The Voting Rights Act of 1965: Section 5’s Key Civil Rights Provision Must Be Urgently Preserved

By: Carlos Garcia

“[O]ne of the most monumental laws in the entire history of American freedom” (http://millercenter.org/president/speeches/detail/4034) and a landmark piece toward the civil rights of every American, the Voting Rights Act of 1965 was enacted to combat the evils of discrimination in voting across the country.

The Voting Rights Act, reauthorized in 2006, has three major sections, Sections 2 and 4 and Section 5 which is currently being challenged in the United States Supreme Court with oral arguments held on February 23, 2013.  Section 2 prohibits voting practices or procedures that discriminate on the basis of race, color, or membership in certain language minority groups.  Section 4 established a formula to determine whether a particular jurisdiction was to be “covered” and hence subject to the laws of the Voting Rights Act.  Covered jurisdictions include mostly southern states—due to a period of time of disfranchisement of African Americans—and some northern states, including New York, New Hampshire, and Michigan.  Section 4 also contains a “bailout” provision in which states can apply to opt out of coverage under the Act’s special provisions by demonstrating that there has been no discrimination for the past ten years in the jurisdiction.  States who have applied have successfully opted out and those who have not remain covered.

The constitutionally challenged section of the Voting Rights Act, Section 5, requires preclearance before a state or county may change their voting rules and procedures.  Specifically, federal preclearance requires that jurisdictions covered by Section 4 obtain approval by either the U.S. Department of Justice or a federal court in Washington, D.C. before changing their voting procedures or rules.

The effect of Section 5 was to preemptively eradicate discrimination before it occurred.  Illustrative of such an instance is, for example, where a jurisdiction decides to redraw its congressional districts or pass voter-ID laws with the intent to discriminate against a certain class of voters; or, where authorities decide to change polling locations from one place, such as a Baptist church highly populated with African Americans to another location, such as a Methodist church where it is no longer easily accessible for African Americans.

On February 27, 2013, the Supreme Court heard oral arguments from parties on the constitutionality of Section 5.  This came after Shelby County, Alabama, along with a number of conservative legal organizations, filed suit in federal court in 2010, alleging, inter alia, that Section 5 puts unnecessary burdens on states by having to satisfy the federal preclearance requirement.  See Shelby County, Alabama v. Holder, No. 1:10-cv-00651 (D.D.C.).  The Supreme Court granted certiorari to determine the issue of whether Congress’ 2006 decision to reauthorize Section 5 of the Act under the coverage formula of Section 4(b) exceeded its powers under the Fourteenth and Fifteenth Amendments and thus violated the Tenth Amendment and Article IV of the United States Constitution.

The Fourteenth Amendment prohibits states and local governments from depriving persons of life, liberty, or property without due process of law.  The Fifteenth Amendment protects citizens from having their right to vote “denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude” (http://www.loc.gov/rr/program/bib/ourdocs/15thamendment.html).  The Tenth Amendment states that “powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people”  (http://www.law.cornell.edu/constitution/tenth_amendment).  And, Article IV guarantees the right of self-government for each state.

Shelby County, along with other challengers, argued, inter alia, that Section 5 is no longer necessary in today’s society, as major efforts to discriminate in voting no longer exist, and therefore the law places unnecessary burdens on states who must satisfy the preclearance requirement.

Defenders of Section 5 argue, inter alia, that the bailout provision under Section 4 provides covered states to opt out of the Voting Rights Act by demonstrating that there is no longer any discrimination present in that area; thus, if there is no longer any discrimination in a specific jurisdiction, a covered jurisdiction should be able to successfully opt out of coverage; if they cannot, this demonstrates that discrimination is still present and that Section 5 is still needed.  Furthermore, since there are non-southern states and counties that are covered under Section 4, it is clear that the writers of the Act did not intend to wholly isolate the Act’s influence to southern states.  Defenders claim that the Act’s non-limitation to specific geographic areas where discrimination was once rampant, but rather its application across the country, bolsters their position.

