Roger Clegg and I recently reported on the lawsuit filed in the first week of April on behalf of residents of Kinston, N.C., contesting the constitutionality of Section 5 of the Voting Rights Act. Section 5 is the supposedly temporary “emergency” measure first passed in 1965 that requires states like Alabama to submit any voting changes, no matter how minor, to the Justice Department or a three-judge panel in the District of Columbia for approval before they can take effect. A second lawsuit was filed yesterday by Shelby County, Alabama (complaint can be found here).
Ed Blum of the Project on Fair Representation is providing the resources for this lawsuit. The same organization was behind Northwest Austin Municipal Utility District No. One v. Holder, which was decided last term by the U.S. Supreme Court; the Court avoided the constitutional issue, ruling for NAMUDO on alternative statutory grounds under Section 5.
The most interesting fact in the new complaint is a crucial point about voter registration and turnout in Shelby County. When Congress renewed Section 5 for another 25 years in 2006, it did not update the triggering formula for determining coverage under the law, meaning that states like Alabama and counties like Shelby are covered based on 40-year old election returns. Forty years ago, black voter turnout was very low due to widespread discrimination that has since disappeared from the South. Today, registration and voting by blacks is as high as or even exceeds that of whites in many covered states, and there is no evidence of any systematic barriers of any kind to registration and voting. If election returns from the last three presidential elections had been considered by Congress when it renewed Section 5 instead of election data from 1964, Shelby County would not be covered under the “emergency” provisions of the Voting Rights Act.
Both the Kinston case and the Shelby County case stand a good chance of ending up before the Supreme Court. Given the evidence, it will be very difficult for the Court to uphold the constitutionality of this law.