By: Shayna Gilmore

President Johnson signed the Voting Rights Act into law in 1965 in an effort to further the Civil Rights Movement. As a society, we would like to think that we have overcome the crippling discrimination that severed America in two; however, the reality is that the same racism still exists today, but it has taken a different form.

There is a lot of controversy surrounding the Voting Rights Act as  a severe limitation on states’ rights. Section Five of the Act strips “covered jurisdictions” of the ability to change their voting laws without first receiving the approval of the Department of Justice. The Justice Department examines the state’s proposed change in a voting law, and if the law creates no discriminatory effects, then the law can be enacted. However, if the law is discriminatory, then the law will be preempted. The Department of Justice will preempt a law that in any way inhibits a particular class of people from voting.

Section Two of the Fifteenth Amendment to the U.S. Constitution gives Congress the enumerated power to pass any law necessary to ensure that there will be no voting discrimination on the basis of race, called the Enforcement Power. The Voting Rights Act of 1965 was Congress’ response to Southern states passing laws that made it difficult for African Americans to vote.

At the time of its passage, public opinion was amenable to the law because of prevalence of racism in America. However, public opinion has shifted; today people feel that in the forty-eight years since the passage of the Voting Rights Act, American society has progressed, and there is no longer a need for such a stringent law, especially one that so severely restricts states’ rights. In Northwest Austin Municipality Utility District Number One v. Holder, decided in 2009, the Northwest Austin Utility District Number One brought a suit challenging Section Five of the Voting Rights Act. However, the Supreme Court avoided the constitutional issue of Section Five in its opinion, ruling instead that the district could opt out of Section Five if it met the guidelines posited in the law. Even though the Court did not decide on the constitutionality of Section Five, many Justices took swipes at the provision. Chief Justice Roberts questioned the logic of limiting the Act to  “covered jurisdictions” and why Section Five did not extend to all fifty states. Justice Thomas wrote a concurring opinion that alluded to the obsoleteness of Section Five. Justice Thomas insists that the obsoleteness of the Voting Rights Act it is a testament to society’s evolution beyond discriminatory tendencies. Though Justice Roberts’ majority opinion did not address the constitutionality of Section Five, the dicta in these concurring opinions foreshadowed the Court’s future hostility towards Section Five of the Voting Rights Act.

On February 27, 2013, the Supreme Court heard the Shelby County v. Holder arguments, in which the court must decide the constitutionality of Section Five of the Voting Rights Act. Shelby County is a county in Alabama that is challenging the constitutionality of Section Five of the Voting Rights Act. Although there is not yet a projected date of judgment, the justices were hostile to the government’s arguments in defense of Section Five.  During the hearing, Justice Scalia referred to the Voting Rights Act a “racial entitlement.”

With the narrowing of Congress’ Enforcement Powers per the Reconstruction Amendments (Amendments  Thirteen, Fourteen, and Fifteen) in the years after the VRA was passed by Congress, it is likely that the Court will reign in Section Five of the Voting Rights Act. However, ruling for Shelby County in the current case would severely harm the progress America has made in civil rights law.

Many critics of Section Five, including the aforementioned Supreme Court justices, argue that there is evidence that voter discrimination is no longer a pressing issue, and that such a stringent law is no longer necessary when the problem of discrimination is not as prominent. Such an argument for repeal of the VRA or determination that Section Five unconstitutional is counterintuitive, however; a likely reason as to why there is less evidence of voter discrimination is because Section Five itself is working to curtail voter discrimination. Section Five’s success necessarily results in fewer instances of voter discrimination. Critics of Section Five argument’s rest upon the assumption that society has evolved beyond racial discrimination.  Unfortunately,  thousands of pages of evidence to the contrary were added to the Congressional Record when Congress voted to extend the Voting Rights Act in 2006.Thus far, there is insufficient evidence to the contrary to empirically demonstrate Section Five’s success.

Further, “covered jurisdictions” have changed their discriminatory tactics in suppressing minority votes outside of the reach of Section Five. Voter identification laws are the most popular iteration of voter discrimination. Requiring voters to obtain state issued identification instead of allowing people to bring alternative proof of residence documents places a higher burden on voters and discourages people, mainly minorities, from voting. Other tactics include disallowing people from voting on Sundays, a common practice in black Baptist churches, and shortening the hours polls stay open in certain areas that generally have large minority populations. Today, these well-established practices, though not covered under Section Five, create de facto discrimination against minority populations.

Contrary to what Justices Roberts, Thomas, and Scalia assert, voter discrimination is still a prominent feature of American society. States and American society have only evolved to the point where they no longer overtly discriminate against minorities; rather, states hide behind the veil of facial neutrality in order to accomplish their discriminatory goals. Consequently, Section Five of the Voting Rights Act is necessary and plays a vital role  in protecting minorities against backhanded attempts to discriminate.


Northwest Austin Municipality Utility District Number One v. Holder, 577 U.S. 193 (2009).–election.html