Lawyers for an Alabama county that is challenging a controversial section of the Voting Rights Act have asked a federal appeals court in Washington to strike down a judge's ruling that upheld the constitutionality of the law.
Judge John Bates of U.S. District Court for the District of Columbia in September ruled for the Justice Department in its defense of Section 5 of the Voting Rights Act of 1965. The section requires some states and localities to get permission before implementing election-related changes.
Section 5, according to the Justice Department, was set up to ensure that changes do not harm minority voting rights. Congress extended the Voting Rights Act in 2006 another 25 years. Shelby County, Ala., sued the Justice Department last year.
The U.S. Court of Appeals for the D.C. Circuit, where the case is now pending, will hear the case Jan. 19. The U.S. Supreme Court has not weighed in on the constitutionality of Section 5, but the high court has said the section raises “serious” constitutional questions.
“There can be no question that the VRA ushered in long-overdue changes in electoral opportunities for minorities throughout the Deep South,” Wiley Rein name partner Bert Rein, representing Shelby County, said in the appeals court brief (PDF), filed Tuesday. “But Shelby County should not be subject to Section 5 based on voting data more than four decades old.”
Rein, the lead attorney for Shelby County, said in the court papers that Section 5 “radically” reallocated state and municipal election power to the federal government. He called Section 5 “an unprecedented use of federal enforcement power under the Fifteenth Amendment.”
Shelby County’s lawyers, who also include Wiley Rein partner William Consovoy, said that, contrary to Bates’ conclusion, there’s nothing in the legislative record from 2006 that shows a “systemic campaign of voting discrimination and gamesmanship by the covered jurisdictions.”
Rein dismissed what he called “isolated instances” of voting discrimination, saying that those examples do not live up to the standard Congress was required to show—that is, “systemic resistance to the Fifteenth Amendment.”
In his 151-page ruling, Bates listed instances of voting discrimination that he said “took place not in the 1950s or 1960s, but in the 1980s, 1990s and 2000s.” DOJ and civil rights advocates heralded Bates’ decision in the case.
Several groups are participating in the D.C. Circuit as friends of the court or as intervenors in support of one side or the other.
The NAACP Legal Defense and Educational Fund, the American Civil Liberties Union’s national capital office and the Lawyers Committee for Civil Rights are backing DOJ. The nonprofit Mountain States Legal Foundation, which advocates for limited government and free enterprise, is supporting Shelby County in the appeals court.
The Justice Department is expected to respond in the D.C. Circuit by Dec. 1.
D.C. Circuit Judges David Tatel and Thomas Griffith, sitting with Senior Judge Stephen Williams, will hear the dispute in January. The court set out an expedited schedule to resolve the case.