By Aaron M. Moore
On July 27, 2006, President George W. Bush signed into law a twenty-five year extension of the Voting Rights Act of 1965 (VRA). This extension included Section 5, a unique, prophylactic remedy to voting discrimination that covers only certain jurisdictions in the United States. Congress drafted the “coverage formula” of Section 5 with the purpose of singling out those states with the worst histories of entrenched, systematic voting discrimination, but has failed to update the data used in the formula since 1975. The age of the data, combined with the clear advancements in racial equality since enactment of the VRA, has fueled questions of whether those jurisdictions covered by Section 5 still have a disproportionate propensity toward voting discrimination. Unfortunately, the evidence indicates that they do. Despite this, certain reforms are needed to both increase the effectiveness of Section 5 and to reinforce its constitutional foundation.
Prior to Section 5, case-by-case adjudication represented the primary means of combating voting discrimination. This method proved expensive, time consuming, and ultimately ineffective since many times after a court struck down a discriminatory voting practice, offenders would simply devise a new method. Congress looked for a new approach, and Section 5 was the solution. Once covered under Section 5, a jurisdiction’s voting practices are locked in place and any voting-related changes must be submitted and approved by either the U.S. Attorney General or the U.S. District Court for the District of Columbia. Additionally, Section 5 also shifts the burden to the jurisdiction to prove that the new voting practice “neither has the purpose nor will have the effect of denying or abridging the right to vote on account of race.” 42 U.S.C. § 1973c(a). This approach has proven extremely successful. The number of African-American elected officials has risen dramatically from roughly 300 in 1965 to over 9,100 in 2006. Additionally, voter registration and voter turnout among minorities in the covered jurisdictions has increased significantly with seven of the states boasting rates higher than the national average.
Despite this success, or possibly even because of it, some have questioned Section 5’s continued constitutionality. These constitutional concerns came to a head in 2009 before the Supreme Court in Northwest Austin Municipal Utility District Number One v. Holder. The tone of the oral arguments led many to predict that the Court would strike down Section 5, and while the ultimate opinion avoided the constitutional question, the dicta of the case raised serious concerns for the future of Section 5. The Court seemed to go out of its way to question the continued constitutional standing of Section 5. One central concern was whether the coverage formula still represents the “current political conditions,” given the fact that the data is over thirty-five years old. 129 S. Ct. 2504, 2512 (2009).
There are multiple cases currently in the judicial system that raise the issue of Section 5’s constitutionality. One, Shelby County, Alabama v. Holder, is currently before the U.S. Court of Appeals for the District of Columbia Circuit. Another, which some have predicted may make its way to the Supreme Court before Shelby County and possibly even this year, is Texas v. Holder. Thus, it is highly likely that the Supreme Court will have another opportunity to rule on this important statute within the next year.
When the Supreme Court analyses the constitutionality of Section 5, it will likely look to the congressional record Congress amassed to determine whether there is sufficient evidence of voting discrimination in the covered areas to justify singling them out and imposing this significant burden to federalism. The record is enormous, numbering over 15,000 pages.
Within the congressional record there are a few especially important categories of evidence in support of Section 5 continued need. First is voting discrimination lawsuits brought under Section 2 of the Voting Rights Act. Section 2 is the statutory embodiment of the Fifteenth Amendment and prohibits any voting procedure or practice that “results in a denial or abridgement of the right . . . to vote on account of race.” 42 U.S.C. § 1973. In a comparison of Section 2 lawsuits since 1982 that resulted in a published judicial opinion, about 55% came from covered jurisdictions despite the fact that less that 25% of the national populations lives in those jurisdictions. Further, in covered jurisdictions, plaintiffs won 42.5% of their lawsuits compared to 32.2% in uncovered areas.
Another category of evidence is preclearance objections, situations where the Department of Justice (DOJ) denies preclearance for a voting-related change. During the 1980s, discriminatory intent or purpose was a legal basis for 47% of objections. This number jumped to 74% in the 1990s. Additionally, during the 40 years from 1965 to 2005, not a single Louisiana redistricting plan has received preclearance in its initial form. While standing alone these sources of evidence may not show the entire picture, and support the conclusion that voting discriminations is still disproportionately present in the covered jurisdictions. Further, while Section 5 has proven extremely successful at tearing down barriers to equal voting rights, the evidence bolsters the arguments that absent the prophylactic protections of Section 5 many of the covered areas would regress.
