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Last Updated: September 30, 2013

Voting Rights Act: Should the federal government continue to oversee voting practices in some states, as was required by Section 5 of the Voting Rights Act?

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Introduction

SUPPORTERS ARGUE

Though members of minority groups do not face blatant or overt discrimination at the polls as they did in the past, subtle changes to voting procedures continue to threaten minority voting rights. The Voting Rights Act's preclearance requirement deters discriminatory practices, ensuring that African Americans and members of other groups retain their political voice and right to vote. The Supreme Court was wrong to effectively void the Voting Rights Act's preclearance requirement.

OPPONENTS ARGUE

State and local governments have made great strides in eliminating the kind of institutional racism that threatens to disenfranchise minority voters, and the strong-arm tactics of the Voting Rights Act are no longer necessary. Congress has burdened some states and jurisdictions with the preclearance requirement based on outdated data, failing to recognize the progress those states have made in race relations. The Supreme Court was right to strike down part of the Voting Rights Act as unconstitutional.

 

Caro/Kruppa/Newscom

The presidential election of 2016 will determine who controls the White House.

On June 25, 2013, in a 5–4 vote, the Supreme Court struck down a key provision of the Voting Rights Act (VRA), a landmark civil rights law that strove to eradicate discriminatory voting practices in the United States. The nullification of the provision spurred debate over whether minority voters still face disenfranchisement, or whether the United States has moved beyond the institutionalized racial discrimination that marginalized minority voters in previous decades.

Congress passed the VRA in 1965, in the midst of civil rights protests, clashes between activists and police, and criticism over discriminatory voting practices, particularly in the South. Over the next few decades, Congress renewed the legislation several times, most recently reauthorizing it in 2006. The VRA prohibits all states and jurisdictions from enacting discriminatory voting practices and particularly singles out some states, counties, and cities as deserving of special oversight from the federal government because of their poor records on minority voting rights. Section 5 of the act, originally intended as a five-year emergency measure, required those jurisdictions to obtain preclearance—that is, approval—from the U.S. Department of Justice before making any changes to their voting procedures, such as redistricting or altering polling locations and hours.

In 2013, the Supreme Court heard arguments in Shelby County v. Holder, in which Shelby County, Alabama, challenged the preclearance requirement as unconstitutional. In its decision, the Court struck down Section 4 of the VRA—which provided the formula by which Congress determined what jurisdictions were required to obtain permission before changing voting practices—arguing that Congress had relied on outdated data from the 1970s to determine which jurisdictions fell under the requirement when it reauthorized the law in 2006. By nullifying Section 4, which determined criteria used in Section 5, the decision effectively voided Section 5 as well, freeing nine states and dozens of local governments from the preclearance requirement. [See Supreme Court Nullifies Key Provision of Voting Rights Act (sidebar)]

Few observers deny that the emergency measures of the VRA were necessary in 1965, when the systematic disenfranchisement of black Americans sidelined African Americans from the political process throughout much of the South and provoked violent clashes between police and civil rights activists. Today, however, analysts and legislators disagree on whether the preclearance requirement is still necessary.

Asserting that "history did not end in 1965," Chief Justice John Roberts Jr. argued in the Supreme Court's majority opinion that states burdened by the act had made great strides in eliminating racial discrimination in voting practices, and he insisted that Congress must demonstrate that current conditions still necessitate the extraordinary solution of the VRA's preclearance requirement.

Many observers condemned the ruling for effectively gutting the VRA, which they said had successfully protected African Americans' right to vote for decades. Without the preclearance requirement, they warned, state and local governments might once again enact voting policy changes that, while subtle, could lower and marginalize the black vote. Others praised the Court for recognizing that the United States has made great progress in combating institutional racism and labeled the continuing subordination of state electoral practices to federal oversight a wanton violation of states' rights.

