Section 5 of the Voting Rights Act requires some state and local governments to obtain federal clearance for changes in voting procedures. In 2008 the Supreme Court said the section needed updating.
This photo shows the covered Supreme Court building in Washington in September 2012, with a protective scrim, as work continues on the facade.
Alex Brandon/AP/File
EnlargeIt is recognized as the most powerful and effective civil rights law in American history.
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So why is the US Supreme Court being asked to declare a major portion of the landmark Voting Rights Act of 1965 unconstitutional?
On Wednesday, the high court is set to take up a legal challenge filed on behalf of Alabama?s Shelby County, alleging that Congress overstepped its authority when it voted overwhelmingly in 2006 to reauthorize Section 5 of the Voting Rights Act (VRA) for 25 years.
At issue in the case, Shelby County v. Eric Holder (12-96), is a section of the law that gives the federal government extraordinary power to prevent state and local governments from discriminating against minority voters by undercutting their political clout in elections.
In 1965, when the VRA was first enacted, many states, particularly in the Deep South, were actively working to prevent black and other minority voters from effectively exercising their right to vote. They had done it for decades through threats of violence, poll taxes, and literacy tests.
Congress outlawed those blatant tactics, but the discrimination continued in more creative and subtle ways.
To counter it, Congress enacted Section 5 of the VRA. It required certain jurisdictions with a demonstrated history of discrimination in voting to submit any changes in their voting procedures to the Justice Department or a three-judge panel in Washington for approval before any change could take effect.
The measure required federal officials or judges to examine the changes and determine if they were discriminatory or would otherwise have a detrimental effect on minority voting.
There is no dispute about the effectiveness of the measure. It worked well and continues to work well.
The question now is whether discrimination in voting ? nearly 50 years after the 1965 VRA was first passed ? continues to be so egregious as to justify the extraordinary measure of requiring certain targeted state and local governments to obtain permission from Washington before they are allowed to alter their own voting procedures.
When it was first passed, Congress authorized the extraordinary measure for five years. It has since been reauthorized four more times, including for 25 years in 1982 before the 25-year extension in 2006. But instead of reevaluating each covered jurisdiction based on whether or not there is contemporary evidence of discrimination, federal lawmakers decided to continue to rely on the original criteria used in the 1960s and 1970s to determine the most egregious jurisdictions in the country.
Many of the covered jurisdictions, Shelby County among them, insist this is unfair.
The central thrust of Shelby County?s argument boils down to one word: federalism.
Those challenging the constitutionality of Section 5 are asking the high court to strike a balance between Congress?s power to fight discrimination and the constitutional requirement that states be treated as co-equal sovereigns.
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