The evidence included in the congressional record is enough to support Section 5’s continued constitutionality. Despite this, there are certain reforms that would make Section 5 more successful and ultimately fortify its constitutionality.
First, there should be a means by which DOJ may add individual jurisdictions to Section 5’s coverage. As the country evolves and demographics change, the risk of voting discrimination undoubtedly shifts to new jurisdictions. By allowing jurisdictions to be added to coverage it would ensure that coverage is extended to those areas that need the protection of Section 5.
Second, Congress should fashion an efficient means by which jurisdiction may remove themselves from coverage. There is currently a “bailout provision” in the VRA that allows this, but only a handful of jurisdiction have successfully utilized this provision. It must be reformed to ensure that the cost and evidentiary burden of the provision are not prohibitive. When combined with the ability to add jurisdiction to coverage, this would reinforce Section 5’s constitutionality by ensuring that its coverage represents, as closely as possible, the current state and needs of the country.
While Section 5 remains a necessary and constitutional statutory provision, there are reforms that would both increase its effectiveness and strengthen is constitutional standing. Given the current Supreme Court’s concerns over the current need and coverage of Section 5, Congress, guided by the apolitical issue of voting equality, should make reforms now.
- Aaron M. Moore, Preserving the Ark of Our Safety: How a Stronger Administrative Approach Could Save Section 5 of the Voting Rights Act, 64 Admin. L. Rev. (forthcoming 2012).
- Fannie Lou Hamer, Rosa Parks, and Corretta Scott King Voting Rights Act Reauthorization and Amendments Act of 2006, Pub. L. No. 109-246, 120 Stat. 577.
- 42 U.S.C. § 1973b.
- Nw. Austin Mun. Util. Dist. No. One v. Holder (NAMUDNO), 129 S. Ct. 2504 (2009).
- Robert Barnes, Voting Rights Provision in Peril, Wash. Post, Feb. 10, 2012, at A2.
- Sheryll D. Cashin, Democracy, Race, and Multiculturalism in the Twenty-First Century: Will the Voting Rights Act Ever Be Obsolete?, 22 Wash. U. J.L & Pol’y 71 (2006).
- Luis Fuentes-Rohwer, Legislative Findings, Congressional Powers, and the Future of the Voting Rights Act, 82 Ind. L.J. 99 (2007).
- J. Morgan Kousser, The Strange, Ironic Career of Section 5 of the Voting Rights Act, 1965–2007, 86 Tex. L. Rev. 667 (2008).
- Nathaniel Persily, The Promise and Pitfalls of the New Voting Rights Act, 117 Yale L.J. 174 (2007).
- S. Rep. No. 109-295 (2006).
- Charles S. Bullock, III & Ronald Keith Gaddie, Good Intentions and Bad Social Science Meet in the Renewal of the Voting Rights Act, 5 Geo. J.L. & Pub. Pol’y 1 (2007).
- Ellen Katz et al., Documenting Discrimination in Voting: Judicial Findings Under Section 2 of the Voting Rights Act Since 1982, Final Report of the Voting Rights Initiative, University of Michigan Law School, 39 U. Mich. J.L. Reform 643 (2006).Pamela S. Karlan, Section 5 Squared: Congressional Power to Extend and Amend the Voting Rights Act, 44 Hous. L. Rev. 1 (2007).
- Peyton McCrary et al., The End of Preclearance As We Knew It: How the Supreme Court Transformed Section 5 of the Voting Rights Act, 11 Mich. J. Race & L. 275 (2006).
- To Examine the Impact and Effectiveness of the Voting Rights Act: Hearing Before the Subcomm. on the Constitution of the H. Comm. on the Judiciary, 109th Cong. (2005) (statement of Marc Morial, President and CEO, National Urban League).
- Tim Eaton, State Tries to Force Challenge of U.S. Voting Law, Austin American-Statesman, Mar. 14, 2012, http://www.statesman.com/news/texas-politics/state-tries-to-force-challenge-of-u-s-2238744.html?cxtype=rss_texas-politics.
- Richard Hasen, Texas Ups Ante in Its Voter ID Case, Says Voting Rights Act is Unconstitutional: Case Could Reach SCOTUS Before Election, Election L. Blog (Mar. 14, 2012, 10:14 PM), http://electionlawblog.org/?p=31583.