In the Shelby decision, the Court allowed that if Congress revised the preclearance formula using more current data, federal restrictions on state and local voting practices could stand. Most political analysts, however, predicted that gridlock in Congress would prevent legislators from agreeing on a new VRA. "[T]he Supreme Court essentially threw down a challenge to Congress to come up with a new rationale for singling out states for special federal scrutiny," Wall Street Journal reporters Neil King and Valerie Bauerlein wrote. "But it is a challenge few expect today's deeply divided Congress to take up amid a heated national debate over fair voting rules, state sovereignty and what constitutes limits to minority voters' rights."

Should the federal government have oversight over the voting practices of some jurisdictions, as the Voting Rights Act originally granted, or has racism in the United States receded to the extent that such extraordinary measures are no longer necessary?

Supporters of the VRA argue that the preclearance requirement has allowed the federal government to prevent many violations of the voting rights of African Americans and members of other minority groups. The Supreme Court's recent decision to invalidate the preclearance formula struck at the heart of the VRA, they argue, and could unleash a series of voting changes that will turn back progress in ensuring that all people have an equal right to vote. Racism is still alive in the United States, albeit in more subtle forms, and the VRA, they insist, must continue to be a strong deterrent to institutional discrimination.

Opponents, on the other hand, argue that the United States has progressed greatly since the civil rights clashes of the 1960s, and that the law should reflect that progress. It no longer makes sense, they argue, to burden some jurisdictions with preclearance requirements when current data shows that they have made great strides in protecting voter equality, and in some cases are outperforming states and jurisdictions not singled out by the VRA. It is an unconstitutional violation of states' rights, they insist, to punish current local and state governments for sins committed decades ago.

The Passage of the Voting Rights Act

During the early years of the nation's history, states determined who was eligible to vote, and, because of deeply ingrained bigotry throughout the country, most states barred African Americans from the political process. Indeed, before the Civil War (1861–65), only five states—Maine, Massachusetts, New Hampshire, Rhode Island, and Vermont—permitted blacks to vote.

After the Civil War and the abolition of slavery in 1865, southern governments adopted legislation restricting the rights of newly emancipated slaves. In response, the federal government moved to protect the civil rights of African Americans. In 1866, Congress, dominated by the Republican Party, passed the Civil Rights Act, the first national law guaranteeing citizenship for blacks and legal rights for all Americans. Two years later, in 1868, the Fourteenth Amendment to the Constitution was ratified, granting citizenship to all individuals born in the United States, including emancipated slaves, and "equal protection of the laws" to all citizens.

In 1870, states ratified the Fifteenth Amendment to the Constitution. Unlike the Civil Rights Act of 1866 and the Fourteenth Amendment, which had not explicitly barred racial discrimination in voting practices, the Fifteenth Amendment stated: "The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude. The Congress shall have the power to enforce this article by appropriate legislation." Congress had debated adding more specific restrictions to the Fifteenth Amendment, such as explicit prohibitions on literacy tests or property requirements for voting, but abandoned those restrictions in the face of resistance from state lawmakers. 

As a result of these measures, African Americans entered the political process. Eight blacks were elected to Congress during Reconstruction—the period following the Civil War—and many more to Southern state legislatures. Whites who opposed black political participation formed white supremacist groups, such as the Klu Klux Klan, to violently intimidate blacks from voting or running for office.

Federal efforts to enforce civil rights declined in the 1870s after federal troops withdrew from the South in 1877, ending reconstruction. Southern state legislatures adopted "Jim Crow" laws that segregated the races in education, transportation, and other aspects of public life, and treated African Americans as second-class citizens. These laws also attempted to sidestep the Fifteenth Amendment by instituting barriers to keep African Americans from the polls.

Such barriers included poll taxes, literacy tests, and "grandfather clauses." Although such measures technically applied equally to blacks and whites, they were intended specifically to keep blacks from voting. The measures that authorized literacy tests, for example, were vaguely written so that election officials could choose to pass whites while failing blacks, regardless of their actual performance. Grandfather clauses exempted voters from eligibility tests if their ancestors were eligible to vote prior to 1867. In practice, this was a requirement most African Americans at the time could not meet, since they were descended from slaves. Election officials also employed redistricting to ensure that blacks would vote in areas where their votes would matter the least.

