Recently, the landmark Voting Rights Act was successfully challenged in the Supreme Court. The legislation had been reauthorized a year early in July, 2006 by unanimous vote of the Senate and a margin of more than 300 votes in the House of Representatives. The circumstances under which it was renewed was both a testament to central place the Voting Rights Act had come to play protecting minority voting rights, and the very structure of voting law in the United States.
Nonetheless, a week after President George W. Bush signed the reauthorized Voting Rights Act, it was challenged. The lawsuit, which worked its way through the courts over the course of two years, eventually came to be known as Northwest Austin Municipal Utility District Number One v. Holder. The appellant argued that Congress had exceeded its constitutional authority by extending section 5’s preclearance requirement. At the core of the argument was the idea that racial discrimination was no longer the crucial problem that it had been in 1965, and that Section 5 imposed an unfair and unnecessary burden on covered jurisdictions, in effect punishing them for past transgressions.
A three-judge Federal District Court panel rejected the challenge, but in January 2009, the Supreme Court agreed to hear the case. The very fact that the Court agreed to hear the case, rather than simply affirming the lower court ruling, suggested that at least a few justices were prepared to consider the claim that Section 5 was unconstitutional. In fact, several of the more conservative justices, including Chief Justice John Roberts, had expressed reservations about the Voting Rights Act, and even some liberal justices had concerns about particular aspects of the 2006 reauthorization.
Ultimately, however, the Court declined to rule on the constitutionality of Section 5 preclearance in NAMUDNO v. Holder, instead holding that the district could apply for an exemption under the procedures for “bailing out” of the coverage provision.
Three years later a more successful challenge to the Voting Rights Act came before the Court. In Shelby County v. Holder, the challenge came not to the Section 5 preclearance provisions, but the Section 4b process of determining which geographic areas were covered. On June 25, 2013, the Court ruled 5-4 vote that Section 4 is unconstitutional arguing that the coverage formula used is based on data over 40 years old, causing it to be unresponsive to current situations. The justices in the majority felt that under the circumstances, section 4 constituted a violation of the principles of federalism and equal sovereignty of the states. Notably, the Court did not strike down Section 5, but without Section 4, few jurisdictions will be subject to Section 5 preclearance unless Congress enacts a new coverage formula. Those that are fall under it because of the Section III “bail-in” provision. Bills have been filed in the House of Representatives to resurrect a coverage formula, but have not been successful.