By Lee Hedgepeth
Alabama Political Reporter
WASHINGTON, D.C – On Wednesday, one year after the US Supreme Court issued its opinion in Shelby County v. Holder, the US Senate Judiciary Committee held hearings on the future of the Voting Rights Act, the 1964 law that – until the Court’s decision – protected minority voters through a process called preclearance, in which states and local political jurisdictions were required to have electoral changes approved by the Department of Justice.
The Voting Rights Act, originally passed following the events Bloody Sunday – in which nonviolent protestors were attacked by Alabama state and local police at the Edmund Pettus Bridge in Selma – was reauthorized four times: for five years in 1970, seven years in 1975, and twenty five years in 1982 and 2006, with the latest passage coming with a nearly unanimous Congressional vote: 390-33 in the House and 98-0 in the Senate.
Then, in Shelby County v. Holder, decided in June 2013, a partisan 5-4 majority of the Supreme Court struck down Section 4 of the law, the provision containing the formula deciding which states were required to preclear their election changes. The GOP-appointed majority said that given progress made in the South since the Civil Rights Era, the coverage formula was no longer valid.
This had been the argument forwarded by Shelby County, which was seriously scrutinized by Supreme Court Justice Sonia Sotomayor, especially in light of the county’s racially charged history.
“Assuming I accept your premise, and there’s some question about that, that some portions of the South have changed,” Justice Sotomayor said to Shelby County’s attorney during oral arguments, “your county pretty much hasn’t. In the period we’re talking about, it has many more discriminating – 240 discriminatory voting laws that were blocked by Section 5 objections. There were numerous remedied by Section 2 litigation. You may be the wrong party bringing this.”
That formula struck down by the majority in Shelby County v. Holder had required states who have a past history of discrimination to preclear unless they “bailed out” of the provision by proving that there had been no violations of the 14th and 15th amendments in their jurisdictions, and that in the last ten years there had been no proven “tests or devices” used for voting discrimination. For example, the city of Pinson, though in the covered state of Alabama, bailed out of the preclearance requirement in April of 2012.
On Wednesday, the Judiciary Committee held hearings aimed at passing a new formula for preclearance, an effort that has thus far not gained serious traction on Capitol Hill. But with exclusively Democratic support in the Senate and slim GOP backing in the House, it seems the Supreme Court’s conservative majority has somewhat set the Congressional Republican agenda: despite the 98-0 2006 authorization, it seems unlikely the Voting Rights Act Amendment currently before Congress will pass.
The proposed amendment, which has a formula that would currently cover only 4 states (not Alabama), does not have the support of either of Alabama’s two Senators.
Senator Sessions, a member of the Judiciary Committee, attended the hearings, and said that though he voted for the VRA Reauthorization in 2006, he had felt the old preclearance formula troublesome.
“I felt the South had made extraordinary progress,” he said.
A conservative professor testifying at the hearing said he considered the proposed amendment updating the formula currently before Congress unconstitutional, with his logic mirroring the sentiments of the dissenters in Shelby County v. Holder including Justice Sotomayor’s sentiments reflected in the above quote, as well as in the written dissent by Justice Ginsburg, which he cited in his testimony.
“’…Alabama was the paradigmatic example of a state that needed to be subjected to preclearance under any reasonable coverage formula.’ The fact that the proposed formula excludes Alabama,” the professor tesftified,” is powerful evidence that it does not accurately target ‘those jurisdictions uniquely characterized by voting discrimination on a pervasive scale’”
The Chairman of the Judiciary Committee, Senator Patrick Leahy, D-VT, said that he hoped there would be bipartisan support to update the law, as there had been in the past, despite the apparent switch in mentality by the GOP on the issue since Shelby.
“I can only hope that Republicans will come to the table so we can work together as Americans to update and strengthen the foundation of this important law.”
Indeed, at the 1982 reauthorization of the Voting Rights Act, then-President Ronald Reagan called voting the “crown jewel of our democracy.”