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How urgent is the Section 5 issue?

While much of the rest of the nation was diverted for the holidays, a group of lawyers in Washington pressed on to prepare new legal papers in hopes of getting a speedy decision — perhaps in time for the 2012 elections — on the constitutionality of the federal law that many consider history’s most important guarantee of minorities’ voting rights.  Having barely missed the chance in 2009 to get the Supreme Court to strike down Section 5 of the 1965 Voting Rights Act, challengers are seeking to set up a new test case as quickly as they can.  They may get their wish, at least in lower federal courts.

Three days after Christmas, attorneys for a group of opponents of Section 5, who live in the small community of Kinston in eastern North Carolina (population about 24,000), urged the D.C. Circuit to take unusual steps to decide their case in close tandem with an already pending challenge there from Shelby County, Alabama.   The Kinston lawyers even offered to forfeit the usual opportunity for an oral argument, if that would move the case along.

“The public has a compelling interest in a prompt and definitive resolution of Section 5’s facial constitutionality during the upcoming election year,” the attorneys said in a motion to expedite their appeal, and to assign it to the same three-judge panel that is reviewing the Shelby County case.  “Section 5 will have a sweeping effect on the 2012 elections, because it will affect redistricting, voter-identification laws, polling-place locations, early-voting hours, and any other voting change” in all or parts of 16 states that are subject to Section 5. The Justice Department, the attorneys told the Court, does not object to those requests.

Section 5 has been under steady constitutional challenge since the original Act was passed in 1965, but it has survived all of the challenges so far, although it had appeared to be very much at risk two years ago when the Supreme Court in the case of Northwest Austin Utility District v. Holder questioned whether its formulas for which state and local governments are covered may be out of date and may no longer be justified in the same form.   The Court, however, apparently was not yet ready to strike down Section 5 and wound up easing the way for covered governments to “bail out” of coverage.  The criticism within the Court has prompted challengers to mount a series of new challenges.  The ones in the District of Columbia appear to be moving along most rapidly.

Under Section 5, a state or county government that had a history of racial bias in past voting practices cannot put any change in election laws into effect until it has been legally approved in Washington, either by the Justice Department or by a three-judge U.S. District Court.  But in the Kinston case, the challengers went beyond the clearance system, and filed a constitutional challenge claiming that Congress had no power to pass Section 5, and certainly no power to extend it for 25 years when it did so in 2006.  That is the same direct challenge approach that Shelby County took.

The new legal filings in the Kinston case were handed in at the Circuit Court just six days after U.S. District John D. Bates of Washington — in his second ruling this year upholding Section 5 — did so in the Kinston case, which raises issues that have never been tested in other challenges to that provision.  In September, Judge Bates had upheld the section’s validity in the Shelby County case, and that case already is proceeding on an expedited basis, with a hearing set for January 19 before the Circuit panel.  (Shelby County v. Holder is proceeding under Circuit docket 11-5256.  The Kinston case, LaRoque, et al., v. Holder, is docketed as 11-5349.)

If the Circuit Court accepts the schedule the Kinston challengers proposed, they would file their opening legal brief swiftly — five days from today — and the government brief would be due February 13, with the Kinston reply due February 21.   Oral argument would be “as soon as is practicable,” the motion suggested.  But it said that “if hearing argument would delay resolution of this appeal and the panel would not find it necessary, [the challengers] are willing to waive argument.”

While the Justice Department does not oppose fast-track treatment of the Kinston appeal and assignment of it to the Shelby County panel, it had advised the Kinston legal team that the Department disagreed “that resolution of this case is so urgent” as to require the abbreviated schedule that Kinston’s counsel proposed, the motion said.  The Department’s lawyers wanted an extra eight days to file their response brief.

The briefing was completed in the Shelby County case on December 15, so the two cases would proceed on differing schedules.  But the motion urged the Circuit Court to decide the two cases “contemporaneously” because their case raises issues against Section 5’s constitutionality that are not involved in the other case.  While briefing in the Kinston case would run beyond the scheduled January 19 hearing on Shelby County, the motion said, the Circuit Court would at least be able to decide them at the same time, especially if the same panel handles both.

Like the Shelby County challenge, the Kinston challenge contends that Section 5 is unconstitutional in all respects, because it was beyond Congress’s authority to enforce the post-Civil War constitutional amendments.  The Shelby County challenge argues that the provision violates not only the Fourteenth and Fifteenth Amendments, but also the Tenth Amendment (the “states rights” amendment), and Article IV of the Constitution, which guarantees each state’s citizens all of the “privileges and immunities” that citizens in other states have.

Kinston’s appeal, however, goes further.  For the first time in any Section 5 case, it makes a claim that Section 5 actually discriminates on the basis of race against whites in states that are covered by it — an equality argument that is aimed directly at changes Congress made in Section 5 when it reenacted the provision in 2006.  Congress made several changes in the provision then, and those have not been targeted in court until now, in the Kinston case.  Judge Bates relied heavily upon his Shelby County ruling in turning aside Kinston’s broad challenge to Section 5, but then said he had to apply different analysis to the equality argument.  He wound up rejecting that challenge, too.

Section 5, although never free from controversy, is at the center of new disputes this election year because the resistance of covered states and local governments is being matched by stepped-up enforcement efforts by the Obama Administration’s Justice Department.  Attorney General Eric Holder recently made a major speech vowing to vigorously challenge a number of Republican-sponsored limitations on voters’ rights, and promised a more vigorous enforcement of Section 5.   His Department, for example, used that section recently to veto as racially discriminatory a new photo ID requirement for voters in South Carolina — a veto that the state’s governor has vowed to aggressively challenge.

The Supreme Court is already involved in the new controversy.  It is scheduled to decide a major case on Section 5 during the current Term.  On an expedited basis, it is hearing three cases from Texas involving the validity of court-approved redistricting plans for seats in the Texas legislature and in the Texas delegation in the U.S. House of Representatives.  Briefing is continuing in those cases, and oral argument is set for the afternoon of January 9, when the Court returns from its holiday recess.

The Justice Department contends that the Texas legislature’s new plans for the election districts for the state house and the U.S. House are illegal under Section 5.  Minority advocacy groups are making the same claim against the new districts for the state senate.

If the D.C. Circuit moves with unusual dispatch with the Shelby County and Kinston cases, it is conceivable that one or both of them could reach the Justices before they recess the current Term late next June.  The challengers seem determined to achieve that schedule, if possible.

If the Justices were inclined to take on that dispute this Term, they might well have to schedule a special sitting, since they are now due to complete oral argument on this Term’s cases on April 26.   With the Circuit Court proceeding on a schedule with oral argument not likely until March in the Kinston case, and with the prospect that they would be decided together,  it is difficult to see how either of the cases could reach the Court in time for a decision prior to the fall election, without a special session.



Recommended Citation: Lyle Denniston, How urgent is the Section 5 issue?, SCOTUSblog (Jan. 1, 2012, 9:27 PM),