Does SCOTUS have any business reviewing the Voting Rights Act?

No, says Atlanta litigator Emmet Bondurant—voting rights expert since 1963


Doubtless, you’ve heard much about the favorable reception conservative members of the U.S. Supreme Court gave on Wednesday to arguments for sparing poor Shelby County, Alabama—and, by extension, most of the Southern states—from the ignominious edicts of Section 5 of the 1965 Voting Rights Act.

To veteran Atlanta litigator Emmet Bondurant, however, the question isn’t whether the rightward-tilting Court is likely to lift the requirement that Georgia, Mississippi, and other states with histories of black voter suppression obtain Justice Department “pre-clearance” for any measures that affect voters. (Hint: Is the pope-emeritus Catholic?) To Bondurant, the real mystery is why the Court has any business reviewing the law at all.

Bondurant has been something of a national expert in voting matters since 1963, when, as a twentysomething Harvard-educated lawyer, he successfully persuaded the Earl Warren-led SCOTUS to throw out Georgia’s infamous county unit system in favor of one-man, one-vote.

Now on the national governing board of Common Cause, Bondurant explains that the 14th Amendment gives Congress the power to enact laws to compel states to observe the constitutional guarantee of equal protection under the law. The Voting Rights Act of 1965 is just such a law, and when Congress renewed the VRA in 2006, it did so after holding hundreds of hours of hearings and gathering thousands of pages of documents showing that the Southern states—along with Alaska, Arizona, and parts of California, Michigan, New Hampshire, South Dakota,and New York—continue to generate the bulk of valid complaints of equal-protection violations.

The question the High Court is considering in Shelby isn’t, therefore, whether Congress overstepped its authority in re-upping Section 5 of the Act—it clearly did not—but whether it, well, goofed. “For the Court to throw out Section 5, it must determine that there was no rational basis for Congress to take this action,” Bondurant explains. In other words, the five conservative Justices would in effect be saying they have a better grasp of the current voting landscape than the politicians themselves.

“If anyone wonders whether we still need Section 5,” Bondurant adds, “they need only look at Georgia’s recent reapportionment, which produced racially polarized state legislative districts.”

The Republicans who oversaw the map-making process in 2011, took pains to draw a number of white Democratic incumbents, such as state representative Stephanie Stuckey Benfield of Decatur, into majority-black districts that already had African American incumbents. The result has been a further “resegregation” of Georgia’s political parties, in Bondurant’s words, with the statehouse divided between a nearly all-white GOP majority and a mostly black Democratic minority. (The apparent Republican aim, Bondurant believes, is to use identity politics to make the Democratic Party less appealing to white voters.)

Bondurant had led a legal challenge against the redistricting effort, but the Justice Department declined to support his effort. He was also involved in the fight against the wave of “Photo ID” laws in Georgia and elsewhere that require voters to show certain government-issued ID at the polls, a tactic widely attacked as another voter-suppression ploy.

So, what will happen if SCOTUS rules that Georgia and other Southern states need not follow Section 5, which Bondurant believes has provided deterrence against even more overt forms of voter disenfranchisement? “It’ll open the door to many abuses and a great deal of litigation,” Bondurant says. And—unlike when Boundurant and others argued voting-rights cases in the 1960s—suppression today is more sophisticated and less easy to demonstrate in court. “Equal protection cases are hard to prove,” he says. “Especially when most white politicians have learned not to use the N-word.”

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  • Ajay

    The Voting Rights Act (VRA) must be upheld by the supreme court: Discrimination is alive today unfortunately; Liberty and justice for all is openly sabotaged and the Supreme Court is inviting trouble of great magnitudnal proportions if it dares to fail its ultimate mandate: to uphold everyone’s constitutional rights. We not only need to keep the protections in the current Voting Rights Act, it should be expanded. The numerous despicable attempts to restrict voting made during the last election cycle are proof of that. Anyone who truly believes the VRA is obsolete needs to recognize, given last years voter supression efforts, the Jim Crowe era is biding its time, lurking in the shadows waiting for an opportunity to rear its head once again. The entire nation will speak against it because the Voting Rights Act (VRA) is not about political parties; the Voting Rights Act (VRA) is about individual rights protection. Bank on it! it is time to review; the Supreme Court’s “entitlements” as, it is no longer acting as an unbiased institution and that, your magistrates , can be amended. get up and do your job or we will make it happen! count on it! Now Even if you are dumb enough to believe that all is OK with the world and there are no reasons to have the voting rights law on the books. Then why are the the parties at opposite end’s on this ? Why are the Republicans in America trying to keep people from the poles ? Well I will tell you what I think. I think there may be a dozen or two, man and women in America that have the means to buy the power it wants to call all shots in this Country. The only way they can obtain this right now is get the people they went in office. To buy them so to say. But they know they can be stopped at the voting polls.They know the more that get out and vote there chances are reduced substantially. George Will knows this and should be ashamed. He say 47 years old. Is that old ? I don’t think so. Look at the constitution, at that II Amendment a lot older right. SS, Medicare, still very new in the big picture. But look at who wants to change them. Not working men and women, no the big bosses. They do not like to mach payments that is what this is all about. They did not like it back in the 1930s and they do not like it now. So Americans do not be fooled and all of you older people that now have this little benefit fight like h— to keep it just as it is. It just might be all there is between eating and striving !!

    All the republicans crapping about The Voting Rights Act (VRA) on this board and the likes of you in the REPUBLICAN House should move aside in 2014 because the REPUBLICANS are the crux of the problem. President Obama won the elections of 2008 AND 2012 fair and square but the REPUBLICANS are not allowing him to govern through their rule of RECORD number of filibusters in the Senate and the HOUSE of REPUBLICANS has achieved nothing since it came to power in 2010. In 2014 its the REPUBLICAN’s time to go and let OBAMA our democratically elected PRESIDENT rule the country and leave a legacy behind like the achievements of the 2008-2010 years when DEMOCRATS had the House Senate and the Presidency. We want the obstructionist REPUBLICANS out of the way in 2014. We want our House and Senate back in the DEMOCRATIC hands so we can govern and achieve something. All these doomsday fiscal deadlines that REPUBLICANS keep pushing on the country will haunt them in 2014!! Mark my words. March 2nd 2013. Vote Democratic always!

    BIBLE the mini-series on HISTORY channel starting 3/3/13 Sundays at 7pm CT coming from Mark Burnett has got to be really good. It is on HISTORY Channel starting on 3/3/13 on Sundays 7 pm CT Channel 55 on TWC Time Warner Cable. Check out the latest Bible trailer by going here: What are you most looking forward to watching in the series premiere on 3.3.13 at 8/7c? On HISTORY channel 55 on Time Warner Cable (TWC).