The Independent View: Supreme Court and Voting Rights

In Shelby County v. Holder, which the Supreme Court will hear this month, the issue is whether Section 5 of the Voting Rights Act remains necessary to prevent racially biased voting laws in nine states and part of seven others with egregious histories of discrimination against minority voters.

Under Section 5 of the Voting Rights Act, certain covered jurisdictions, determined according to Section 4 of the act, are required to seek preclearance for any changes in voting qualifications, standards, practices or procedures from the U.S. District Court for the District of Columbia, or from the U.S. Attorney General, prior to their implementation.

Section 4 of the act provides that a covered jurisdiction may seek to “bail out,” or remove itself from such coverage, and therefore be exempted from the preclearance requirements, by seeking a declaratory judgment before a three-judge panel in U.S. District Court for the District of Columbia. A bailout judgment can be issued only if the court determines that the jurisdiction meets certain eligibility requirements for bailout contained in the statute, including a 10-year record of nondiscrimination in voting-related actions. The act also provides that the attorney general can consent to entry of a judgment of bailout only if, based upon investigation, the attorney general is satisfied that the jurisdiction meets the eligibility requirements.

In Shelby, the district court noted that DOJ had objected in 2008 to an annexation of the city of Calera, a “governmental unit” within Shelby County, and that Shelby County held several special elections under one county ordinance that had not been submitted to DOJ for preclearance. DOJ asked the court for six months of discovery to investigate Shelby County’s eligibility for bailout. The court denied the request and permitted no discovery into the eligibility question.

Justice wants to be able to get up before the Supreme Court in the Shelby County case and show that an entire state was able to bail out of Section 5. They want to argue that there is a viable way out for covered jurisdictions, including states, and that therefore the Supreme Court should not decide the constitutional issue.

Last year, The Justice Department announced that it has reached an agreement with the Browns Valley Irrigation District, a special district in California, that will allow for the district to bail out from its status as a “covered jurisdiction” under the special provisions of the Voting Rights Act, and thereby exempt the district from the preclearance requirements of Section 5 of the Voting Rights Act. The district covers part of Yuba County, which is a jurisdiction subject to Section 5. The agreement is in the form of a consent decree filed in the U.S. District Court for the District of Columbia.

With all the attempts of Voter ID laws and gerrymandering, and with the bailout option of Section 4, we need the entire United States to be under Section 5.

There is another part of Section 4 that allows the voters to partition for the Justice Department to examine a bailout county or state and see if they have failed a bailout, and if proven, put them back on preclearance.