On December 26, attorneys for Shelby County filed their opening brief at the Supreme Court challenging the constitutionality of section 5 of the Voting Rights Act.
The case is set for oral argument before the full court on February 27.
The crux of Shelby County’s argument is that when Congress extended section 5 for another 25 years in 2006, it did not update then 34-year old formulas for determining what states and jurisdictions are covered by section 5 and thus required to get advance approval for any voting-related changes.
Instead, Shelby County argues Congress actually made preclearance “burdens more onerous by amending Section 5” to include vote dilutions claims (overruling early Supreme Court cases).
According to Shelby County:
Nothing in the legislative record indicates that more traditional and less intrusive remedies such as 42 U.S.C. § 1983 and Section 2 of the VRA are an inadequate solution for the residuum of voting discrimination. In fact, “the majority of § 5 objections today concern redistricting” … and Section 2 is an effective vehicle for challenging redistricting changes - especially statewide redistricting plans.
Unlike Section 5’s sweeping suspension of all voting changes, Section 2 creates a nationwide right of action allowing direct challenge to discriminatory voting law and thus ties its remedy to proven violations. Especially with Section 3’s bail-in mechanism …, Section 2 is now the ‘appropriate’ prophylactic remedy for any pattern of discrimination that Congress documented in the 2006 legislative record.
Shelby County’s brief can be found here.