Two lawsuits attacking the constitutionality of the heart of the nation’s landmark Voting Rights Act are now underway in federal district court with an ultimate eye on the U.S. Supreme Court.
The challenges, one filed April 27 and the other earlier this month, are before U.S. District Judge John Bates in Washington’s federal court. And both suits are being handled by some major league veterans in this area of the law.
Bert Rein and William Consovoy, partners in Washington’s Wiley Rein, are representing Shelby County, Ala., in its April 27 suit: Shelby County, Ala. v. Holder. Michael Carvin, partner in the Washington office of Jones Day, is lead counsel to a group of residents from Kinston, N.C., in LaRoque v. Holder.
The Project on Fair Representation, a Virginia-based, conservative nonprofit legal defense fund that supports challenges to racial and ethnic classifications, is funding the Alabama lawsuit, according to its director, Edward Blum. And the North Carolina suit is receiving similar support from the Center for Individual Rights, a Washington conservative public interest law firm.
Both suits focus on constitutional questions left unanswered by the Supreme Court’s decision last June in Northwest Austin Municipal Utility District No. One v. Holder. That case involved a direct challenge to section 5 of the Voting Rights Act, which Congress reauthorized in 2006. Section 5 was extended for 25 years.
Section 5 prohibits certain state and local jurisdictions—mostly in the south-- from changing voting procedures without first obtaining federal preclearance that the proposed voting change does not deny or abridge the right to vote on account of race, color, or membership in a language minority group.
In Northwest Austin, the justices avoided answering the question of Section 5’s constitutionality by deciding the case on other grounds, but Chief Justice John Roberts Jr., in his majority opinion, voiced strong skepticism about its constitutionality, essentially warning Congress to fix it before another lawsuit reached the high court.
Alabama has been a so-called covered jurisdiction under the Voting Rights Act since 1965. In its lawsuit, Shelby County contends that Section 5 and its trigger mechanism in Section 4(b) exceed Congress’ enforcement powers under the 14th and 15th Amendments. In reauthorizing the act in 2006, the county says, Congress lacked evidence of intentional discrimination that warranted the act’s enactment in 1965 and its three subsequent extensions. There also was no evidence, it says, that discriminatory voting practices would be resurrected if Section 5 were eliminated.
“This is the third lawsuit that I have turned to Wiley Rein to litigate,” said Blum of the Project on Fair Representation. The firm, he added, also is handling a lawsuit challenging what he contends is the reintroduction of racial preferences in admissions by the University of Texas.
Blum, however, follows Voting Rights Act activity closely. “Every denial of preclearance, every Section 5 objection that DOJ issues, I eventually find out,” he said. “I’m like a whale going through plankton.”
Jones Day’s Carvin is representing the Kinston, N.C., residents on a pro bono basis. Last year, Attorney General Eric Holder Jr. refused to approve a Kinston voter referendum to switch from partisan to non-partisan voting in city council elections. The referendum had been approved by a 2-1 margin. The lawsuit notes that blacks constitute 64.6 percent of registered voters in the city.
The Justice Department stated in its objection letter that “elimination of party affiliation on the ballot will likely reduce the ability of blacks to elect candidates of choice.”
The Kinston suit, which focuses solely on Section 5, contends the preclearance requirement for voting changes exceeds Congress’ authority under the Fifth, 14th and 15th amendments.
No response has been filed yet to the suits by the Justice Department.