Bloomberg News

Voting Law’s ‘Preclearance’ Provision Upheld on Appeal

May 18, 2012

A Voting Rights Act provision requiring federal approval of election-related changes in all or part of 16 states with a history of racial discrimination was upheld by the U.S. Court of Appeals in Washington.

The majority of a three-judge panel today rejected Shelby County, Alabama’s constitutional challenge, saying the so-called preclearance requirement under Section 5 of the 1965 law remains necessary given that “overt racial discrimination persists” in the covered jurisdictions.

“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,” Judge David Tatel wrote.

The court’s decision affirms the right to vote as a core constitutional right and Congress’s broad power to protect it, said David Gans, an attorney with the Constitutional Accountability Center in Washington. The organization filed a friend of the court brief in the case.

‘Raising Concerns’

“We’re in the middle of an election cycle where lots of people are raising concerns that restrictions are being placed on the right to vote that prevent citizens from having access to the ballot box,” Gans said.

Frank “Butch” Ellis, an attorney for Shelby County, located near Birmingham, said the county will seek an appeal to the U.S. Supreme Court. Ellis said he was pleased with the dissent by Judge Stephen Williams.

The preclearance requirement costs taxpayers money and is “outdated” because it’s based on election results from 1964, Ellis said. The law requires voting changes to be reviewed by the Justice Department or the district court in Washington.

“We support the Voting Rights Act. We believe in it and all of its substantive protections,” he said. “But this thing of requiring preclearance of everything we do, every change, is costing an awful lot of taxpayer money and an awful lot of effort and time when it’s just not generally needed.”

Another Election

The NAACP Legal Defense and Educational Fund said the law’s voter protection is still needed. The city of Calera in Shelby County in 2006 enacted a “discriminatory” redistricting plan that cost the city’s only African American councilman his seat, according to the organization. Because of Section 5 of the Voting Rights Act, the city was required to draw a nondiscriminatory redistricting plan and conduct another election, the group said.

Justice Department spokeswoman Xochitl Hinojosa said in a statement that the agency is pleased with the decision. The Voting Rights Act is “a cornerstone” of civil rights law, and the department will fight constitutional challenges to it, she said.

“This provision continues to serve as a critical tool in both blocking and deterring discriminatory voting practices,” Hinojosa said.

The case is Shelby County, Alabama v. Holder, 11-5256, U.S. Court of Appeals for the District of Columbia (Washington).

To contact the reporter on this story: David McLaughlin in New York at dmclaughlin9@bloomberg.net

To contact the editor responsible for this story: John Pickering at jpickering@bloomberg.net


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