Legal Brief Argues Voting Rights Act’s Selective “Preclearance” Restrictions are Outdated, Onerous and Being Abused by Obama Administration
Court Asked to Make Nearly 50-Year-Old Civil Rights Law Applicable to 21st Century America
Washington, DC – As the U.S. Supreme Court prepares to hear arguments on the constitutionality of “preclearance” standards in the Voting Rights Act of 1965, the Project 21 black leadership network has filed a legal brief with the Court arguing that the Department of Justice is using an obsolete portion of that law to justify a race-conscious administration of justice and to obstruct voting laws in affected states and localities.
“[S]eparate-but-politically-desirable is no more compelling an argument than separate-but-equal,” says the brief, which criticizes adherence to outdated rules apparently for political reasons.
Project 21 legal experts are available for comment about the brief, the overall problems with preclearance rules, the politicization of the Obama Justice Department and why the Court needs to rule against Section 5 enforcement.
“I agree with the petitioner’s argument that the Justice Department — under the leadership of Eric Holder — has engaged in aggressive enforcement of Section 5 of the Voting Rights Act,” said Project 21 Co-Chairman Cherylyn Harley LeBon, a former senior counsel for the U.S. Senate Judiciary Committee. “And since Congress failed to act on ways to modify the law for modern day standards, local and state governments have been left with the only remedy available — the Supreme Court.”
In the case of Shelby County, Alabama v. Eric H. Holder, Jr., Shelby County officials want the Court to invalidate “preclearance” standards imposed on specific states and localities by Section 5 of the Voting Rights Act. Due to reports of discriminatory behavior during the 1964 elections, states and localities covered under the Act are required to obtain federal approval for all voting procedure changes. This requirement, imposed 48 years ago, was intended to be temporary.
Although preclearance standards were considered to be an “extreme temporary measure” when adopted, Congress has repeatedly failed to address changing demographics and the evolution of American society during reauthorizations of the Act.
As noted in Project 21′s brief: “Section 5… is not consistent with the letter and spirit of the Constitution… [N]ew circumstances now place even covered jurisdictions well ahead of where non-covered jurisdictions were in 1965, and provide an ongoing political check against backsliding. The urgent necessity for extreme measures such as preclearance is thus well past, and such legislation is no longer appropriate.”
The brief points out: “That Section 5 has become a tool for requiring racial classifications and race-based redistricting illustrates how far this remedy has fallen from the more noble purposes that animated it in 1965.”
Shelby County officials are suing to end the onerous process of applying and waiting for federal approval of even minor and popularly-supported actions related to the voting process. The lawsuit is not meant to have the Court overturn the Voting Rights Act in its entirety, but merely remedy the “dramatic upheaval to the relationship between the federal government and the states” caused by Section 5′s preclearance mandate.
Noting how Section 5 of the Voting Rights Act is being used by the Obama Administration to pursue policies meant to promote political power based solely on racial identity, the Project 21 brief states: “[The Justice Department's] vote-dilution views and conduct actually treat block voting somewhat schizophrenically. Block voting by minority groups, for example, is effectively favored and encouraged, and if successful would be taken as evidence that discrimination has been defeated… That the identical conduct by non-minority voters is deemed as evidence of unconstitutional discrimination requiring congressional remedy shows the contradictions.”
It is also asserted in the brief: “Section 5 itself is now a central tool for institutionalized racial discrimination at the command of the [Obama Justice Department] itself.”
The Obama Administration used Section 5 as a tool to block voter ID, which it opposes, in 2012, even though the constitutionality of photo ID was upheld by the U.S. Supreme Court in 2008 in Crawford v. Marion County.
“Congress passed the Voting Rights Act to ensure that all Americans had access to the ballot. The Obama Justice Department’s abuse of this authority to favor his political allies makes a mockery of the Voting Rights Act,” said Project 21 Co-Chairman Horace Cooper, a former congressional leadership aide and constitutional law professor. “Either these abuses must be ruled illegal or the preclearance standards must be struck down.”
Project 21, a leading voice of black conservatives for nearly two decades, is sponsored by the National Center for Public Policy Research, a conservative, free-market, non-profit think-tank established in 1982. Contributions to the National Center are tax-deductible and greatly appreciated.
Photo Credit: Laura Padgett (Creative Commons)