Deborah A. Archer

  • February 25, 2013
    Guest Post

    by Deborah N. Archer, Associate Dean for Academic Affairs and Professor of Law, New York Law School. This post is part of an ACSblog symposium on Shelby County v. Holder.

    No law has been more critical in advancing voting rights for all Americans than the Voting Rights Act of 1965. When Congress first enacted the Voting Rights Act, it concluded that case-by-case litigation had been wholly ineffective in guaranteeing African-Americans the right to vote and that nothing short of a prophylactic remedial scheme would succeed in eradicating the “insidious and pervasive evil which had been perpetuated in certain parts of our country.” (South Carolina v. Katzenbach, 383 U.S. 301, 309 (1966).) The heart of the Voting Rights Act – the strong medicine that has done so much to protect the voting rights acts of people of color – is Section 5, which prohibits covered jurisdictions from implementing new voting standards, practices or procedures unless the proposed change has been “pre-cleared” by the Department of Justice or the United States District Court for the District of Columbia. (42 U.S.C. §1973(c)(a)) The law places the burden on those covered jurisdictions to prove that any proposed changes will not limit minority voting rights.

    From the moment Section 5 was first enacted, jurisdictions that fell within its purview depicted the legislation as an illegitimate intrusion by an all-powerful federal government on state and local sovereignty. In Shelby County v. Holder, Shelby County insists that the Act’s pre-clearance provisions are no longer neededbecause the Act has succeeded in doing so much good, and that covered jurisdictions now should be relieved from the “burdens” of pre-clearance. Never mind that as recently as 2008 Shelby County itself was found to have engaged in racially discriminatory conduct. The truth is that across the country, states, cities and counties continue to enact practices and procedures that suppress, dilute, and infringe upon minorities’ constitutional right to vote. The harms that Section 5 was designed to counter remain, making the law as critical as it has ever been.