In a case one expert deemed as important as Bush v. Gore, the Supreme Court will hear a challenge to Section 5 of the Voting Rights Act on Feb. 27.
Professor Michael J. Pitts of Indiana University’s Robert H. McKinney School of Law said, “I think it is an enormous deal. There is no more sacred statute than the Voting Rights Act. Section 5 has been a cornerstone. It covers all or part of 15 states. It covers all levels of government,” from water districts to city councils, and federal offices.
“It touches every aspect of democracy,” Pitts said.
The challenges to the law are about federal overreaching and whether or not minority protections are still needed 48 years after the law was passed.
“There is absolutely a genuine question about the constitutionality [of Section 5],” Pitts said. “To say there isn’t would be to ignore what the Supreme Court has done over the years.”
Since the Voting Rights Act became law in 1965, certain places with a history of discrimination against minority voters must get federal preclearance before they make any changes to voting procedures or rules, including redistricting, voter identification laws, polling places, and early voting times. That is Section 5.
In multiple cases over the years, courts have ruled that preclearance is still needed and legal, but the Supreme Court has not definitively stated that it is constitutional.
Shelby County, Ala., pre-emptively sued the Department of Justice over a redistricting that may have diluted minority votes. Shelby County v. Holder is what the Supreme Court is considering.
“Redistricting is essentially where politicians get to chose what voters get to choose them,” Pitts said.
Aside from the election of President Barack Obama, most elections are polarized along racial lines—white people elect white representatives, black people elect black representatives, according to Pitts.
“The problem can become if you don’t have majority minority districts,” he said. Then minority people do not have a chance to choose their representatives.
If the court ends preclearance, the effects will be felt gradually over 5 to 10 years, according to Pitts. Especially in rural areas in the South, it might bring a return to all-white government bodies, which few would want.
“I think you would see a lot of retrogression or backsliding on minority voting,” said Pitts.
Elisabeth MacNamara, president of the League of Women Voters of the United States, said in a statement on the organization’s website, “With the upcoming Supreme Court case, the President and the nation must not underestimate the importance of protecting and defending the Voting Rights Act (VRA). The League believes that overturning Section 5 of the VRA would have dire consequences and would lead to disenfranchisement for millions of voters.”
Pitts said that he does not know if he would describe himself as optimistic about Section 5 being upheld.
On the other hand, he said, “There will have to be five votes willing to strike down an iconic piece of civil rights legislation.”
The prestige of the Supreme Court could be harmed if it were willing to do that, “especially considering the state it is coming from, the legacy of Alabama,” Pitts added.
Shelby County is a suburb of Birmingham, where a church bombing killed three African-American girls and where Martin Luther King was jailed.
ABC News interrupted a 1965 broadcast of “Judgment at Nuremberg” to show Alabama police and state troopers attacking civil rights demonstrators with clubs, dogs, and fire hoses, according to Pitts. The brutality against nonviolent protestors on the March 7, 1965 march across the Edmund Pettus Bridge in Selma, Alabama was a watershed moment in the civil rights movement.
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