William Perry Pendley

Not all enactments undertaken pursuant to Congress’s powers under the Fifteenth Amendment, such as the Voting Rights Act of 1965, pass judicial scrutiny, however, given that congressional involvement in matters normally left to the States is extraordinary and extra-constitutional. Thus, beginning in 1997, the Supreme Court, in a manner consistent with its 1966 Voting Rights Act ruling, demanded that Congress set forth a historical record to justify “exceptional” and “unique” actions, such as those undertaken three decades earlier. Over the next several years, the Court struck down acts of Congress that failed to meet that test.

It was in this context that, in 2006, the District filed a federal lawsuit arguing, among other matters, that Congress’s 2006 reauthorization of Section 5, lacking any record as to why the “exceptional” action adopted in 1965 was still justified in 2007, was unconstitutional. In May 2008, a three-judge panel of the federal district court for the District of Columbia brushed the challenge aside. On January 9, 2009, the Supreme Court agreed to review the ruling.

One week after Election Day 2008, Abigail Thernstrom and Stephan Thernstrom, authors of America in Black and White: One Nation Indivisible

(Simon & Schuster, 1997) and the Nation’s top experts on race relations, writing in the Wall Street Journal, called for an end to the “aggressive federal interference in state and local districting decisions enshrined in the Voting Rights Act. . . .” They concluded, “[With the election of President Obama,] American voters have turned a racial corner. The law should follow in their footsteps.” Sometime in June 2009, the Supreme Court will decide if the law will or if, notwithstanding the fanfare and hoopla, Obama’s election means nothing after all.

William Perry Pendley

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

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