When the Supreme Court grants review of a case, it usually accepts the wording of the “question presented” by the petitioner’s brief.
But in granting certiorari on Nov. 9 in the voting rights case Shelby County v. Holder, the court did a slight rewrite of the question offered by Shelby County, adding the Fourteenth Amendment to the case – and giving a glimmer of hope to worried supporters of the Voting Rights Act.
As written by lawyers for the Alabama county, the question presented asked only whether the pre-clearance Section 5 of the Voting Rights Act exceeds Congress’s authority under the Fifteenth Amendment, the post-Civil War amendment that specifically protects the right of all citizens to vote.
But civil right intervenors, led by the NAACP Legal Defense and Educational Fund, told the court in their brief that the wording of the question was incorrect, and that the Fourteenth Amendment, with its broader equal protection wording, should be added if the court granted review. Solicitor General Donald Verrilli Jr. also said in his brief for the government that Shelby County’s effort to “pare down” the inquiry is based on a “mistaken understanding” of the Constitution and the history of the Voting Rights Act.
The wording of the “question presented” is not a trivial matter. In calibrating the scope of a case, justices often refer to the question presented to decide which issues and arguments are relevant, and which are out of bounds.
“We think the broader look is important,” said Debo Adegbile, acting director counsel of the legal defense fund. “It means that the court will look at the full scope of the enforcement authority of Congress.” Asked if inclusion of the Fourteenth Amendment gave his side a better shot at winning and preserving the Voting Rights Act, Adegbile said yes, adding, “We want the fuller story to be told.”
That fuller story, Adegbile said, includes the fact that the court has already ruled that intentional dilution of voting power violates the Fourteenth Amendment. In addition, Congress invoked both the Fourteenth and the Fifteenth Amendment when it renewed the Voting Rights Act in 2006.
“We added the Fourteenth Amendment because the Supreme Court has never decided the question of whether intentional vote dilution violates the Fifteenth Amendment, as it has for the Fourteenth Amendment. Much of what Section 5 protects [against] is vote dilution, as opposed to vote denial,” said Jon Greenbaum, chief counsel of the Lawyers’ Committee for Civil Rights Under Law, and counsel of record for the intervenors in the Shelby County case. “We’re glad that the Supreme Court added the Fourteenth Amendment to the question presented, and we feel good about the arguments we will be presenting to the court.”
Bert Rein of Wiley Rein, the lead lawyer for Shelby County, said he had no problem with the court’s revision of the question presented. He speculated that some justices decided that if they focused only on the Fifteenth Amendment in his case, “they could get involved in a fight again” with a follow-up case raising the Fourteenth Amendment. “I don’t think they want to hear this case twice.”
Rein also said the inclusion of the Fourteenth Amendment in the case does not increase the chances that Section 5 will be upheld. “It doesn’t gain anybody,” Rein said.
Tony Mauro is the U.S. Supreme Court correspondent for The National Law Journal, a Legal affiliate based in New York.