Supreme Court to Review Section 5 of Voting Rights Act

[Frodo]

It has begun:

Supreme Court to review key section of Voting Rights Act

By Robert Barnes, Friday, November 9, 3:41 PM

The Supreme Court said Friday it will review a key provision of the Voting Rights Act that has been the federal government’s most forceful tool in protecting minority rights at the polls. The decision ensures that race and civil rights will be the hallmark of the current Supreme Court term.

The challenge to Section 5 of the 1964 Voting Rights Act was launched two years ago, and the court added it to its docket just days after an energized minority electorate played a critical role in the reelection of President Obama, the nation’s first African American president.

The justices said they would decide whether Congress exceeded its authority in 2006 when it reauthorized a requirement that states and localities with a history of discrimination, most of them in the South, receive federal approval before making any changes to their voting laws.

[politicallefty]

I think it's ridiculous that the Court is taking this up all of a sudden after Tuesday (and after over 47 years of being in effect, no less). Shouldn't Section 2 of the 15th Amendment be enough to uphold the VRA in its entirety, which states: "The Congress shall have power to enforce this article by appropriate legislation." Unless the Supreme Court is going to all of sudden say that it is not appropriate legislation, what is the actual case here? It seems to me like the courts should be far more deferential to Congress when you read the actual text of the amendment. I'm sure the so-called strict constructionists on the Court will read the amendment as against Congressional authority while the amendment explicitly authorizes Congressional action. So, once again, this one will come down to Justice Kennedy in another partisan decision. I'm not optimistic about this case.

[True Federalist (진정한 연방 주의자)]

I'm highly optimistic that this will finally be scrapped.  From the original decision on the validity of Section 5: South Carolina v. Katzenbach, 383 U.S. 301 (1966):

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It is not unreasonable that the "exceptional conditions" might no longer apply.  Nor does the elimination of preclearance mean that the States are free to do whatever they like since section 2 of the VRA would remain in place and section 2 doesn't even require an intent to discriminate, only that there be a discriminatory effect.  All eliminating preclearance does is that instead of the preclearance jurisdictions being guilty of voter discrimination until proven innocent, they return to being innocent until proven guilty.

[Frodo]

In the event that Section 5 is thrown out by this court, it would mean that states in the South are going to have to redistrict yet again.  With mid-terms coming up in two years, will those be the first elections affected by the decision or would that be too soon?  Which party would benefit more from the scrapping of Section 5?   

[True Federalist (진정한 연방 주의자)]

Section 5 going away would not require redistricting.  With section 2 still in place, any redistricting plan that the States might choose to implement would still be subject to lawsuits concerning possible minority disenfranchisement.

[J. J.]

Section 5 going away would not require redistricting.  With section 2 still in place, any redistricting plan that the States might choose to implement would still be subject to lawsuits concerning possible minority disenfranchisement.

Wouldn't the same be true in non-Southern states.  If PA, which is not covered currently under the Act, would draw district boundaries that were race based, couldn't they be sued under Section 2?

[True Federalist (진정한 연방 주의자)]

Section 5 going away would not require redistricting.  With section 2 still in place, any redistricting plan that the States might choose to implement would still be subject to lawsuits concerning possible minority disenfranchisement.

Wouldn't the same be true in non-Southern states.  If PA, which is not covered currently under the Act, would draw district boundaries that were race based, couldn't they be sued under Section 2?

Yes.  Section 2 applies everywhere.  The preclearance provisions of section 5 were enacted because under previous civil rights laws the Southern States had largely engaged in a game of whack-a-mole.   A law would be passed or a suit would be brought to end one method of keeping the ns from voting and while the state fought the suit or dragged their heels on implementing the law, they'd enact another method to do the same thing once the first had been struck down.  Thing is, the methods that were employed back in the 50's and 60's are effectively banned wholesale and to the degree other methods are used now, they don't have even close to the same level of impact.  Other than districting issues, there isn't really anything that could majorly affect voter enfranchisement these days, and districting plans would still be subject to section 2 suits, the same as they always have been since 1965.