Shelby County, Alabama Files Challenge to Section 5 of Voting Rights Act

Contact: Edward Blum
(703) 505-1922

(Washington, DC) Today, Shelby County, Alabama filed a lawsuit in the United States District Court for the District of Columbia which will resolve the important question left unanswered by the Supreme Court last year in Northwest Austin Municipal Utility District No. One v. Holder: whether Section 4(b) and Section 5 of the reauthorized (2006) Voting Rights Act remain constitutional more than 45 years after the statute’s original enactment. The complaint and other filings can be found at: www.projectonfairrepresentation.org.

Section 4(b) of the Voting Rights Act subjects certain States and political subdivisions to Section 5 of the Voting Rights Act, which invades the sovereignty of these “covered” jurisdictions by requiring them to “preclear” all voting changes with the United States Department of Justice. Shelby County is a “covered” jurisdiction because, in 1965, the Attorney General determined that Alabama was using a prohibited voting test and less than 50% of the persons of voting age residing in Alabama voted in the presidential election of November 1964. As a result, Shelby County is regularly required to engage in the costly and burdensome process of submitting all voting changes, no matter how minor, to the Department of Justice prior to implementation.

In last year’s Northwest Austin decision, the Supreme Court questioned the constitutionality of Section 4(b) and Section 5 but did not decide the issue because, unlike Shelby County, that political subdivision was eligible to terminate coverage and preclearance under the Voting Right Act’s “bailout” mechanism. The Supreme Court nevertheless acknowledged that the preclearance obligation of Section 5 may no longer be justified: “Things have changed in the South. Voter turnout and registration rates now approach parity. Blatantly discriminatory evasions of federal decrees are rare. And minority candidates hold office at unprecedented levels.” The Supreme Court also questioned the constitutionality of Section 4(b) because the “evil that Section 5 is meant to address may no longer be concentrated in the jurisdictions singled out for preclearance” and the “statute’s coverage formula is based on data that is now more than 35 years old, and there is considerable evidence that it fails to account for current political conditions.”

Shelby County seeks resolution of these important constitutional questions. In its lawsuit, Shelby County asserts that Sections 4(b) and 5 exceed Congress’ enforcement authority under the Fourteenth and Fifteenth Amendments and thus violate the Tenth Amendment and Article IV of the Constitution. The lawsuit claims that Sections 4(b) and 5 were reauthorized by Congress in 2006 for another 25 years without sufficient evidence of current intentional racial discrimination in voting by ”covered” jurisdictions. Furthermore, by continuing to base coverage on voting practices and data from 1964, the reauthorized statute does not take into account either the substantial improvements that have occurred in these jurisdictions in the last 45 years or that any lingering voting discrimination is the same or worse in non-covered jurisdictions.

The Project on Fair Representation, a Virginia-based not-for-profit legal foundation, is providing all of the resources for the lawsuit. Edward Blum, Director of the Project on Fair Representation, said, “The 1965 Voting Rights Act ushered in long-overdue changes in electoral opportunities for minorities throughout the Deep South. Today, however, minorities in Alabama register to vote and participate in elections at rates equal to or exceeding those of white voters. It is unfair and unconstitutional for Congress to continue to punish Shelby County in 2010 for conditions that existed in 1965.”

Frank C. Ellis, Jr., Shelby County Attorney, added that “Shelby County supports the vigorous enforcement of the Fifteenth Amendment and the many provisions of the Voting Rights Act that appropriately enforce its substantive command. However, it is no longer constitutionally justifiable for Congress to arbitrarily impose on Shelby County and other covered jurisdictions disfavored treatment by forcing them to justify all voting changes to federal officials in Washington, D.C. for another twenty-five years when the legislative record before Congress clearly demonstrated that the campaign of unrelenting defiance of the Fifteenth Amendment that justified enactment of the Voting Rights Act of 1965 no longer exists.”