, in order to obtain exemption from Section 5 preclearance requirements, a covered jurisdiction had to obtain a declaratory judgment from the U.S. District Court for the District of Columbia.

In April 2010, Shelby County, Tenn. filed suit in D.C. court asking that Section 5 of the Voting Rights Act be declared unconstitutional. Shelby County argued that Congress did not have the constitutional authority in 2006 to reauthorize Section 5 of the VRA. The D.C. court upheld the constitutionality of Section 5, a decision that was affirmed by the U.S. Court of Appeals in 2012.

The Supreme Court granted review in Shelby County v. Holder last November. The court will limit its review to whether Congress exceeded its authority under the 14th and 15th Amendments, when it reauthorized Section 5 in 2006, thereby violating the 10th Amendment and Article IV of the Constitution which protects the sovereignty of states to govern without excessive interference.