Wednesday, the United States Supreme Court will hear oral arguments in Shelby County Alabama vs. Holder, a case challenging the constitutionality of Section 5 of the Voting Rights Act of 1965, as amended. The deciision, likely to be issued in late June, will have a major impact on election law. So what is the Voting Rights Act and what is at issue before the Supreme Court.
In 1965, Congress adopted the Voting Rights Act. Section 2 applies to all states and forbids any practice or procedure that denies or abridges the right to vote based on race and color. A party can show that a practice or procedure (including the drawing of district lines) abridges the right to vote based on race by showing that minority have less of an opportunity to nominate and elect the candidate of their choice than other racial groups. The case is filed in the local federal court by those seeking to prove discrimination and those individuals bear the burden of proof.
In Section 4, the act created the concept of "covered jurisdictions" which would be subject to speical rules based on past practices. This section was originially temporary but has since been extended (with some new jurisdictions added in an amendment in the 1970s. Some states were covered in their entirety by this section, but, for other states, only some counties were covered and most states were not covered at all. If the entire state is subject to Section 4, individual governments within those states are also subject to Section 4. Section 4 includes a procedure that permits a government within a covered jurisdiction (or the covered jurisdiction itself) to prove that it has stopped discriminating and no longer needs to be covered.
Section 5 provides that those covered jurisdictions must get "preclearance" either from the Department of Justice or a special panel of the District Court of the District of Columbia for changes to election laws (including districting plans). To get clearance, the jurisdiction seeking to adopt the new rule has to show that it does not diminish the abilithy of minorities to elect the candidates of their choosing.
To show how Section 2 and Section 5 work together, let's take a hypothetial state which we will call Saxet. In 2008, Hispanic voters in Saxet were able to elect six Hispanic members of Congress out of 32 seats. The 2010 Census showed that Hispancs were about 37% of the state population. In the 2012 election, Hispanic voters were able to elect five Hispanic members of Congress out of 36 seats. This result suggests a potential violation of both Section 2 and Section 5 as Hispanics ability to pick the candidates of their choice has declined. If Hispanics were able to elect seven Hispanic candidates, however, that minimal increase would show that the new map satisfied Section 5, but there would still be an argument that the map violated Section 2 as Hispanics should be able to elect ten to thirteen members of Congress.
The issue before the Court is the continuation of Section 4 and Section 5. The last time the Supreme Court looked at this issue, they loosened the rules regarding what a government has to do to escape coverage, and a significant number of local governments have managed to get out from under coverage. The Supreme Court also suggested that they had concerns about whether these sections were still needed, despite extensive Congressional findings on this issue in 2006, in light of the successes that minorities have had.
Those challenging Section 5 claim that any law discriminating between states has to be tightly tied to a remedy to current constitutional violations. Those supporting Section 5 note the complete absence of any constitutional language supporting this "rule." They also note that while things are getting better in covered jurisidictions, that is due in part to Section 5, and even with those improvements covered jurisdictions are disporportionately found in violation of Section 2. In light of these continued problems, the supporters of Section 2 argue that it is fair to make these repeat violators prove that they are not making things worse before new voting rules take effect.