As a consequence of all of these measures, the voter registration rates of African American voters throughout much of the South dropped precipitously in the late 1800s. In Mississippi, for example, black registration dropped from 70 percent in 1867 to just 9 percent at the turn of the century. In Louisiana, the number of blacks registered to vote fell from 130,334 in 1896 to 1,342 in 1904. The few blacks who did manage to register to vote often encountered violence and intimidation, including loss of their jobs or eviction from their homes.

In 1909, scholar and activist W. E. B. Du Bois and others founded the National Association for the Advancement of Colored People (NAACP), an organization that would play a leading role in the campaign for voting rights. The NAACP filed legal challenges against many voting laws, including one in Texas, where the Democratic Party barred African Americans from voting in the party's primary elections. In 1944, the U.S. Supreme Court overturned this racial restriction in Smith v. Allwight, ruling that the measure violated the Fifteenth Amendment.

As the civil rights movement demanding equal treatment for blacks gained momentum in the 1950s and early 1960s, Congress passed several laws, including the Civil Rights Acts of 1957 and 1960, that attempted to address voter disenfranchisement. These were the first civil rights laws Congress had passed since 1866, but they had been so diluted by the time Congress passed them that they were largely symbolic. According to political scientist Bernard Grofman and sociologist Chandler Davidson, these laws were "tentative piecemeal efforts that failed to breach the barriers maintained by southern white supremacists.… The burden remained on black voters to seek relief in the courts case by case, a time-consuming and extremely inefficient process."

In 1963, President John F. Kennedy (D, 1961–63), who had supported federal attempts to desegregate the South and protect the voting rights of African Americans, was assassinated. His successor, President Lyndon Johnson (D, 1963–69) pledged to pass many of Kennedy's initiatives, including civil rights laws.

In 1964, Congress passed the landmark Civil Rights Act. The law prohibited discrimination on the basis of race, color, sex, religion, or national origin in schools, restaurants, hotels, and other public facilities throughout the United States. Outlawing segregation and all Jim Crow laws, the Civil Rights Act of 1964 also allowed the federal government to sue jurisdictions not complying with these regulations. Although the Civil Rights Act included some provisions intended to address voter disenfranchisement, it did not confront that issue head on. The law had been passed with great difficulty in the face of ardent opposition from southern Democrats and many Republicans; its enactment was often attributed to President Johnson's political skill. Also in 1964, the states ratified the Twenty-fourth Amendment to the U.S. Constitution, which abolished poll taxes.

Despite the passage of the Civil Rights Act and the ratification of the Twenty-fourth Amendment, the struggle for voting equality continued. For years, civil rights groups had mounted grassroots campaigns against voter discrimination, despite violent intimidation from southern whites and local officials. In the summer of 1964, the Student Nonviolent Coordinating Committee (SNCC), one of the main civil rights groups of the time, launched a voter canvassing effort in Mississippi. The campaign prompted a backlash from white supremacists who murdered three civil rights workers and launched a series of beatings, bombings, and arson attacks intended to intimidate activists and black voters. The violence drew national attention to the voting rights issue throughout the summer.

In 1965, SNCC launched a voter registration campaign in Selma, Alabama, a city with an egregious record of discriminatory voting practices. Soon, peaceful demonstrations in the town prompted violence from racist right-wing groups, town police, and state troopers. Civil rights leader Martin Luther King Jr. was arrested during the unrest, as he had been many times in the nonviolent campaign for equal rights. Across America, voters saw footage of the demonstrations and the violent responses on nightly news, and many condemned the police brutality.

In the late winter of 1965, SNCC chairman John Lewis and other civil rights leaders organized a 54-mile march on behalf of voting rights from Selma to the state capital of Montgomery. Despite warnings from Alabama Governor George Wallace (D), the protesters were determined to proceed. On Sunday, March 7, they crossed the Edmund Pettus Bridge, where state and local police ordered them to stop. When protesters refused to retreat, troopers attacked them with clubs and tear gas, injuring dozens, including Lewis, whose skull was fractured. The clash became known as "Bloody Sunday" and received wide coverage. The incident energized political momentum for a strong legislative solution to the voting problem.

