In 2006, when Congress reauthorized parts of the Voting Rights Act for another quarter century, there were 870 black elected officials in Alabama. In many respects, to say that the various governments in the South – local and state – currently maintain discriminatory voting practices is to say that minorities in powerful elected offices are part of the group doing the discriminating.
By contrast, as the attorneys for Shelby County have argued, if the desire is to mandate preclearance on jurisdictions where there is actual evidence of voter problems, states like New York, Illinois and Tennessee would have been covered. They are not.
As we argued before the United States Supreme Court in the similar 2009 NW Austin Municipal Utility District No. 1 v. Holder case, “the lack of current evidence of intentional discrimination with respect to voting [meant that Section 5 of the Voting Rights Act] could no longer be justified as an appropriate mechanism for enforcement of the Fifteenth Amendment.”
As we now argue before the Supreme Court in the Shelby County appeal, Congress found in 2006 that first generation barriers to voting had been virtually eliminated. Therefore, relying on a speculative, non-evidence-based formula to determine whether states should be covered is arbitrary “reverse-engineering” that exceeds Congress’ authority and violates the Constitution.
The “final stand” argument for most such defenses of excessive federal authority, as in this case, is that federal authority is an effective deterrent to bad behavior (despite the willingness of the federal courts to hear civil rights cases, as in the rest of the nation). The high court will decide to what extent that “deterrence” does damage to the rest of the Constitution.