January 19, 2012

Is Section 5 of the Voting Rights Act constitutional? **Updated**

By Joshua P. Thompson Senior Attorney

Section 5 of the Voting Rights Act requires “covered” states to “preclear” any changes in their state election procedures with the federal government before those changes go into effect. Many southern states are covered by this requirement, as are various areas of other states (including California). The issue currently before the D.C. Circuit Court of Appeals is whether this preclearance requirement violates the constitution.

You may recall that the Supreme Court touched on that issue in the Northwest Austin case from 2009. PLF filed a brief in that case arguing that the preclearance requirement, while once justified by extreme discriminatory practices in covered jurisdictions, can no longer be constitutionally applied to states that have undergone social and political transformations. Unfortunately, the Supreme Court declined to rule on that issue, holding instead that the municipal district raising the challenge was itself eligible to “opt-out” of the preclearance requirement.  Thus, the constitutionality of Section 5 was put off for another day.  Chief Justice Roberts, writing for a unanimous court, noted “[w]hether conditions continue to justify such legislation is a difficult constitutional question we do not answer today.”

In a separate opinion, Justice Thomas, however, argued that Section 5 was unconstituional.  He wrote, “I conclude that the lack of current evidence of intentional discrimination with respect to voting renders §5 unconstitutional.  The provision can no longer be justified as an appropriate mechanism for enforcement of the Fifteenth Amendment.”

The case currently before the D.C. Court of Appeals only raises the issue that the Court put off: Is Section 5 of the Voting Rights Act constitutional?  PLF will be following the court’s decision, but expect this issue to be eventually heard by the Supreme Court.

Update: In a concurrence issued today in the redistricting case, Perry v. Perez, Justice Thomas reitierated his stance that Section 5 is unconstitutional.

Update 2: Our friends at the Cato Institute have a nice discussion of the Texas case and its Section 5 implications.

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