On March 15, President Johnson delivered a speech to Congress and presented a bill to enforce African Americans' right to vote. "Their cause must be our cause too," Johnson said. "Because it's not just Negroes, but really it's all of us who must overcome the crippling legacy of bigotry and injustice." President Johnson ended the speech with the words, "We shall overcome"—the rallying cry of the civil rights movement. That summer, Congress, largely splitting along regional lines, approved the bill. On August 6, 1965, President Johnson signed the Voting Rights Act (VRA) into law, a moment that he would later say was the greatest of his presidency.

The Voting Rights Act, according to one of its sponsors, Representative Emanuel Celler (D, New York), was intended to eliminate the "legal dodges and subterfuges" that the Fifteenth Amendment had failed to prevent. The law contained both general and emergency provisions. The general provisions applied equally and permanently to all states and jurisdictions across the country. Among the legislation's most important general provisions was the assertion that "no voting qualification or prerequisite to voting, or standard, practice, or procedure shall be imposed or applied by any State or political subdivision to deny or abridge the right of any citizen of the United States to vote on account of race or color."

Other provisions, deemed emergency or temporary requirements, applied only to some states and jurisdictions. Most notably, Section 5 of the VRA required nine states—Alabama, Alaska, Arizona, Georgia, Louisiana, Mississippi, South Carolina, Texas, and Virginia—along with dozens of towns and counties in several other states to obtain permission, or preclearance, from the Justice Department before making any change to voting practices, such as redistricting, changing the hours and locations of polling places, or enacting voter identification laws.

To decide which jurisdictions required preclearance, Congress devised a formula explained in Section 4 of the VRA. The formula used characteristics such as the presence of a literacy test or low voter registration and turnout rates to decide which states needed federal oversight. States in which less than half of the voting age population was registered or had voted in the 1964 presidential election, for example, needed to obtain preclearance. The VRA allowed these state and local governments to apply to "bail out" of the law if they could demonstrate in front of a three-judge panel that they had not employed or tried to employ a discriminatory voting measure for ten years. The preclearance requirement was originally meant to last only five years, but Congress renewed it along with the rest of the VRA, in 1970, 1975, and 1982. It renewed it again in 2006 for 25 more years.

Opponents of the VRA argued that it was unconstitutional, pointing out that the Constitution states that "the times, places and manner of holding elections for Senators and Representatives, shall be prescribed in each state by the legislature thereof." Supporters of the law, however, argued that the Fifteenth Amendment, which states that the rights of all citizens to vote cannot be violated, overrode the states' rights as detailed in the Constitution.

In 1966, the Supreme Court upheld the VRA in South Carolina v. Katzenbach, finding that though the act was "strong medicine," the preclearance and other provisions were "an appropriate means for carrying out Congress' constitutional responsibilities" to uphold citizens' right to vote. One reason, the majority decision observed, was that the Justice Department's previous strategy of challenging voting practices after they had been implemented was ineffective in the face of the constant adoption of new discriminatory practices.

The VRA had a clear and immediate impact on voting registration in the months, years, and decades following its passage. Within six months of its enactment, more than 300,000 African Americans registered to vote in southern states, and by 1970 the number of elected black officials had increased tenfold.

Under Section 5 of the VRA, there were two ways a state or local jurisdiction could apply to make a change in voting procedure. The first method was by submitting the change to the Civil Rights Division of the Justice Department. If the attorney general made no objection to the change within 60 days, the change could take effect. According to the Justice Department, more than 99 percent of voting changes were handled in this fashion; since the enactment of Section 5, the attorney general objected to only about one percent of the changes submitted.

