William Perry Pendley

On February 5, in a case that may reach the U.S. Supreme Court, a three- to four-week trial begins in Casper, Wyoming. The American Civil Liberties Union, on behalf of five American Indians in rural, sparsely populated Fremont County, claims the County violated Section 2 of the federal Voting Rights Act (VRA) because of the alleged inability of American Indians to be elected Commissioner. The ACLU demands that the five commissioners—heretofore elected at-large, pursuant to state law—be elected from single-member districts and that one district be gerrymandered racially to guarantee election of an American Indian.

Understanding the ACLU lawsuit requires some history. In 1965, with Section 2 of the VRA, Congress codified the Fifteenth Amendment’s guarantee that citizens could not, “on account of race, color, or previous condition of servitude,” be denied the vote; meanwhile, in Section 5, Congress required Justice Department “preclearance” of voting changes—in states and counties with a history of racially discriminatory conduct that denied citizens the right to vote—to determine if the change would have an adverse impact on voting equality. In 1966, the Supreme Court upheld the constitutionality of Section 5; however, in 1980, the Court refused to apply Section 5’s reasoning to Section 2, holding that Section 2 incorporated the Fifteenth Amendment and therefore required proof of racially discriminatory intent. Hence, unless a mechanism, such as at-large voting, is adopted or maintained to deny citizens the right to vote—on the basis of race or color, it is constitutional.

Congress responded angrily and, in 1982, amended Section 2 to overturn the Court’s ruling. Congress made clear that its “principle immediate target” was “the at-large system of election” and that it objected to the Supreme Court’s “intent test” because intent in a Section 2 violation is “[ir]relev[ant]…divisive [and] difficult [to prove].” Constitutional scholars believe Congress exceeded its constitutional authority by enacting legislation that prohibits facially constitutional conduct in the absence of a history of widespread, egregious, racial discrimination in voting. Moreover, Congress relieved those filing Section 2 lawsuits of the obligation to do what litigants must ordinarily do—carry the burden of proving intent. Thus, lawyers in the Justice Department and in the ACLU were given the ammunition to file lawsuits, not just in the South, but across the country, including Wyoming, the Equality State.

William Perry Pendley

William Perry Pendley is President and Chief Legal Officer at the Mountain States Legal Foundation.

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