On February 1, 2013, Constitutional Accountability Center filed an amici curiae brief in support of the Respondents in Shelby County, Alabama v. Holder, a challenge to the Voting Rights Act and the federal government’s power to protect the voting rights of citizens. CAC filed the brief on behalf of leading scholars on the Constitution and the Reconstruction Amendments, including Professors Jack M. Balkin, Guy-Uriel Charles, Luis Fuentes-Rohwer and Adam Winkler.

Section 5 of the Voting Rights Act, last reauthorized in 2006, requires certain states and local jurisdictions that have a history of racial discrimination towards voters to submit election policy changes to the Department of Justice for “pre-clearance.” Officials in Shelby County, Alabama, one such covered jurisdiction, are challenging the constitutionality of Section 5, arguing that the Court has an obligation to strictly scrutinize whether or not the preclearance requirement is an “appropriate” legislative remedy.

As CAC’s brief demonstrates, the text and history of the Fifteenth Amendment support the constitutionality of Congress’s near-unanimous 2006 reauthorization of the Voting Rights Act, demonstrating that when Congress acts to prevent racial discrimination in voting, its authority is broad and entitled to great deference. Shelby County’s constitutional attack on the preclearance requirement depends on a cramped understanding of Congress’s express power to “enforce” by “appropriate legislation” the guarantees of the Fifteenth Amendment. The brief walks through the debates over the three Reconstruction Amendments and demonstrates that each conferred broad legislative authority on Congress to prevent state-sponsored discrimination. The brief also notes that the Court has consistently held that the Fifteenth Amendment permits Congress to single out jurisdictions with proven histories of racial discrimination for prophylactic regulation such as this one.

Constitutional Accountability Center previously filed a brief in the case in the U.S. Court of Appeals for the D.C. Circuit, which upheld the constitutionality of the Voting Rights Act in its decision on May 18, 2012. Read our news release praising the decision here.

The Supreme Court heard oral arguments on February 27, 2013. Read analysis of the arguments from CAC’s Elizabeth Wydra here.