Bipartisan Members of Judiciary Committee Affirm: The Work of Section 5 is Not Done
Today, former Chairmen of the U.S. House Judiciary Committee, Rep. F. James Sensenbrenner, Jr. (R-Wis.) and Rep. John Conyers, Jr. (D-Mich.) responded to oral arguments at the U.S. Supreme Court in the case Shelby County v. Holder. The bipartisan group of members filed a brief as amici curiae on February 1, 2013 to affirm what the Supreme Court has declared for over 50 years: Congress can enforce Section 5 of the Voting Rights Act under Congress’s 15th Amendment Powers. Specifically, Section 5 halts discrimination at the outset of any voting change made in a state. States and local jurisdictions, under Section 5, must seek preclearance from the Justice Department or a Federal Court in the District of Columbia in order to bring the voting change into effect. Shelby County requests that the court declare that Congress exceeded its authority in 2006, when a bipartisan group of Members led the way to extend Section 5. Following oral arguments, the Representatives released this joint statement:
Rep. F. James Sensenbrenner, Jr.: “The fifteenth amendment to the U.S. Constitution declares that the right of citizens to vote shall not be denied or abridged on account of race or color. However, as we all know, this has not always since been the case. While significant progress has been made, the Voting Rights Act remains a vital piece of our nation’s moral commitment to never again permit racial discrimination in elections. Section 5 not only worked to correct past injustices, but it remains essential to the continued protection of minorities’ right to vote in covered districts. I stand proudly by my colleagues in protecting all Americans' most fundamental right.”
Rep. John Conyers, Jr.: “Today, Justices of the Supreme Court heard oral arguments to consider whether Congress acted within its authority under the 15th Amendment to reauthorize Section 5 of the Voting Rights Act. At the heart of their inquiry was the record compiled by Congress in determining that the preclearance provision of Section 5 is still necessary to protect minority voting rights in the 21st Century.
“Justice Kennedy echoed the Supreme Court’s hint in the 2009 case, Northwest Austin Municipal Utility District No. 1 v. Holder, that Section 5 may be unnecessary because ‘times have changed.’ However, questions from Justices Sotomayor, Breyer, Kagan, and Ginsburg seemed to suggest that although times have changed, eliminating Section 5 and relying upon Section 2 of the Voting Rights Act was not enough. The justices suggested that the number of voting changes blocked in covered jurisdictions and the record before Congress strongly suggested otherwise. In 2006, Congress found that attempts to disenfranchise voters are still being made in the 21st Century. Congress came to this conclusion after it had amassed a record of over 15,000 pages, 20 hearings, and testimony of over 90 witnesses.
“A majority of the justices also questioned whether the facts in this case were appropriate as a facial challenge to the Voting Rights Act, as opposed to an applied challenge to the law. This case presented a ripe opportunity for the Justices to question why Shelby County challenged the Constitutionality of the law, rather than seeking the bailout process created by Congress for covered jurisdictions with clean records. Congress created the process of bailout for jurisdictions with a clean record to be released from Section 5 coverage.
“A clean record is far from what Shelby County has. Since 1982, Alabama has had up to 240 discriminatory voting laws blocked by Section 5 objections, and Shelby County has had a voting law blocked as recent as 2008. However, Shelby County has not applied for bailout. Instead Shelby County has gone to the court and asked the Court to invalidate Section 5, which is like trying to kill a fly with a sledge-hammer.
“Shelby County wanted the Justices to ignore their record of blocked voting changes, and as Justice Sotomayor stated, ‘what you’re asking us to do, which is to look at the record of all the other states or all the other counties [instead].’ Likewise, Justice Kagan rightly pointed out that although Shelby County argued that Section 2 of the Act was an adequate remedy, the Justice proposed that if Section 2 were the standard under a new formula created by Congress, Alabama would be the ‘number one state on the list’ and ‘number two state on the list’ in Section 5 violations.
“Section 5 is a part of a Constitutional imperative set by the 15th Amendment to ‘enforce by appropriate legislation’ laws that ‘deny a citizen the right to vote based on that citizen’s race, color, or previous condition of servitude.’ Although Justice Scalia mischaracterized Congress’s work under Section 5 as the “perpetuation of racial entitlements,” we believe the Court will continue to give ‘deference to the considered judgment of the People’s elected representatives.’ Congress continues to find that racial discrimination in voting is present, and remains concentrated in places, like Shelby County.
“The precedent set by the court is clear: Congress gets to define the problem. The Voting Rights Act and the careful study of discrimination conducted by the Congress deserves the Court’s continued deference.”