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SCOTUS Voting Rights Decision Draws Criticism

University of Maryland Francis King Carey School of Law professor Mark Graber, JD, PhD, MA, has closely followed the Shelby County v. Holder case before the Supreme Court this session. Tuesday's groundbreaking 5-4 decision invalidated Section 4 of the Voting Rights Act, considered by many to be a crucial tool in preventing racial discrimination in voting laws.

In the majority opinion, Chief Justice John Roberts wrote "Our decision in no way affects the permanent, nationwide ban on racial discrimination in voting found in [Section] 2. We issue no holding on [Section] 5 itself, only on the coverage formula. Congress may draft another formula based on current conditions."

Reacting to the ruling, Graber said, "What is most remarkable about the chief justice's opinion is the near complete absence of any reference to the 13th, 14th and 15th Amendments. Shelby County [in Alabama} treats Reconstruction as an exceptional deviation from the sound principles of the framing rather than a reconstruction of the federal union with specific emphasis on the power of the federal government to enforce racial justice." The full comments of Graber, the school's associate dean for research and faculty development, may be viewed here.

Shelby County vs. Holder centered on the constitutionality of the preclearance requirements of Section 5 of the Voting Rights Act of 1965, imposed on many mostly Southern states in reaction to past discrimination. A lower court upheld the constitutionality of requiring certain States and localities to obtain federal preclearance for all voting law changes before they may be implemented. To obtain preclearance, a jurisdiction must demonstrate that the change neither has a discriminatory purpose nor a discriminatory effect.
Posting Date: 06/25/2013