Final update 5:10 pm

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Acting three days after the nation’s minority voters showed that they have increased and still growing power in U.S. elections, the Supreme Court agreed on Friday to rule on a challenge to Congress’s power to protect those groups’ rights at the polls. The Court said it would hear claims that Congress went beyond its authority when it extended for another twenty-five years the nation’s most important civil rights law, the Voting Rights Act, originally passed in 1965 and renewed four times since then.

Specially at issue is the constitutionality of the law’s Section 5, the most important provision, under which nine states and parts of seven others with a past history of racial bias in voting must get official clearance in Washington before they may put into effect any change in election laws or procedures, no matter how small. The Court came close to striking down that section three years ago, but instead sent Congress clear signals that it should update the law so that it reflects more recent conditions, especially in the South. Congress did nothing in reaction.

The Court accepted the voting rights case from Shelby County, Ala., and agreed to review three other new cases. It will rule on a Maryland case testing the authority of police to take a DNA sample from an individual arrested for crime, but not yet convicted The other newly granted cases involve definition of a judge’s powers under the federal Sentencing Guidelines, and a new dispute over class arbitration.

In agreeing to rule on the Voting Rights Act, the Court limited its review to a question which it composed itself: “Whether Congress’ decision in 2006 to reauthorize Section 5 of the Voting Rights Act under the pre-existing coverage formula of Section 4(b) of the Voting Rights Act exceeded its authority under the Fourteenth and Fifteenth Amendments and thus violated the Tenth Amendment and Article IV of the United States Constitution.” The Tenth Amendment protects the powers of states by limiting Congress’s powers. Article IV guarantees each state a “republican form of government,” meaning it is protected in its right of self-government. The question specified by the Court differed from that posed by Shelby County’s lawyers only by adding a reference to the Fourteenth Amendment. The case to be decided is Shelby County v. Holder (12-96).

The Court took no action on another Section 5 case, from North Carolina: Nix v. Holder (12-81). That case apparently will be kept on hold pending the decision in the Shelby County case.

Here, in brief, are the issues in the other three cases accepted Friday:

** Maryland v. King (12-207): Whether it violates the Fourth Amendment rights of an individual who is arrested and charged with a serious crime, but not convicted, for police to take an involuntary DNA sample. Chief Justice John G. Roberts, Jr., earlier had blocked a ruling by Maryland’s highest state court finding a Fourth Amendment violation when the individual has not yet been convicted of a crime.

** Peugh v. United States (12-62): Whether it is a violation of the Constitution’s Ex Post Facto clause for a federal judge to impose a criminal sentence based on federal Guidelines in effect at the time of sentencing, if that sentence is longer than the Guidelines had specified at the time the crime was committed. Lower courts are split on the issue.

** American Express Co. v. Italian Colors Restaurant (12-133): Whether a contract that prohibits class arbitration is invalid, if the individuals or companies involved cannot vindicate their rights under a federal law by proceeding individually. This case grows out of a dispute over the “swipe fees” that American Express charges retail firms when they accept AmEx cards from customers paying on credit. The underlying legal issue is a claimed violation of the Sherman Antitrust Act. AmEx requires retailers with whom it does business to accept binding arbitration under a contract that forbids them to proceed as a class. UPDATE: Justice Sonia Sotomayor took no part in the order granting this case, no doubt because she was a member of the Second Circuit Court panel at the time the case was heard there. She was elevated to the Supreme Court before the Circuit panel actually ruled in the case.

The Court last examined a constitutional challenge to Section 5 of the Voting Rights Act in the 2009 case of Northwest Austin Municipal Utility District v. Holder. There, the Court avoided a ruling on the constitutionality by creating a broader right for some local governments to “bail out” from the law’s coverage. Even so, the Court, in an opinion written by Chief Justice Roberts, was sharply critical of Congress for having failed to make coverage depend upon more recent experience in voting patterns, especially in the covered states. The opinion said that the law imposed special burdens on the covered states and local governments, and that those burdens had to be justified by current needs, not by out-of-date history.

Congress officially took no notice of that opinion. But covered states and local governments definitely did so, and began a round of new challenges, leading to Friday’s grant of the Shelby County case. Shelby County is a part of the metropolitan complex of Birmingham, Ala., with a population of about 200,000, of which eighty-five percent is white. Because it is in Alabama, a state whose entire breadth is covered by Section 5, Shelby County also must get clearance in Washington before it may change any of its voting laws or procedures.

The constitutionality of Section 5 has also has been arising in recent months as the Justice Department challenged new voter ID laws in South Carolina and Texas, and in the congressional and legislative districting dispute in Texas. So far, Section 5 has survived the new round of challenges in the lower federal courts — as, indeed, it did in the Shelby County case in the D.C. Circuit Court. In a split decision, the Circuit Court majority upheld both the pre-clearance requirement — spelled out in Section 5 — and the coverage formula, which is spelled out in Section 4(b). The majority said the burdens were justified by current conditions, found by Congress to show that the problem of racial discrimination was continuing, and that the covered jurisdictions remained among the problem areas.

The D.C. Circuit based its ruling both on the Fourteenth Amendment and the Fifteenth Amendment.

The question before the Court, as posed by the lawyers and as slightly modified by the Court in granting review, encompasses not only the pre-clearance requirement of Section 5, but also the coverage formula — which is now forty years old. In the original act in 1965, the coverage formula was set at 1964, but that was later moved to 1968 and then to 1972. That baseline year, of course, was kept in 2006 when Congress approved the latest extension. In its ruling in the Northwest Austin case in 2009, the Court was quite critical of the failure to update that baseline.

As worded, the question will test whether Congress had the constitutional authority to extend Section 5, when it did so without altering the 1972 triggering date for coverage. Conceivably, the Court could void the latest extension without questioning Congress’s authority to use the pre-clearance requirement — provided that the burden of that requirement falls on state and local governments only where Congress can explicitly demonstrate that racial or language discrimination continues in voting practices there.

The case no doubt is going to draw a heavy flow of briefs from interested groups, and it is likely to emerge as one of the most significant rulings of the current Term.

Recommended Citation: Lyle Denniston, Court to rule on voting rights law, DNA case (FINAL UPDATE), SCOTUSblog (Nov. 9, 2012, 3:11 PM), https://www.scotusblog.com/2012/11/court-to-rule-on-voting-rights-law-2/