U.Va. Law Professors: Overturning Voting Rights Act Could Lead to ‘Rocky Ride’

The U.S. Supreme Court has agreed to hear a new constitutional challenge to the Voting Rights Act of 1965, which was designed to protect the rights of minority voters.

The law requires nine states and a number of local governments with a history of racial discrimination to secure approval, or preclearance, from the federal government before amending their voting laws.

At issue in the case, Shelby County v. Holder, is whether Section 5 of the law – which deals with preclearance – is still necessary to prevent discriminatory voting practices. Officials from Shelby County, Ala., argue in the lawsuit that Congress exceeded its authority in 2006 when lawmakers reauthorized the provision until 2031. That extension, the appellants argue, imposes unfair burdens on some state and local governments and violates the 10th Amendment’s protection of states’ rights.

Two University of Virginia law professors who have written extensively about civil rights recently weighed in on the case.

Risa Goluboff is the John Allan Love Professor of Law and the Justice Thurgood Marshall Distinguished Professor of Law at the Law School, as well as a professor of history in the College of Arts & Sciences.

“The idea that the law is stuck in a ‘Jim-Crow era time warp’ is both wrong and very disturbing,” she said. “The election of an African-American president does not show that the United States has ended racial inequality. It is something to celebrate, surely. But one has to look at the racial politics of voting within a much larger context of continuing racial inequality in any number of spheres – the economy, education, criminal justice. The historical consequences of Jim Crow remain very much with us and facile assumptions that it is something of and relegated to the past will only hinder further efforts toward equality.”

George Rutherglen is the John Barbee Minor Distinguished Professor of Law and Earl K. Shawe Professor of Employment Law at the Law School.

“This case, Shelby County v. Holder, follows up on a statement three years ago by Chief Justice [John] Roberts in a majority opinion, reserving the question of whether the Voting Rights Act of 1965 could be extended indefinitely, and in particular, its provisions for Justice Department approval for any changes in election law in jurisdictions that previously had denied the right to vote on the basis of race,” he said.

“The decision to hear this case is entirely consistent with the Supreme Court’s increased scrutiny of federal statutes, as evidenced by the recent decision in the health care case, NFIB v. Sebelius. The majority, again in an opinion by Roberts, narrowed one provision in the Affordable Care Act – for cutting off Medicaid funds to non-cooperating states ­­– but it refused to strike down the individual mandate to purchase health insurance or pay a penalty ­– characterized retroactively by the majority as a tax within the powers of Congress.

“In the health care case, the Supreme Court stopped short of striking down major federal legislation because it exceeded the powers of Congress – a step which it has not taken since it struck down the first wave of legislation in the New Deal. In the pending case on the Voting Rights Act, the court might actually take this momentous step. If it does, we’ll all have to fasten our seat belts because we’ll be in for a rocky ride in constitutional law.”