Jan 27 (Reuters) - A recent decision by the U.S. Supreme Court that dealt with a narrow issue in a redistricting case from Texas suggests that the nation's top court is ready to
reconsider a key part of the Voting Rights Act, a major piece of
civil rights legislation.
In the Jan. 20 decision, which tossed a Texas electoral map back to a lower court, the Supreme Court made a reference to
"serious constitutional questions" raised by the act, which was
passed in 1965.
Legal experts have identified an Alabama case working its
way through the courts as a vehicle through which the Supreme
Court could eventually take another look at the act.
Section 5 of the Voting Rights Act requires that states with
a history of voting rights violations, typically those in the
South, get approval from either the Justice Department or a
three-judge federal court in the District of Columbia before
changing their election rules.
Several states have challenged Section 5 over the years on
the grounds that it interferes with their right to govern
elections under the powers reserved to them by the 10th
Amendment. To date, the Supreme Court has rejected those
challenges.
The constitutionality of the voting rights laws were not at
issue in the Texas case, as Chief Justice John Roberts made
clear in oral arguments on Jan. 9. But the court's decision on
Jan. 20 seemed to signal it was ready to consider the issue.
In that decision, which was unanimous, the Supreme Court
referred back to language it used in a 2009 case, where it found
that "intrusions on state sovereignty" brought by Section 5
raised "serious constitutional questions."
And, in a concurring opinion, Justice Clarence Thomas
restated his position in the 2009 case. "The extensive pattern
of discrimination that led the Court to previously uphold
[Section 5] as enforcing the 15th Amendment no longer exists,"
Thomas wrote.
The Supreme Court's decision on Jan. 20 shows that the
constitutionality of the Voting Rights Act, and Section 5 in
particular, is "on the court's mind," said Bert Rein, an
attorney for Shelby County, Alabama, which is currently
challenging the constitutionality of Section 5.
A lower court ruled against the Alabama county, and the
Court of Appeals for the District of Columbia Circuit heard oral
arguments in the county's appeal on Jan. 19.
"Whatever the ruling is, I think the losing party will seek
certification from the Supreme Court," said Deborah Archer, a
law professor and Director of the Racial Justice Project at the
New York Law School, which filed an amicus brief in support of
the U.S. government position in the Alabama case.
Legal experts said the Alabama case may be ripe for
consideration by the Supreme Court, after the appeals court
rules. A decision by the appeals court could take several
months.
Richard Pildes, a professor at New York University Law
School who specializes in election law, said that if the appeals
court finds Section 5 to be unconstitutional, "the Supreme Court
would certainly hear the case on the merits."
The Supreme Court had the opportunity to rule on the
constitutionality of Section 5 in the 2009 case, Northwest
Austin Municipal District No. 1 v Holder, a challenge by a small
district in Texas.
"Everyone thought the Supreme Court would take on the
constitutionality question two years ago," said Debo Adegbile,
Litigation Director at the NAACP-Legal Defense Fund, who argued
the 2009 case in support of the Voting Rights Act.
The majority of the court instead chose to sidestep the
constitutional issue and decided the case on narrow statutory
grounds. Only Justice Thomas, in a separate opinion, said he
would have ruled that Section 5 of the Act was unconstitutional.
If the Alabama case reaches the Supreme Court, the justices
will have to face the constitutional question head on, since it
is the only legal issue in the case.
The first challenge to the constitutionality of the Voting
Rights Act was brought by South Carolina. In a 1966 case called
South Carolina v Katzebach, the Supreme Court ruled that the
legislation was constitutional.
Since then, Congress has reauthorized the Act four times,
and legal challenges have been brought each time. The Supreme
Court upheld the constitutionality of the Act again in 1973,
1980, and 1999. It has not yet ruled on the constitutional
challenges that have been raised since the 2006 reauthorization.
The Alabama case is Shelby County, Alabama v Holder, U.S.
Appeals Court, District of Columbia, no. 11-5256
The Texas case is Perry v Perez, U.S. Supreme Court, no.
11-713
(Reporting by Rebecca Hamilton)
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