To understand the Section 5 challengers’ positions, one must understand what Section 5 preclearance requires.  Under Section 5, a jurisdiction must first obtain a declaratory judgment by the U.S. District Court for the District of Columbia or make an administrative submission to the Attorney General.  The jurisdiction has the burden of proof in demonstrating that the proposed voting amendment does not abridge “the right of any citizen to vote on account of race, color, or membership in a language minority group” http://www.justice.gov/crt/about/vot/sec_2/about_sec2.php).  Only when the jurisdiction is unable or unwilling to prove the absence of discrimination will the requested judgment be denied or objected to by the Attorney General in the case of a submission.  And, only then will the jurisdiction’s voting rule change remain “legally unenforceable” by the Act (http://www.justice.gov/crt/about/vot/sec_5/about.php).

The benefits of having such a requirement are clear:  it prevents discrimination preemptively, before it even happens.  The issue, of course, is whether such preventive measures are necessary in today’s society and whether they abridge states’ rights.  The burdens of such a law are also evident:  it requires jurisdictions to go through the trouble of having to request for federal permission to modify their own voting rules and procedures.

On the other hand, is it reasonable to strike down a law because it no longer has the same potential punch and effect it used to during the Civil Rights Movement and because it places undue burdens on states?  Although no concrete data exists showing that southern states are more discriminatory than other states, as Chief Justice John Roberts asked during oral argument, there is no proof that the abolishment of Section 5 will not lead to more discriminatory practices.  It is not worth risking an aggregation of discriminatory practices, taking into account the most recent voter-ID law changes and additional proof requirements of having to show citizenship to register and vote.  Although no longer present in its extreme form, discrimination still exists.  A vivid example includes State of Texas v. Holder in which Texas, a covered state, adopted redistricting plans for Congress, the state senate, and the state house after the 2010 Census.  The district court found that the state’s redistricting plans were racially discriminatory in effect and in purpose.  Another instance includes South Carolina and Texas’ restrictive photo ID provisions, which were ultimately precluded by Section 5.  Finally, Florida’s restrictions on early voting were held to be racially discriminatory under Section 5.

Section 2 of the Voting Rights Act is insufficient to replace Section 5.  It requires the challenger to prove that he/she was discriminated against, a requirement that is all too often overly difficult or impossible to prove.  In contrast, Section 5’s burden of proof lies in the state, a sensical measure that takes into account the imbalance of power inherent in discrimination suits.

Additionally, under the bailout provision of Section 4, a state can be exempted from coverage under Section 5, providing an adequate check against the Act.  Since 1982, every jurisdiction that has requested a bailout has been approved, and those that remain covered are jurisdictions that have not applied for bailouts.  To be exempted from coverage requires a state to simply obey the law and assure that individuals are not discriminated against in voting.

Ultimately, no law is useless if it still functions to deter prohibited practices; and no law places undue burdens on states if what the law aims to do is protect the people. 

Sources:

http://www.thedailybeast.com/articles/2013/02/27/supreme-court-likely-to-strike-down-the-voting-rights-act-s-section-5.html

http://www.justice.gov/crt/about/vot/sec_2/about_sec2.php

http://www.justice.gov/crt/about/vot/misc/sec_4.php

http://nbcpolitics.nbcnews.com/_news/2013/02/27/17118509-key-provisions-of-voting-rights-act-appear-in-jeopardy-after-high-court-argument?lite

http://www.thedailybeast.com/articles/2012/09/01/after-voter-id-wars-what-next-a-truce-through-modernization.html

http://www.lawyerscommittee.org/projects/voting_rights/page?id=0134

http://www.scotusblog.com/case-files/cases/shelby-county-v-holder/

http://www.justice.gov/crt/about/vot/sec_5/covered.php

http://tv.msnbc.com/2013/03/02/former-gop-senator-voting-rights-act-should-be-a-legislative-matter/

http://www.justice.gov/crt/about/vot/sec_5/about.php

http://www.justice.gov/crt/about/vot/sec_2/about_sec2.php

http://www.washingtonpost.com/blogs/wonkblog/wp/2013/03/01/the-supreme-court-could-strike-down-part-of-the-voting-rights-act-heres-what-that-would-mean/

http://www.rutgerslawreview.com/2012/op-ed-brenda-wright/

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