U.S. Supreme Court Review of Voting Rights Act Sought by Black Conservatives

Section 5 “Preclearance” Standard is Now Enforced Against Alabama as if George Wallace Still Governor; Other States Similarly Judged By Pre-1965 Behavior

Legislative Branch’s “Lack of Leadership” in Ending 47-Year-Old “Extreme Temporary Measure” Criticized

Washington, D.C. – In a recently-filed legal brief, the Project 21 black leadership network is asking the U.S. Supreme Court to accept a case regarding the constitutionality of a “outdated” portion of the Voting Rights Act that creates “a dramatic upheaval to the relationship between the federal government and the states.”

“It is essential that the Supreme Court weigh in and eliminate outmoded provisions that treat modern day state and local government decisions as if they were being made by the Dixiecrats of long ago,” said Project 21 member Horace Cooper, a former senior counsel to the leadership of the U.S. House of Representatives who taught law at George Mason University in Virginia.

Project 21 has joined an amicus curie (“friend of the court”) brief in the case of Shelby County, Alabama v. Eric H. Holder, Jr. The brief was authored by the Pacific Legal Foundation and is also joined by the Center for Equal Opportunity.

In the case, Shelby County officials are asking the Court to invalidate “preclearance” standards imposed on specific states and localities by Section 5 of the Voting Rights Act of 1965. Premised on discriminatory behavior practiced in the election contests of 1964, these standards require that any changes in the voting procedures in affected states and localities be pre-approved by the federal government (no matter how minor they may be).

The Voting Rights Act was considered an “extreme temporary measure” at the time of the Act’s passage. Congress has failed to address changing demographics and the evolution of American society during subsequent reauthorizations of the Act.

As noted in the brief Project 21 joined: “Today, Section 5 continues to place only certain state and local governments under a form of federal receivership, often without rhyme or reason. However, the ‘insidious and pervasive evil’ of racism in the Deep South, which once justified Section 5’s uniquely burdensome remedy, has greatly diminished.”

Under Section 5, all or part of 15 states are treated differently from the other 35 in the fact that they are still essentially suspected of engaging in pre-civil rights era institutional discrimination. Shelby County officials experienced trouble with preclearance restrictions regarding local special elections and redistricting issues and seek through their suit to be unburdened of the onerous process of applying and waiting for federal approval of minor and popularly-supported actions.

It is not the intention of the Shelby County officials to overturn the Voting Rights Act. Instead, they want the Court to examine the constitutionality of Section 5’s “preclearance” standards to determine if they cause “a dramatic upheaval to the relationship between the federal government and the states.” The brief warns: “The immense costs to federalism imposed by Section 5 should undergo rigorous review by this Court. Failure to review Section 5 would make these dramatic changes de facto permanent. The famous federalism that has sustained our Constitution would take a back seat to partisan politics.”

Noting the changes in American society since the passage of the Voting Rights Act almost 50 years ago, the Project 21-affiliated brief states: “[T]he unconscionable and deliberate vote suppression tactics that were implemented by governments in the Deep South in 1965, and which were the sole justification for the temporary intrusiveness of Section 5, have been eradicated. The Jim Crow inspired barriers to voting, such as intentionally discriminatory literacy tests and poll taxes, are no longer in use, and the numbers of minority officeholders are at historically high levels, as are levels of minority electoral participation… While the intrusiveness of Section 5 is suspect as an initial matter, it is significantly more so when the states and jurisdictions subjected to its burdens cannot be reconciled by contemporary voting or discrimination statistics.”

Questions about “preclearance” standards are even more relevant to the national debate now due to the fact that the U.S. Supreme Court is going to be asked to consider an appeal of the new Texas voter ID law, which was struck down by a federal court in late August based on preclearance standards in the Voting Rights Act.

“The Voting Rights Act has become politicized. As a result, it has essentially federalized basic activities that should be implemented by state, city and local governments. Commonsense protections such as voter ID laws also become targets for partisan government employees in Washington. Instead of addressing how America changed for the better when the Act came up for renewal in 2006, lawmakers sat idle and allowed the law to continue to be interpreted as if it was still the 1950s. Therefore, it falls to the Supreme Court to rectify the legislative branch’s lack of leadership,” said Project 21 spokeswoman Cherylyn Harley LeBon, a former senior counsel on the U.S. Senate Judiciary Committee.

A copy of the brief that Project 21 joined is available at http://www.nationalcenter.org/Shelby-petition-brief.pdf.

Project 21, a leading voice of black conservatives for nearly two decades, is sponsored by the National Center for Public Policy Research (http://www.nationalcenter.org).


Project 21, a leading voice of black conservatives for over 25 years, is sponsored by the National Center for Public Policy Research. Its members have been quoted, interviewed or published over 40,000 times since the program was created in 1992. Contributions to the National Center are tax-deductible and greatly appreciated, and may be earmarked exclusively for the use of Project 21.