Shelby County v. Holder : Oral Argument Preview

On Wednesday, February 2, U.S. District Judge John Bates will hear oral argument in one of the most important civil rights cases pending in the lower federal courts, Shelby County v. Holder, a case with nationwide ramifications for the right to vote and our democracy. At issue in Shelby County is the constitutionality of Congress' nearly unanimous 2006 decision to renew one of the most important and successful provisions of the Voting Right Act -- the Act's preclearance requirement (which requires certain jurisdictions with a history of racial discrimination in voting to obtain federal permission before altering their voting laws or regulations).

The Supreme Court has, on four separate occasions, upheld the constitutionality of the Act's preclearance provision - in 1966, 1973, 1980, and 1999 - concluding that Congress has broad power under the explicit grant of enforcement power in the Fifteenth Amendment to prevent and deter racial discrimination in voting. But in June 2009, in NAMUDNO v. Holder, the Supreme Court came dangerously close to striking down this critical provision. In an 8-1 ruling authored by Chief Justice John Roberts, the Court declined to decide the constitutionality of Congress' 2006 renewal of the preclearance provision, but invited future challenges. Shelby County, Alabama, accepted the invitation, filing suit earlier this year in the U.S. District Court for the District of Columbia. Judge Bates has set aside two and-a-half hours for oral argument to carefully consider Shelby County's claim.

The Voting Rights Act is one of the nation's most important and iconic civil rights statutes, a critical protection of our multi-racial democracy. First enacted in 1965 after nearly a century of concerted resistance to the Fifteenth Amendment, and renewed by Congress in 1970, 1975, 1982, and 2006, the Act has been instrumental in securing the Constitution's guarantee of the right to vote free from racial discrimination for millions of Americans. Striking down one of its most important provisions would be a tremendous step in the wrong direction. There is good reason to hope that Judge Bates won't take that step.

The text of the Constitution specifically empowers the federal government to secure the right to vote free of racial discrimination. We've been hearing a lot in the last month about how important it is to read the Constitution in order to understand the scope of the constitutional powers of the federal government. Under the text, Shelby County should be an easy case. Proposed in 1869 and ratified in 1870, the Fifteenth Amendment provides that "[t]he rights of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude." To make this guarantee a reality, the Amendment then provides that "[t]he Congress shall have the power to enforce this article by appropriate legislation." Thus, the text that "We the People" added to the Constitution explicitly gave Congress the authority to ensure that the right to vote free from racial discrimination was fully enjoyed by all Americans.

As CAC's amicus brief in Shelby County demonstrates, history shows that the Framers of the Fifteenth Amendment wrote this enforcement language to give Congress broad authority - no less sweeping than Congress' other expressly enumerated powers - to prevent and deter racial discrimination in voting. The Framers of the Fifteenth Amendment were fully aware that Congress needed broad authority to enact prophylactic legislation, such as the Voting Rights Act, to root out all forms of racial discrimination in voting. They recognized the grim reality that many states would contrive new rules to deny or abridge the right of African Americans to vote on account of their race. Sadly, the Framers were all too prescient in realizing that Congress would need powerful tools, like the Voting Rights Act, to ensure that the right to vote was fully enjoyed by all Americans, regardless of race. Our brief also responds to Shelby County's erroneous suggestion that recent Supreme Court cases interpreting the Fourteenth Amendment call into question the constitutionality of the Voting Right Act.

When large bipartisan majorities of Congress voted to renew the Voting Rights Act in 2006 by votes of 98-0 in the Senate and 390-33 in the House, they were acting in complete accord with their constitutional obligation to protect the right to vote. Before renewing the Act, Congress held 21 hearings, interviewed more than 90 witnesses, and found that jurisdictions required to preclear had engaged in thousands of discriminatory electoral practices between 1982 and 2006. In deciding Shelby County, we hope that Judge Bates honors the text and history of the Fifteenth Amendment, and defers to Congress' nearly-unanimous judgment that the Voting Rights Act, including the preclearance provision, is still necessary to stamp out racial discrimination in voting.

Please check back after Wednesday's argument for our reaction and analysis.

Cross-posted on Text & History.