The October, 2012 term of the United States Supreme Court promises to be one of the most momentous in American History.  Last fall, Court heard argument on the constitutionality of Affirmative Action in higher education in Fisher v. Texas (see my discussion of that case here). On Feb. 26, the Court will hear oral argument on a facial challenge to the Constitutionality of several parts of the Voting Rights Act of 1965, as reauthorized by Congress in 2006, in Shelby County v. Holder.

Section 5 of the Voting Rights Act requires federal preclearance to changes to electoral rules or voting procedures by states covered by the Act.  This prophylactic provision was created in recognition of the failure of case-by-case challenges to voting rules and procedures to prevent, remedy and deter voting discrimination, and the paramount need for structural change, especially in Southern states with a history of racial discrimination in voting.

In 2009, the Court hinted that the conditions that “justified” these preclearance provisions may no longer exist, yet declined to answer that question in Northwest Austin Municipal Util. Dist. No. One v. Holder.  This month, the Court confronts that question directly.   Shelby County, Alabama has challenged the preclearance provision as an unconstitutional intrusion into local authority and as an unjustifiable burden on state and local officials seeking to change or modify electoral rules.

The Haas Institute believes that section 5 of the Voting Rights Act is not only historically significant, but stands as contemporary example of the kinds of structural reforms necessary to improve local conditions and guarantee equal citizenship.   For more on this case, the pleadings and other briefing materials, please go to Scotusblog’s archive.

This blog post was also posted on the Berkeley Blog.

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