The VRA also allowed state and local governments to submit a voting change for judicial review. The state would have to prove before a panel of three judges in Washington, D.C., that the proposed change "does not have the purpose and will not have the effect of denying or abridging the right to vote on account of race or color." A representative from the Justice Department would be able to argue against the motion. On appeal, the case would go to the U.S. Supreme Court.

Issues and Controversies: Public Opinion on Supreme Court's Voting Rights Act Decision (Graph)

Court Strikes Down Preclearance Requirement

After months of hearings and research into the status of discriminatory voting practices in the United States, Congress renewed the Voting Rights Act (VRA) with bipartisan support in 2006. Though white and black voter registration were nearly equal at the time, legislators found that 40 years of implementing the VRA had not been sufficient time, according to the text of the law, "to eliminate the vestiges of discrimination following nearly 100 years of disregard for the dictates of the 15th Amendment." Legislators used the same preclearance formula used in the 1975 reauthorization of the act, which had been based on data gathered in 1972. The 2006 reauthorization of the VRA passed in the Senate by a 98–0 vote and in the House by a vote of 390–33. Nevertheless, representatives from some southern states argued that the preclearance provision of the law had become outdated and served no purpose in the 21st century other than to punish states with histories of voting discrimination.

In 2009, Barack Obama (D) became the first African-American president, a historic event that prompted a national conversation about race relations in the United States. Some observers maintained that the election of a black president proved that the United States had moved beyond the institutional racism that had marked much of its past; the United States, they claimed, no longer needed civil rights legislation such as the VRA. Others argued that, without the help of legislation such as the VRA, the election of black legislators, let alone a black president, would have been very unlikely, even in 2008.

In 2009, the Supreme Court upheld the Voting Rights Act's Section 5 for the fifth time, in Northwest Austin Municipal Utility District Number One v. Holder. The plaintiff in the case, a 3,500-person district outside Austin, Texas, argued that Congress's 2006 renewal of the preclearance requirement was unconstitutional. The Court upheld the legislation in an 8–1 vote, but issued a narrow ruling that sidestepped the fundamental question of whether Section 5 was constitutional.

In his majority opinion, Chief Justice John Roberts Jr. questioned the continuing applicability of the act, writing that the "statute's coverage formula is based on data that is now more than 35 years old, and there is considerable evidence that it fails to account for current political conditions." Analysts took that criticism as a warning that if Congress failed to update the preclearance formula, justices could well strike down Section 5 of the Voting Rights Act as unconstitutional if the matter appeared before the Supreme Court again. Justice Clarence Thomas, the lone dissent, argued that the "violence, intimidation and subterfuge that led Congress to pass Section 5 and this court to uphold it no longer remains."

Allegations of racial discrimination cropped up in the year preceding the 2012 presidential election, when several states enacted or tried to enact voting laws that, according to critics, attempted to disenfranchise minority and poor voters. In 2011, several states adopted laws that required voters to present photo identification before they voted. While supporters argued that such measures were necessary to prevent voter fraud, opponents noted that instances of voter fraud were negligible, and critics also warned that such statutes would discriminate against voters who tend to lack photo identification, including the indigent, elderly, and members of minority groups. Courts in several states struck voter ID laws down as unconstitutional.

In states where it had authority under the VRA, such as South Carolina and Texas, the Justice Department used Section 5 of the act to fight voter ID laws it deemed discriminatory. In 2011, for example, the Department struck down a voter ID law and a redistricting plan passed by the Texas state legislature on the grounds that it would have diluted the political impact of African American and Latino voters. Texas sued the Justice Department over its decision, but in August 2012, the U.S. District Court in Washington, D.C. sided with the federal government.

In Shelby County v. Holder, Shelby County, Alabama, challenged Section 5 of the VRA, arguing that it was an outdated and unconstitutional violation of states' rights. In May 2012, a three-judge panel of the U.S. Court of Appeals for the Washington, D.C., Circuit Court ruled 2–1 to uphold the provision, but noted that "the extraordinary federalism costs imposed by Section 5 raised substantial constitutional concerns." Shelby County appealed the ruling, and the Supreme Court heard oral arguments in the case in February 2013. At the time, Shelby County was still covered by the preclearance formula of Section 5. When it submitted a redistricting plan for the town of Calera that threatened to remove the only elected black official from the city council by moving him to another district, the Justice Department rejected the plan.

