The Problem Play of Voting Rights: Is it Curtain Call for Section 5 of the Voting Rights Act?

By November 6, 2012

By: Jorge R. Delgado

“Voter ID” laws, voter purges, early voting changes, and similar measures have become familiar terms in today’s news cycle.  One person’s initiative to stop voter fraud easily becomes another person’s surreptitious scheme to suppress minority voting rights.  Statistics offer plenty of fodder for disagreement, and disagreement is plenty in our ultra-partisan political world.  But one disagreement may soon be put to rest, namely, the validity of Section 5 of the Voting Rights Act of 1965, 42 U.S.C. § 1973(c).

Two petitions stand before the U.S. Supreme Court—Shelby County, Alabama v. Holder and Nix v. Holder—asking the Court to strike down Section 5 as unconstitutional, with another petition likely to follow from Texas’ failed redistricting attempt in Texas v. Holder.
Prior to the enactment of Section 5, subtle methods were implemented in some southern states to suppress the black vote, including literacy tests, poll taxes, “good character” tests, grandfather clauses, and property qualifications.  The Department of Justice was slow to block these measures, and case-by-case litigation became increasingly unwieldy.  As a result, Congress passed the Civil Rights Act of 1965.
Section 5 of the Act requires “covered jurisdictions”—originally Alabama, Georgia, Louisiana, Mississippi, South Carolina, and Virginia—to receive “preclearance” from the Attorney General or a three-federal judge panel in Washington D.C. before instituting any changes to voting laws or procedures.  Preclearance would only be granted “if the change neither ‘has the purpose nor will have the effect of denying or abridging the right to vote on account of race or color.’”  Nw. Austin Mun. Util. Dist. No. One v. Holder, 557 U.S. 193, 198 (2009) (quoting 42 U.S.C. § 1973c(a)).  Covered jurisdictions were those that “used a forbidden test or device in November 1964, and had less than 50% voter registration or turnout in the 1964 Presidential election.”  Id. at 198–99.  But recognizing that this formula “might bring within its sweep governmental units not guilty of any unlawful discriminatory voting practices[,]” id. at 199, Congress afforded innocent jurisdictions the chance to “bailout” from the preclearance requirement.  Shelby County, 679 F. 3d 848, 856 (D.C. Cir. 2012).  Currently, jurisdictions can bailout of the preclearance process if it can show a “clean” voting rights record over the previous ten years.  Id.
Section 5 was originally authorized for only 5 years but was reauthorized in 1970 (for 5 years), 1975 (for 7 years), and 1982 (for 25 years).  With these reauthorizations, the coverage formula was expanded to include a coverage date of 1968 and then eventually 1972.  Moreover, the 1975 amendments expanded the definition of “test or device” to encompass discrimination against “language minorities,” which includes “persons who are American Indian, Asian American, Alaskan Native or of Spanish heritage.”  Florida v. United States, No. CIV.A. 11-1428 MBG, 2012 WL 3538298, at *2 (D.D.C. Aug. 16, 2012).  With this amendment, five Florida counties fell within the grasp of Section 5: Collier County, Hardee County, Hendry County, Hillsborough County, and Monroe County.
In 2006, Congress extended Section 5 for another 25 years until 2032.  In doing so, Congress recognized that the Voting Rights Act has been very effective; but if the Supreme Court’s recent opinion in Northwest Austin Municipal Utility District No. One v. Holder is any indication, Section 5 may soon become a victim of its own success.  In that case, Chief Justice John G. Roberts, Jr., wrote that “[t]hings have changed in the South” and alerted Congress that “[t]he Act’s preclearance requirements and its coverage formula raise serious constitutional questions . . . .”  Ultimately, the Court did not decide the constitutional question, preferring to resolve the case on statutory rather than constitutional grounds.  But in his special concurrence, Justice Clarence Thomas plainly stated that in his opinion, “the lack of current evidence of intentional discrimination with respect to voting renders § 5 unconstitutional.”
If Section 5 is found to be unconstitutional, that will most certainly have an impact on the battle-ground state of Florida, although the impact may be hard to measure.  While Section 5 explicitly does not cover Florida as a whole, Section 5 does apply to Florida to the extent Florida institutes state-wide voting measures that affects its covered counties.  Moreover, Hillsborough County, which is a covered jurisdiction, is the fourth most populous county in Florida—behind Miami-Dade County, Broward County, and Palm Beach County—and has voted for every statewide winner in every presidential race since 1960, save for one.  See Grace Wyler, These Eight Counties will Decide the Presidential Election, Business Insider (Sept. 23, 2012),  No matter one’s background or creed, as a citizen of this great nation, the question of whether to repeal Section 5 implicates the deeper query: “Has my country truly erased its dark history of discrimination?”  Yet regardless of the ultimate impact of Section 5, it may be a question well beyond the U.S. Supreme Court’s scope of review, but it is a question we will ask ourselves nonetheless.
The full version of this article was originally published in CABA Briefs Fall 2012.  To read the full version of this article, click here (