Congress’ Constitutional Power to End Racial Discrimination in Voting

February 22, 2013

by Jeremy Leaming

Once again the U.S. Supreme Court will grapple with the constitutionality of Section 5, the strongest enforcement provision of the landmark Voting Rights Act of 1965, when Alabama officials take to the high court on Feb. 27 to argue that the provision is outdated and subverts state sovereignty.

Noted in this post, groups arguing in favor of Section 5 say Alabama officials ignore persistent violations of Section 5 in trying to persuade a Court controlled by a right-wing majority that it is now time to do away with the law’s integral enforcement measure. Several of the groups point out that as early as 2010 officials in Shelby County, Ala., a largely white enclave outside Birmingham, were working to alter voting districts to dilute the minority vote. Section 5 applies to several states and municipalities, mostly in the South, with intense histories of racial discrimination in voting. It requires those jurisdictions to obtain “preclearance” from the Department of Justice or a federal court in Washington before making any changes to their voting rules and procedures.

But since its enactment in 1965 a string of covered jurisdictions has lodged lawsuits against Section 5. As noted by David H. Gans and Elizabeth B. Wydra in a new ACS Issue Brief on the case, Shelby County v. Holder, the Supreme Court has upheld the constitutionality of Section 5 on four occasions – 1966, 1973, 1980, and 1999 – “recognizing that the Act falls squarely within congressional power to enforce the constitutional ban on racial discrimination in voting.”

Several other groups have lodged friend-of-the-court briefs with the Supreme Court providing recent examples of racial discrimination in voting in the covered jurisdictions and arguing that Section 5 is an appropriate congressional action to enforce the promise of both the Fourteenth and Fifteenth Amendments. (The Fourteenth Amendment bars states from depriving people of liberty and the Fifteenth Amendment prohibits states from discriminating against voters because of their race.)

During a recent ACS panel discussion on the Shelby County case Armand Derfner, a renowned attorney who has argued on behalf of voters in the covered jurisdictions against racial discrimination in voting, dismissed arguments that Section 5 has outlived its usefulness. (Video of the discussion is here.)


First he noted that the opponents complain about a formula Congress created to help determine the scope of Section 5. But the formula used by Congress was to help identify the most horrendous forms of racial discrimination and where they were happening; the places where African Americans were killed at the polls or where literacy tests were employed as a form of “subterfuge” or sham to keep minorities from voting.

The high court is correct, Derfner said, that the use of the formula today “has to be justified by current data or by current conditions.”

But, he continued those conditions should not be looked at in isolation. “The question is what about the job that Congress set out to do.” The current conditions in the covered states, Derfner said, are still significant, noting some of the examples provided by the other panelists of very recent machinations by politicians in the covered jurisdictions to suppress the minority vote.

“We can go through many, many stories like that in my home state, my own county [South Carolina],” he said. “And so clearly the places that are covered still have significant racial discrimination in voting, even if it’s not as horrendous as it was in 1965. These places are still significantly worse, and the Shelby County opinion in the district court and the court of appeals goes through the data.”

Derfner added that Congress via the Fifteenth Amendment was given the power to “end voting discrimination.” Congress started the job in 1965, but has Congress’s power to end voting discrimination disappeared because current conditions have seen some improvement?

“Did Congress have the power to do only half the job,” he asked. “Or does Congress have the power to keep on going until we have discrimination minimized to the extent practicable. Why should Congress have to go away when its job is not done? Especially when Congress under the Fifteenth Amendment has the power and the duty to end voting discrimination.”

Congress, Derfner said has looked at the Voting Rights Act time and time again and in 2006 reauthorized it overwhelmingly. In doing so Congress amassed a voluminous record of evidence that in the covered jurisdictions the job of combating racial discrimination in voting is not finished.

Regardless of the claims from the opponents of the Voting Rights Act, racial discrimination in voting still runs deep in the covered jurisdictions. The justices, if they can show judicial restraint, will let Congress finish its job.

[image via Wikimedia]