In late February, the United States Supreme Court will consider a case that invokes American history, constitutional meaning, and the realities of present-day voting in a large portion of our nation. Shelby County, Alabama has challenged the proper scope of key enforcement provisions of the Voting Rights Act – and though pundits are making this case racially charged, it is far more a question of the power of federal versus state governments under the Constitution.
Shelby County, Alabama is a bustling suburban county near Birmingham. It’s a remarkable, growing community, like thousands of similar communities all across America.
Yet Shelby County, like hundreds of jurisdictions across the so-called “Old South,” remains under strict and costly supervision by both the federal courts and the U.S. Department of Justice. The enactment of the Voting Rights Act in the early 1960s, which was designed to remedy instances of voter intimidation held over from the Jim Crowe era, empowered federal authorities to strike down the repugnant and unconstitutional tactics of a bygone era.
One of the key elements of the enforcement is that any changes to voting districts and election law must be submitted for thorough review and approval by the Justice Department and the courts. The record of success, at least in terms of eliminating instances of illegal behavior, is unquestioned.
Fast forward to the 21st century, and evidence of ongoing discrimination is nearly non-existent in the so-called “covered” jurisdictions. This is not personal opinion; no evidence of a systematic attempt to intimidate or suppress voting was presented to Congress when it was considering reauthorizing Sections 4(b) and 5 of the Voting Rights Act in 2006. Yet Congress reauthorized the preclearance and enforcement provisions for an additional 25 years, leaving hundreds of communities and, indeed, entire states under Justice Department and federal court authority.
The expensive hoop-jumping required to comply with this kind of scrutiny has rightly raised the ire of many jurisdictions, and not just because it’s burdensome in the face of no provable ongoing discrimination. Rather, the far-ranging power and authority granted to the Justice Department and federal courts in this area is a constitutional threat to state sovereign authority and ability to make necessary changes to election laws in the states.