Tuesday, April 07, 2009

Is Section Five of the Voting Rights Act still valid?

On Tuesday, March 31st, ACS co-hosted a talk by Professors Nathaniel Persily and Ted Shaw on the upcoming Supreme Court case Northwest Austin Municipal Utility District Number One v. Holder, which tests the continuing validity of Section Five of the voting rights act, which mandates pre-clearance of any voting laws or regulations passed by districts with a history of racial discrimination in voting. The regulations on what districts qualify as having a "history of racial discrimination", and how they can be removed from this list, have been changed several times since the passage of the voting rights act.

Professor Persilly opened up by noting the elephant in the room - the election of President Obama calls into question the continuing need for the Voting Rights Act. The case itself challenges the Voting Rights Act on the Bernie standard - Federal power to remedy civil rights violations is proportional to the violations, and the case charges that the law has not kept up with changing circumstances.

As Professor Persilly noted, the election of Obama in itself is not dispositive of the issue. Research shows that while Obama gained 3% over Kerry's numbers in jurisdictions not covered by Section Five, he gained nothing overall in jurisdictions still covered by the Voting Rights Act. While this also is not proof of continuing racial discrimination - there may be other factors involved (covered jurisdictions are more solidly conservative or the like), it is suggestive that there are still continuing differences between covered and non-covered jurisdictions.

Professor Shaw opened by noting that while the renewal of the Voting Rights Act passed the Senate 98-0 and the House nearly unanimously, the actual behavior of legislators was much more nuanced than the figures suggest. Knowing that a constitutional challenge was coming, many legislators spent time inserting seeds into the record to support the challenge to the Act (suggesting they were voting for the act with serious reservations about its continuing constitutional validity) rather than opposing the act itself.

Professor Shaw also went into detail on why the Act has a sunset provision and is limited to specific jurisdictions; to survive Constitutional challenges. Since Federal power to remedy racial discrimination exists only so long as such discrimination exists, a permanent law exceeds the power of Congress. Applying Section 5 to the entire country would also almost certainly exceed Congress's power to remedy specific instances of discrimination.

The case is considered too close to call, and will most likely depend on which way Justice Kennedy rules.


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