American Bar Association

Historically discriminatory areas should need preapproval for election change, says ABA amicus brief

The American Bar Association filed an amicus brief (PDF) Friday in Shelby County v. Holder, urging the U.S. Supreme Court to uphold Section 5 of the Voting Rights Act.

The case was brought by Shelby County, Ala., which seeks to invalidate Section 5 of the Voting Rights Act. It requires states and localities with histories of voting discrimination to get federal permission before changing election procedures, and it was reauthorized by Congress in 2006. Those opposed to Section 5 maintain that it conflicts with the 14th and 15th Amendments. They also note Section 2 of the law, which allows federal prosecution and civil lawsuits as remedies for voter discrimination.

The American Bar Association brief, supporting the respondents, holds that “litigation alone” under Section 2 of the law is not an adequate or sufficient remedy for voting discrimination.

“Voting rights litigation under Section 2, as many ABA members know from front line experience, is extremely complex and costly,” the brief states. “During the several years it regularly takes to litigate a Section 2 case, officials who were elected under an improper election regime continue to hold office, implement policies, and make a wide variety of decisions that remain in effect, often long after the election process that brought them to power is found to be discriminatory.”

In 2011, the U.S. District Court for the District of Columbia upheld the constitutionality of Section 5. The ruling was affirmed by the U.S. Court of Appeals for the District of Columbia in a 2-1 opinion. U.S. Supreme Court oral arguments are scheduled for Feb. 27.

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