April 28, 2009

The Voting Rights Act in the Age of Obama

This week the Supreme Court will hear oral argument in Northwest Austin Municipal Utility District No. 1 v. Holder.  The case calls upon the Court to decide whether Section 5 of the Voting Rights Act of 1965 is constitutional.  That provision requires selected jurisdictions to get approval from the DOJ to when they want to make any change to any practice related to voting.  Roger Clegg provides three reasons why Section 5 fails the relevant legal standard.
The legal standard the Court has used in such cases is whether the challenged statute is “congruent and proportional” to the ends of the relevant constitutional provision, here the Fifteenth Amendment, which bans racial discrimination in voting. There are three ways in which Section 5 fails this test: (a) There is no rhyme or reason to the jurisdictions now covered (for example, the statute itself requires use of election statistics that are decades old: Texas is covered but not Arkansas, Arizona but not New Mexico, some New York City boroughs but not others, etc.); (b) it is extraordinarily intrusive in the kowtowing it requires from state and local jurisdictions to the federal government; and (c) it bans much that is not illegal under the Constitution, since the former covers anything with a racially disproportionate “effect” while the latter requires discriminatory intent (for example, the Justice Department has been urged, and the Obama administration is likely, to use Section 5 to block anti-voter-fraud measures on the theory that they “disenfranchise” a higher percentage of blacks than whites).
Related to the legal arguments is how the election of a black president should influence the court.  Andy Liptak points to the inevitable question: "Is a law rooted in the age of Jim Crow still needed in the Obama era?"  Even liberals are unsure how to treat Obama's election when it comes to issues related to race.
Ellen D. Katz is a liberal law professor and a big fan of the Voting Rights Act of 1965, which she calls the most effective civil rights legislation in American history. “It’s sacred,” she said. “It’s holy.”

But Professor Katz is torn about what the Supreme Court should do in a case asking it to strike down a central part of the law. She cannot shake the feeling that the election of the nation’s first black president has changed everything.

“This election was momentous,” said Professor Katz, who teaches voting rights and legal history at the University of Michigan, “and it arguably presents the moment when Congress should close out this regime.”

How the Court treats Obama's election in this context may foreshadow how the Court will deal with other matters such as racial preferences going forward.

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