In addition to the New Haven firefighters case, the U.S. Supreme Court is hearing arguments in another important case. In Northwest Austin Municipal Utility District No. 1 v. Holder, the plaintiff is challenging the constitutionality of Section 5 of the Voting Rights Act.
It’s common knowledge that some jurisdictions tried to keep blacks away from the polls. The infamous poll tax was one method. Over 40 years ago, Congress enacted a law (known as Section 5) that required states like Alabama, Georgia, Mississippi, South Carolina, and Louisiana to seek Justice Department permission to change voting procedures (pre-clearance).
In 1975, Texas was added to the list of states covered by the provision. In 2006, the act was extended for the fourth time – for 25 years. A utility district in Texas that came into existence in 1986 challenged the law. Considering the racial progress made in the last four decades, particularly the election of black officials, the pre-clearance requirement is intrusive and based on out-of-date evidence, the plaintiff contends.
Blogging at National Review Online, Roger Clegg writes:
The legal standard the Court has used in such cases is whether the challenged statute is “congruent and proportional” to the ends of the relevant constitutional provision, here the Fifteenth Amendment, which bans racial discrimination in voting. There are three ways in which Section 5 fails this test: (a) There is no rhyme or reason to the jurisdictions now covered (for example, the statute itself requires use of election statistics that are decades old: Texas is covered but not Arkansas, Arizona but not New Mexico, some New York City boroughs but not others, etc.); (b) it is extraordinarily intrusive in the kowtowing it requires from state and local jurisdictions to the federal government; and (c) it bans much that is not illegal under the Constitution, since the former covers anything with a racially disproportionate “effect” while the latter requires discriminatory intent (for example, the Justice Department has been urged, and the Obama administration is likely, to use Section 5 to block anti-voter-fraud measures on the theory that they “disenfranchise” a higher percentage of blacks than whites).
…
[T]he justices should bear in mind that it is precisely the ideals of the Voting Rights Act and the Fifteenth Amendment that will be jeopardized if they do not strike down Section 5. This statute is not only no longer congruent and proportional to the Fifteenth Amendment: By far its principal purpose is now to violate it.
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