Have the Past Three Years Strengthened the Case for Section Five's Constitutionality?

At the end of October, the U.S. Supreme Court will likely announce whether it will take up the question of the constitutionality of section 5 of the Voting Rights Act of 1965 – the so-called “preclearance” provision, which prevents certain covered jurisdictions from implementing changes in their voting laws and practices unless they can demonstrate to the U.S. Attorney General or a three-judge district court in the District of Columbia that the change will not be discriminatory in either effect or purpose.

Three years ago, the Supreme Court seemed poised to decide that very question in Northwest Austin Municipal Utility District No. One v. Holder (NAMUDNO), but the Court ultimately resolved that case on nonconstitutional grounds, leaving the question of section 5’s constitutionality for another day. Nevertheless, Chief Justice Roberts’ opinion for the Court inNAMUDNO stated that the “Act’s preclearance requirements and its coverage formula raise serious constitutional questions,” virtually ensuring further challenges to section 5.2 Since then, several covered states or subjurisdictions have filed new cases challenging the continued constitutionality of section 5, and a case brought by Shelby County, Alabama, on the Court’s docket for October 26, now presents the most likely opportunity for the Court to add this momentous issue to an already highly charged docket of constitutional questions.3

As it turns out, the Court’s decision to step back from the brink of a constitutional ruling in NAMUDNO in 2009 has left section 5 in place during a particularly critical three years, during which the importance of section 5 as a bulwark against racial discrimination in voting has been thrown into sharp relief. Several developments in the past three years suggest that the case for upholding section 5 against constitutional challenge has been strengthened compared to the situation in 2009.