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Why the Supreme Court May Rule Against the Voting Rights Act

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Posted on Feb 25, 2013
Flickr/ massmatt

By Suevon Lee, ProPublica

This report originally ran on ProPublica.

On Wednesday, the Supreme Court will hear arguments in Shelby County v. Holder, a case challenging the constitutionality of a key part of the Voting Rights Act of 1965. The cornerstone provision is known as Section 5, which requires some states and localities to get federal clearance before making any changes to their voting laws.

What is the Voting Rights Act? And why does it matter? Here’s a quick guide to what could be, as the influential SCOTUSBlog put it, “one of the most significant rulings of the current term.” 

What’s Section 5 again?

As we’ve explained before, Section 5 requires nine mostly Southern states — Alabama, Georgia, Louisiana, Mississippi, South Carolina, Alaska, Virginia, Texas and Arizona — and areas of seven others to preclear any change to a voting law or procedure with the federal government.

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This review is conducted by the Civil Rights Division of the Department of Justice or a panel of federal judges on the U.S. District Court for the District of Columbia. If a voting change hasn’t been submitted for review, the change can be legally unenforceable.

Section 5, which was enacted by the original Voting Rights Act, was meant to address the systemic disenfranchisement of African Americans by state lawmakers in the South since the end of Reconstruction.

Under the provision, covered jurisdictions must prove that any proposed voting change doesn’t have a discriminatory purpose or effect or would diminish minorities’ ability to elect a favored candidate.

How were these states identified?

When the Voting Rights Act originally passed, the rubric to identify the original bad actors looked at racist voting practices like literary tests and Census data indicating whether less than 50 percent of eligible voters voted in the November 1964 presidential election.

When Congress reauthorized the Voting Rights Act in 1970 for another five years, it mandated oversight of other states and municipalities with low voter turnout.

By 1975, when Congress extended the act for another seven years, the law was broadened to include discriminatory voting practices against language minorities. For example, states were flagged for offering ballots only in English where language minorities made up more than 5 percent of the voting-age population. (That’s how Alaska, Arizona and Texas got federal oversight. It’s also the reason why parts of Florida, Michigan, New York and South Dakota are included.)

In both 1982 and 2006, Congress extended Section 5 for another 25 years — without making any significant updates to the coverage triggers, or “formula” as it’s called (In 1982, Congress also established standards to allow covered jurisdictions demonstrating good behavior to “bail out” from under federal supervision).

Right now, Section 5 isn’t scheduled to expire until 2031 — which brings us to the current debate over its fairness and constitutionality in present-day circumstances.

How useful has Section 5 been?

Nearly everyone agrees that Section 5 once played a critical function to rein in recalcitrant state legislators determined to suppress the African American, and later on language-minority, vote.

It is its present application that’s now in dispute.

“America is no longer a land where whites hold the levers of power and minority representation depends on extraordinary federal intervention,” argues an amicus brief filed by the Cato Institute in the Shelby County case.

The kinds of voting law changes covered jurisdictions must submit for preclearance — back then, and still today — span large-scale changes like redistricting and voter ID laws to small things like changing a polling place or precinct, as this chart shows.

One way to look at the effectiveness of Section 5 is through the number of times the DOJ has requested more information from a jurisdiction that has submitted a voting change followed by a subsequent withdrawal of that proposal.

In a 2007 paper, Nathaniel Persily, a Columbia University professor of law and political science, concluded that since 1982, the DOJ requested more information from states or local governments 800 times, followed by the withdrawal of proposals in 205 of those instances.

“This represents a tiny fraction” of overall requests since 1982, Persily observes, “but it gives a sense of how many dogs did not bark as a result of the threat of a denial of preclearance.”

Just this past year, the provision was the reason federal judges blocked voter ID laws in both Texas and South Carolina, voided new district maps in Texas and prevented early voting reduction of hours in parts of Florida, citing a potential adverse effect on minority voters.

In the past year, the Justice Department objected to a total 16 proposed changes under Section 5, according to a DOJ official.

Does this tell us that Section 5 remains a viable tool concerning these specific jurisdictions? It depends how you look at it.

“There’s no question Section 5 covered the most egregious bad actors and the world looks different now,” said Heather Gerken, a professor at Yale Law School who specializes in election law. “But the question is, why does the world look different? And in some ways we can’t know because of the prophylactic rule.”

So who’s challenging Section 5?

Shelby County, Ala. In 2008, the city of Calera — located within Shelby County — redrew one of its electoral maps, bringing in hundreds of white voters and significantly decreasing the number of black voters, from 70.9 percent to 29.5 percent.

Since any change that would discriminate against minority voters violates the Voting Rights Act, the Justice Department stepped in and vetoed the proposed map. (The only black representative of the city council also lost his seat that election.)

The Justice Department also said the city relied on unreliable demographic data to justify the new map.

On April 27, 2010, Shelby County filed a lawsuit against the Justice Department in U.S. District Court for the District of Columbia, asking the court to declare Section 5 unconstitutional on its face – meaning, broadly applied, as opposed to just in the county’s case alone.

As Reuters details, the case caught the attention of Edward Blum, a conservative advocate who persuaded Shelby County to file a suit, in turn connecting the county with lawyers who could handle an appeal all the way to the U.S. Supreme Court. Blum is also behind the recent Supreme Court challenge to affirmative action in public universities, Fisher v. University of Texas. 


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