As the nation awaited decisions on major civil rights cases involving voting rights, marriage equality and affirmative action, the Supreme Court told us this morning, No new rulings, homey, we don’t play that. But the ruling earlier this week in Arizona v. Inter Tribal Council of Arizona, Inc. was a major victory for voting rights in upholding the authority of Congress and the National Voter Registration Act (NVRA) over state voter registration laws that might restrict our rights. But will that decision have any bearing over Shelby v. Holder, the case before the Supreme Court that will determine if Section Five of the Voting Rights Act will be allowed to stand?
At first blush, it seems one has little to nothing to do with the other, given Arizona was about voter registration and "proof-of-citizenship" laws, while Shelby is about ensuring that voters are protected in states that have histories of discrimination. One connection is that Arizona’s proof-of-citizenship law was precleared under Section Five, though in 2005 when the (Pres. George W. Bush’s) Department of Justice’s civil rights division was making questionable decisions on voting rights issues. But at root both are about what kind of authority the federal government has to intervene in how states conduct elections. But there are differences.
Nina Perales, vice president of litigation for the Mexican American Legal Defense and Educational Fund (MALDEF) told Colorlines that the main difference is between federal statutes (Arizona) and congressional authority (Shelby) and how each affects states.
In other words, Arizona was about whether federal law trumps state laws in certain circumstances, while Shelby is about whether Congress itself was out-of-pocket when it passed Voting Rights Act policies. But other civil rights law experts argue that Arizona did address congressional authority.
Judith Browne-Dianis, co-director of the civil rights law organization Advancement Project, told us that both cases address "the big enchilada question" of "what authority does Congress have to legislate" election matters and "how far is the Supreme Court willing to go to restrict" that authority.
David Gans, director of the Human Rights, Civil Rights, and Citizenship Program for the Constitutional Accountability Center told Colorlines that Arizona and Shelby cases are relevant but in a "limited way."
"The arguments in Shelby have focused on whether the Voting Rights Act is ‘appropriate legislation’ enforcing the Fourteenth and Fifteenth Amendments," says Gans, referring to amendments granting equal protection under the law and protection for people of color from being denied their right to vote. "Even if the Court concludes that it is not, Justice Scalia’s sweeping reaffirmation of broad congressional power to protect the right to vote in federal elections demonstrates why Shelby County’s broad-based challenge to the constitutionality of Section Five of the Voting Rights Act should nevertheless fail."
What Gans is referring to is Justice Scalia’s written opinion in the Arizona case, which stated that the federal "Election Clause" gives the federal government broad power to preempt state laws in order to protect voting rights in federal elections — but only federal elections.
"At a minimum," said Gans, "under [Arizona], the [Section Five] preclearance requirement may be constitutionally applied to federal" elections.
Myrna Perez, deputy director for the Brennan Center for Justice, told us "Thematically the cases are similar in that they involve arguments over congressional power to regulate elections." She referenced an amicus brief filed by a group of election law professors for Shelby v. Holder when it was before the U.S. Court of Appeals (before it reached SCOTUS). That brief made the case that the Elections Clause provided independent support for congressinal powers to uphold Section Five.
The brief reads, "The fundamental purpose advanced by the Elections Clause–protection of the integrity of federal elections–has led this Court to give its text a broad construction. This Court has interpreted the Elections Clause to give Congress authority to regulate state laws affecting even those steps in the election of federal offices not explicitly mentioned in the text of the clause."
Justice Scalia wrote in the Arizona opinion that the Election Clause’s "substantive scope is broad" and that it has two functions — prescribing the "time, place and manner" of how states run federal elections, and granting Congress the power "to alter those regulations or supplant them altogether" — created so that states couldn’t simply refuse to hold federal elections. That congressional power "may be exercised at any time, and to any extent which it deems expedient," cited Scalia from a previous election case.
Concluded Scalia on this point, "In sum, there is no compelling reason not to read Elections Clause legislation simply to mean what it says."
But what does that have to do with the Voting Rights Act?
"Congress has broad authority to regulate election procedures for federal elections, and the Voting Rights Act is one way to do that," said Justin Levitt, associate professor of law at Loyola Law School, "and that was confirmed quite strongly after the Arizona decision" — a decision that "certainly strengthens the constitutionality of Section Five."
With that in mind, Browne-Dianis said she is hopeful the Supreme Court will preserve Section Five. "Congress had the authority to [pass Section Five], they had the evidence to do it and they had the bipartisan support of Congress," said Browne-Dianis. "It would be troublesome then for the Court to substitute its own opinion for that of Congress."