Private: Why Section 5 of the Voting Rights Act Still Matters

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.

At the heart of the argument against Section 5 lies the unfounded belief that our history of voting rights has been one of consistent progress; that we have reached the point where equal voting rights are guaranteed; and that eliminating Section 5 will not cause us to regress. But to paraphrase Dr. King, the arc of the universe may bend toward justice, but it has never been a smooth curve. When Congress reauthorized Section 5 in 2006, the world had certainly progressed since 1965. Yet, after careful review of a record in excess of 15,000 pages, Congress determined that voting discrimination continued to be pervasive in covered jurisdictions. The reauthorization of Section 5 was consistent with Congress’ power and responsibility under the Fifteenth Amendment to make sure that racial discrimination does not infiltrate the electoral process. Shelby County’s attempt to cast doubt on the constitutionality and necessity of Section 5 is simply not supported by the extensive record of electoral discrimination before Congress in 2006.

Without Section 5, voters’ only recourse to challenge voting rights violations would be Section 2 of the Voting Rights Act. But Section 2’s protections alone are insufficient to protect minority rights. Litigation pursuant to Section 2 is time consuming and expensive, and the discriminatory impact of the challenged policy or practice remains in effect while the litigation proceeds. And with Section 2, the benefits of voting discrimination vest in an incumbent who never should have been elected. Unlike Section 2, Section 5 shifts the burden onto covered jurisdictions to establish that a proposed voting change has neither a discriminatory effect nor purpose prior to implementation. Section 5 both blocks and deters discrimination, often prompting jurisdictions to ameliorate the discriminatory impact of a proposed voting change before it is formally blocked by the Department of Justice.

Shelby County and its amici contend that Congress erred in its determination that Section 5 of the VRA is still necessary in light of the progress that has been made. But the risk to minority voters is still real. As Congressman John Lewis has explained: “the danger of accepting the argument that we have made so much progress that we no longer need the very tool that made all that progress possible is that we will forget one of the most important lessons history has to teach us, namely: that revolutions and advances in popular rights and democratic rights can be reversed; that history can move backward …..”  Amicus Brief on Behalf of Congressman John Lewis. That the Voting Rights Act has begun to cure the malaise of voting discrimination does not render its most powerful tonic superfluous. The acknowledged success of the VRA is not proof that Section 5’s usefulness has expired. In fact, it is evidence that Section 5’s powerful medicine is working.

[image via The U.S. National Archives]

Constitutional Interpretation, Democracy and Elections, Equality and Liberty, Racial Justice, Supreme Court, Voting Rights