The U.S. Supreme Court on Friday heightened the political stakes in the new term by agreeing to decide a constitutional challenge to the heart of the Voting Rights Act of 1965.
The Court also added to its docket a Fourth Amendment challenge involving the collection of DNA by police from people arrested and charged with serious crimes. That case, Maryland v. King, stems from the Maryland DNA Collection Act.
The justices granted review in Shelby County, Ala. v. Holder, in which the county argues that Congress in 2006 exceeded its authority under the 14th and 15th Amendments when it reauthorized the so-called preclearance provision—Section 5—of the act for another 25 years. Section 5 requires "covered" jurisdictions, those with a history of voting discrimination, to get the approval of the Department of Justice or the federal district court in Washington before making any changes in voting practices.
"The 'evil that § 5 is meant to address may no longer be concentrated in the jurisdictions singled out for preclearance. 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,'" the county argues in its petition, citing a 2009 decision by the justices. "Because Congress has not since acted to rectify these problems, the constitutional validity of Sections 5 and 4(b) must now be resolved." (Section 4(b) is the act's formula for determining which jurisdictions are covered by Section 5.)
The Shelby County case is the second case on the term's docket to have been shepherded through the lower courts by Edward Blum, head of the conservative Project on Fair Representation, and Bert Rein of Wiley Rein. Last month, Rein argued before the justices in Fisher v. University of Texas-Austin, a challenge to the use of race in the university's admissions policy. Rein represents Abigail Fisher.
The Shelby County case, and a second petition, Nix v. Holder, have been watched closely by civil rights and other groups ever since the justices voiced skepticism about Section 5's constitutionality in Northwest Austin Municipal Utility District No. 1 v. Holder in 2009. The Court, in an 8-1 decision by Chief Justice John Roberts Jr., avoided the constitutional question and ruled on different grounds.
The U.S. Court of Appeals for the D.C. Circuit upheld the constitutionality of both sections in the Shelby County case. A divided panel held that "the record contains numerous 'examples of modern instances' of racial discrimination in voting," and that "several categories of evidence in the record support Congress’s conclusion that intentional racial discrimination in voting remains so serious and widespread in covered jurisdictions that Section 5 preclearance is still needed."
The Obama Administration had urged the Court to reject the petition. It argued "The court of appeals correctly applied settled legal principles in reviewing the 15,000-page legislative record, determining that Congress correctly identified a pervasive constitutional problem, and concluding that Congress’s reauthorization of Section 5 (including its maintenance of the existing coverage scope) was a congruent and proportional means of enforcing the Fourteenth and Fifteenth Amendments."
Also urging the Court to deny review was a group of intervenors represented by Jon Greenbaum of the Lawyers' Committee for Civil Rights Under Law.
The constitutionality of Section 5 has been attacked recently by some states defending their voter identification laws challenged by the Justice Department.
The Maryland case stems from the 2009 arrest of Alonzo Jay King who was charged with first and second degree assault. Because first-degree assault is a qualifying crime of violence under the state's DNA Collection Act, King was required to submit to a DNA swab of his cheek. His DNA profile subsequently led to a match with previously unknown DNA recovered from the rape of a woman in 2003. That match led to a warrant for a second swab which rendered the same results. King was charged with rape and robbery and later convicted. He challenged the use of the DNA evidence.
The Maryland Court of Appeals agreed with King. It acknowledged that it had "previously upheld the constitutionality of the Act, as applied to convicted felons," but it said, "at the heart of this debate" is the "presumption of innocence cloaking arrestees and whether legitimate government interests outweigh the rights of a person who has not been adjudicated guilty of the charged crime."
King is represented by Kannon Shanmugam of Williams & Connolly.