It’s time for Section 5 of the Voting Rights Act to go

Last week, PLF filed this brief in the United States Supreme Court in support of Shelby County, Alabama.  Shelby County is challenging the constitutionality of Section 5 of the Voting Rights Act.  PLF’s brief urges the Supreme Court to take up this very important case.

The Voting Rights Act (Act) was an iconic piece of legislation.  It was passed in 1965, when less than half of all blacks in the South were given the right to vote.  Rampant discrimination was pervasive throughout many states of the Deep South, and the federal government was having a very difficult time ensuring the enfrancisement of black Americans.  Congress attempted many different pieces of legislation to curtail these abuses.  But southern legislatures would simply amend their voting practices in a manner that comported with the new law, and find a new avenue to deny blacks the right to vote.   In came the Voting Rights Act.

The Act was an ingenious piece of legislation passed under Congress’s 15th Amendment Enforcement Clause powers.   The Act’s most noteworthy aspects are found in Sections 4 and 5 of the Act. Section 4, used a formula to determine which states were perpetuating the most egregious violations of the 15th Amendment (i.e. denying blacks the right to vote), and placed them under federal receivership.  Thus, the most discriminatory states of the Deep South were “covered” under Section 4’s coverage formula.

These covered states, in turn, under Section 5 of the Act, were then required to “preclear” any voting change — however trivial — with the federal government.  For example, if Georgia, a covered state, wanted to change the date of its primary election from August 1 to August 2, it would have to get federal approval for that decision before the change could take effect.  While Georgia may have had a non-discriminatory reason for wanting to change its primary day,  perhaps, it had a discriminatory motive (e.g. blacks were less likely to vote that day).  Thus, by requiring these covered states to preclear any voting change with the federal government, Section 5 ensured that these jurisdictions could no longer disenfranchise black Americans through some new devious election device.

Of course, Section 5 came with great costs.  On its face, it denies covered states equal sovereignty.  It seriously infringes the power of states over their own elections.  When it was passed, Chief Justice of the Supreme Court, Earl Warren, described it as an “[u]ncommon exercise of congressional power that would not have been appropriate absent the exceptional conditions and unique circumstances present in the targeted jurisdictions.”   Nevertheless, the Supreme Court upheld the Act, because at that time it was necessary to securing all Americans their rights under the Fifteenth Amendment.

Unlike many (most) pieces of congressional legislation, the Voting Rights Act was hugely successful.  Covered states of the Deep South almost immediately opened the polling place to black Americans.  For example, within 5 years, Mississippi jumped from only 7% black voter registration to 60%.  More importantly, the situation continued to improve.  Today, the covered states of the Deep South have a robust two party system (changed from the one-party, Dixiecrat system of the 1960s), 31-45% of southern legislatures are represented by minorities, we have a black President — the list could go on.  No one could plausibly argue that the voting situation in the Deep South today is reminiscent of the situation 50 years ago.

Yet, Section 5 remains largely unchanged.  The covered states remain covered based on the same formula from the 1960s.  When the Voting Rights Act was reauthorized in 2006 — this time for another 25 years — there was no attempt by Congress to justify its outdated coverage formula.  If Congress had so attempted, they would have noticed a number of very interesting things:  (1) there is no discernible difference between registration, turnout, and office holding rates for minorities in covered jurisdictions versus non-covered jurisdictions; (2) lawsuits brought by minorities alleging discriminatory voting practices are more likely to come from non-covered states; (3) the Department of Justice denies less than 0.5% of all requests for changes from covered states; (4) the jurisdictions experiencing the most notorious voting problems in recent memory — Florida and Ohio — are uncovered, yet jurisdictions in Michigan and Maine, with next to zero claims of discrimination, remain covered.   Et cetera.

It’s time for the Supreme Court to review Section 5 of the Voting Rights Act.  Three years ago, in Northwest Austin, the Court warned Congress that “[p]ast success alone … is not adequate justification to retain the preclearance requirements.”  While the Court put off deciding the constitutionality of Section 5 for another day, its warning went completely unheeded by Congress.  As Shelby County noted in its opening brief: “[I]n the more than three years after Northwest Austin, Congress held not one hearing, proposed not one bill, and amended not one law in response to the concern that Sections 5 and 4(b) cannot be constitutionally justified based on the record compiled in 2006.”

What was once universally seen as an extreme temporary measure to guarantee blacks the right to vote, is now just another unjustifiable governmental boondoggle — a severe intrusion into state sovereignty that is no longer needed to secure the rights protected by the Fifteenth Amendment.  If some other mechanism is needed, then Congress should base its passage on contemporary voting statistics, not historical artifacts.

And when Section 5 is struck down — as it should be — we should applaud.  America has come a long way since 1965.  The undeniable evil that Section 5 remedied is no longer pervasive in the Deep South.  Section 5 worked!  And it is no longer necessary.  Indeed, it is unconstitutional.