Lawyers for the Justice Department and intervenors in the Texas voter ID case told the court yesterday that the court should put off consideration of Texas’ claim that section 5 of the Voting Rights Act is unconstitutional until the Supreme Court decides the pending Shelby County v. Holder case next year.
That case involves a challenge to the statute by Shelby County, Alabama, contending that Congress acted without sufficient evidence in 2006 in extending section 5 coverage for another 25 years and that the formula for determining what states and sub-divisions are subject to section 5 is outdated.
The State of Texas disagreed and told the court that it should go ahead and decide the constitutional question being raised in the Texas case or otherwise its voter ID law “will be stuck in limbo until the end of the current Supreme Court term.”
The state told the court that “while Texas’s constitutional claims overlap with Shelby County’s to some extent, they may present distinct arguments (such as a challenge to the “non-retrogression” doctrine) whose resolution will not be affected or informed by the opinion in Shelby County.”
In the alternative, the state asked the court to enter a final order denying preclearance so that the state could go ahead and separately appeal the ruling on that portion of its claims to the Supreme Court. The intervenors told the court the state had missed its window to request such relief.
Here are the parties’ position papers:
When we reached the crest of the bridge, I stopped dead still. …
“There, facing us at the bottom of the other side, stood a sea of blue-helmeted, blue-uniformed Alabama state troopers, line after line of them, dozens of battle-ready lawmen stretched from one side of U.S. Highway 80 to the other.
“Behind them were several dozen more armed men—Sheriff Clark’s posse—some on horseback, all wearing khaki clothing, many carrying clubs the size of baseball bats.
“On one side of the road I could see a crowd of about a hundred whites, laughing and hollering, waving Confederate flags. Beyond them, at a safe distance, stood a small, silent group of black people.
On another matter, I should like to say that all Americans should be indignant when one American is denied the right to vote. The loss of that right to a single citizen undermines the freedom of every citizen. This is why all of us should be concerned with the efforts of our fellow Americans to register to vote in Alabama.
“The basic problem in Selma is the slow pace of voting registration for Negroes who are qualified to vote. We are using the tools of the Civil Rights Act of 1964 in an effort to secure their right to vote. One of those tools of course is legal action to guarantee a citizen his right.
“One case of voting discrimination has already led to a trial which has just been concluded. We are now awaiting a decision in this case. In the meantime I hope that all Americans will join with me in expressing their concern over the loss of any American’s right to vote. Nothing is more fundamental to American citizenship and to our freedom as a nation and as a people. I intend to see that that right is secured for all of our citizens.
In papers filed today, plaintiffs in the Kinston, North Carolina case asked the Supreme Court to review the case and rule on the question of whether the preclearance requirements of section 5 of the Voting Rights Act continue to be constitutional.
A copy of the petition can be found here.
An appeal from a parallel case out of Shelby County, Alabama is expected to follow.
If the Supreme Court takes the cases, the cases probably would be argued in the 1st or 2nd quarter of 2013.
In 2009, the Supreme Court considered the constitutionality question but ended up deciding the case 9-1 on alternative grounds.