The U.S. Court of Appeals for Washington D.C. voted on May 18, 2012 to uphold a key provision of the 1965 Voting Rights Act (VRA).  Section 5 of the VRA specifies that certain states, counties, and jurisdictions that have used racially discriminatory voting practices in the past must obtain pre-approval from a federal court in Washington or the Justice Department before making any type of change to their election process.  The law currently effects 16 states, or parts of those states, in the U.S. 

            The lawsuit was brought to the federal appeals court by the county of Shelby in Alabama.  The county objected to the twenty-five year extension of section 5 by Congress in 2006.  At the time of the twenty-five year extension, Congress felt there was enough evidence of continuing racism in the areas affected by Section 5 to warrant the extension.  Judge David Tatel of the federal appeals court wrote for the court’s 2-1 majority decision that “Congress documented hundreds of instances in which the attorney general… objected to proposed voting changes that he found would have a discriminatory purpose or effect.” 

            Lawyers for Shelby County claim that the county is being punished for its past mistakes and racially discriminatory actions that are no longer a problem in the county.  There have been several challenges to the law, but in 2006 the attorney general rejected 626 requests for voting changes that were thought to be discriminatory.  State and local governments also rescinded over 800 requests for voting changes after inquiries by the Justice Department.  There have been no successful challenges to Section 5 of the VRA, but states and local governments are allowed to request exemption from the law if they can prove their locality has not attempted any racially discriminating actions having to do with the election process for ten years.

            Section 5 of the VRA specified that areas that used racially discriminatory practices such as literary tests and had less than fifty percent of their population registered to vote in 1964 were subject to the pre-approval process.  In the one dissenting opinion of the court, Judge Stephen Williams acknowledged that racism still existed in some areas, but that the “coverage formula (of Section 5) appears to be as obsolete in practice as one would expect”.  He felt that a new formula should be created; as he felt only Hawaii would be subject to the law if the same formula was used in today’s political arena, rather than in 1964.

            Coincidentally, one day before the appeals court upheld the extension of the VRA, Wythe County in Virginia was released from its pre-approval process by showing ten years of non-racially motivated voting processes.  Though the agreement must still be approved by the U.S. District Court in Washington D.C., it is unlikely that Wythe County will not be unburdened by the law, as the Justice Department itself reached the agreement with the county and its three political subdivisions.  Shelby County in Alabama did not attempt to appeal to the Justice Department for non-inclusion in the law, but instead directly challenged the constitutionality of the law. 

            Judge Williams also took issue with the law based on the fact that Indiana passed a voter ID statute in its state with no problem, but when Texas and South Carolina tried to pass similar laws, being that they were subject to the pre-approval process, they had to get approval from the Justice Department.  The states’ requests were both denied.  Judge Williams pointed out “Why should voter ID laws from South Carolina and Texas be judged by different criteria from those governing Indiana?” 

            Judge Williams is definitely not the only federal judge to question the constitutionality of Section 5.  In 2009, the case of Northwest Austin Municipal Utility District No. 1 v. Holder was brought to the Supreme Court of the United States.  The court declined to rule on the constitutionality of the law, citing a provision that says any case that can be decided on a non-constitutional basis should be.  Chief Justice John Roberts, who agreed with the majority, did say that he felt the VRA “imposes current burdens and must be justified by current needs.”  The Court also stated at that point that certain districts could apply for exemption from the law, setting up Wythe County’s granted request. 

            Many constitutional scholars see the court of appeals’ decision as an invitation to take the law back to the Supreme Court.  While Chief Justice Roberts was part of the majority that declined to hear the case, he stated in 2009 that a new conservative majority on the Supreme Court may very well consider a challenge to Section 5 of the VRA.  Civil rights advocates, including the NAACP whose legal fund defended Section 5 in this latest case, were excited by the court’s decision.  No court has ever declared the VRA or Section 5 unconstitutional, but with a conservative majority in the Supreme Court and constant challenges to the law, it is highly unlikely that the Supreme Court will not be asked to make a decision on the case.