If the opponents of Section 5 of the Voting Rights Act are confident of victory in the case of Shelby County v. Holder, they are not sitting back or acting complacent.
The briefing supporting Shelby County amounts to a full-throated, aggressive attack against the law on several fronts but also an attack on Congress for ignoring the Supreme Court's recent admonitions to update and repair the statute.
The 20-plus briefs seem aimed in part at getting the court angry enough at Congress and the Obama administration that it will feel more comfortable about invalidating a law which, as defenders of the law point out frequently, was renewed by an overwhelming congressional vote as recently as 2006.
"If Justice [Anthony] Kennedy was reluctant in the past to overturn the law because of its symbolic importance, then Congress has given him reason to do it," said Jones Day partner Michael Carvin, author of a key brief on Shelby County's side.
"Congress has thumbed its nose at the Court's repeated expressions of concern over the constitutional implications of section 5, and for three years has ignored the Court's most recent warning that the law raises serious constitutional issues," said Carrie Severino of the conservative Judicial Crisis Network.
Many of the briefs point to the court's 2009 decision in Northwest Austin Municipal Utility District No. 1 v. Holder, which stopped short of declaring Section 5 unconstitutional, but pointed out "serious constitutional concerns" including issues of state sovereignty and outdatedness. Chief Justice John Roberts Jr. said the formula by which the coverage of the law was determined "fails to account for current political conditions," and the bailout provision that lets jurisdictions bail out of the preclearance requirements is "all but a nullity."
In a reply brief for Shelby County, its lead lawyer Bert Rein of Wiley Rein wrote that in the years since the Northwest Austin decision, "Congress and the attorney general took no steps to address these constitutional concerns."
Several briefs on Shelby County's side also attack their adversary's contentions that the preclearance mechanism is fair and that the bailout provision is an adequate way for deserving jurisdictions to get out from under the preclearance requirement of Section 5.
One brief filed by covered states Arizona, Georgia, South Carolina and South Dakota complained that the preclearance rules were so "burdensome and arbitrary" that Arizona had to seek Justice Department approval to close branch offices of the motor vehicles department, and a Georgia county could not make a change in a polling place necessitated by construction delays. As for the bailout provision, the brief asserted that its purported benefits are "illusory," because the rules require that a state and all its subdivisions be clear of voting rights complaints for the previous 10 years before bailout can occur. The states assert that covered jurisdictions will remain under the unconstitutional burdens of the law "unless and until this court removes them."
Another key argument advanced by opponents of Section 5 also seems aimed at increasing the comfort level of justices who might worry about striking down as important a voting right enforcement tool as Section 5. Several briefs assert that even in the absence of Section 5, discriminatory voting practices can be "effectively addressed" by Section 2 of the Voting Rights Act, as Rein put it. Section 2 created a cause of action to challenge voting practices in court nationwide not just in covered jurisdictions.