A federal appeals court in Washington is reviewing the constitutionality of a provision of the Voting Rights Act that requires certain local and state governments to get permission from the U.S. Justice Department before implementing electoral changes.
Bert Rein, representing Shelby County, Alabama in the suit against the federal government, today urged the U.S. Court of Appeals for the D.C. Circuit to strike down Section 5 of the 1965 law as unconstitutional. U.S. District Judge John Bates ruled for DOJ last September.
Congress in 2006 reauthorized the section for another 25 years in a continued attempt to minimize discrimination against minority voters. Critics contend the section puts too much power in the hands of DOJ over local election-related decisions.
The appeals court heard argument in a ceremonial courtroom to accommodate the more than one hundred spectators.
Rein, name partner at Wiley Rein, told a three-judge panel that the current condition in Alabama does not justify what he called the “extraordinary remedy” of preclearance. Section 5, Rein said, is a “burden on sovereignty” that effectively puts state and local electoral authority in federal receivership.
Rein argued that the record Congress examined in 2006 did not support continued preclearance. “As the Supreme Court has said, the South has changed,” Rein said in court.
“Evidence of voting discrimination is no longer concentrated in the covered jurisdictions and there is no fit between the reasons for imposing preclearance and the formula employed for choosing which jurisdictions will be subject to coverage,” the county’s attorneys said in a brief filed in December. (More background here.)
The Justice Department’s Sarah Harrington of the Solicitor General’s Office, arguing on behalf of the Civil Rights Division, said the reauthorization of Section 5 was a valid exercise of congressional power.
Harrington argued that voting discrimination remains a serious problem in jurisdictions Section 5 covers. She urged the panel judges to give deference to the determination that Congress made about the continued necessity of the preclearance provision.
Harrington told the judges that while instances of voting discrimination in the south have decreased over time, “things have not gotten better enough. There continues to be a problem.”
Circuit Judges Thomas Griffith and David Tatel, sitting with Senior Judge Stephen Williams, did not immediately rule after the hour-long hearing.
The judges peppered both sides with extensive questioning. Griffith asked, among other things, why the panel should not defer to the judgment of Congress after its lengthy examination of voting practices. Congress, Tatel noted during the hearing, found a case by case approach ineffective in thwarting discrimination.
The NAACP Legal Defense and Education Fund, with a team from Squires, Sanders & Dempsey, filed a friend-of-the-court brief in support of the Justice Department.
Lawyers for New York, Mississippi and California also filed a joint brief backing the Justice Department. The three states are among the 16 that are covered in whole or in part by the Section 5 preclearance provision.
“The record assembled by Congress to support reauthorization of Section 5 in 2006 shows what amici states know to be true: that Section 5 continues to play an important role in Mississippi, New York, and California—as well as in the other covered jurisdictions—in remedying and deterring unconstitutional conduct,” the brief said.
Georgia and Arizona state attorneys supported Alabama in the D.C. Circuit, filing a brief that said covered jurisdictions are “denied the fundamental principles of equal sovereignty and equal footing.”
“Because the VRA’s purpose is to eradicate voting discrimination for all of the United States citizens, treating states differently is not congruent with the act’s purposes,” the brief said.
(An earlier version of this post misidentified Sarah Harrington’s position in the Justice Department.)