On June 25, 2013, the Supreme Court issued a 5–4 decision striking down Section 4 of the Voting Rights Act. In the majority opinion, Chief Justice Roberts ruled that it was unfair for Congress to single out some states and jurisdictions based on decades-old data. "If [Congress] is to divide the States," he wrote, it "must identify those jurisdictions to be singled out on a basis that makes sense in light of current conditions." Race relations in the United States, he added, had greatly improved since the civil rights era; Congress had conceived the preclearance requirement, he noted, only as an emergency measure to stop the systematic disenfranchisement of black Americans. No evidence gathered by congressional hearings and research during the debate over the 2006 renewal, the chief justice continued, demonstrated "anything approaching the 'pervasive,' 'flagrant,' 'widespread,' and 'rampant' discrimination the Congress attempted to combat in 1965." Significant increases in voter registration, turnout, and the election of black officials, Roberts concluded, were proof that the federal usurpation of state electoral power was no longer necessary.

Referring to his warning to Congress in Northwest Austin Municipal four years earlier, Roberts wrote that Congress could have updated its preclearance formula when it renewed the VRA in 2006 renewal, but did not. "Its failure to act leaves us today with no choice but to declare [Section 4] unconstitutional," Roberts wrote.

The Court did not, however, rule Section 5 unconstitutional, meaning that, if the preclearance formula were updated, the preclearance itself would be permitted under the Constitution. In a concurring opinion, however, Justice Thomas argued that the Court should have struck down Section 5 in addition to Section 4, invalidating the preclearance requirement altogether.

In a dissent read aloud from the bench—a sign of vehement disagreement—Justice Ruth Bader Ginsburg chided the majority for overturning part of a law that had passed with overwhelming support from both major parties. Ginsburg argued that the powers granted by the VRA to secure voting rights were appropriate considering Congress's great responsibility to enforce the Fifteenth Amendment to the Constitution, and she noted several recent instances of discriminatory voting practices successfully checked by the preclearance requirement. Civil rights activists and Democratic legislators also criticized the ruling. President Obama said he was "deeply disappointed" by the decision, and Attorney General Eric Holder called the ruling "a serious setback for voting rights." [See Justice Ginsburg Blasts Majority Opinion in Voting Rights Act Case (sidebar)]

Because the Court refrained from declaring preclearance itself unconstitutional—only the formula on which it was based—Congress could revive Section 5 by updating the formula used to decide which districts require preclearance. Though some Democratic legislators vowed to work to revise the VRA in a way the Court would accept, analysts questioned whether Congress, which has been gridlocked in recent years, had the political will to work out a compromise.

Though the Court's ruling in Shelby effectively voided the preclearance requirement, the Voting Rights Act's comprehensive prohibition of racial discrimination in voting practices still stands. Under Section 2 of the law, plaintiffs can still legally challenge voting changes they deem discriminatory. Analysts noted, however, that this was a more time-consuming process, shifting the burden of proof from the jurisdiction in question to plaintiffs, and allowing elections to continue while such legal battles play out. Furthermore, Section 3 of the VRA contains a "bail-in" provision, which allows the federal government to ask a court to put a state or county under the preclearance; since Section 5 was not overturned by the Supreme Court, it is possible the government could still use this provision to hold certain jurisdictions to the preclearance requirement.

The Shelby decision had immediate repercussions in some states. Two hours after the Supreme Court issued its ruling, Texas attorney general Greg Abbott announced that his state would enact a voter identification law that had been challenged by the Justice Department and would also likely go ahead with redistricting plans. Additionally, both Mississippi and Alabama announced they would implement voter identification laws that had passed through their state legislatures but had failed to receive Justice Department approval. On July 25, Attorney General Eric Holder announced that the Justice Department would ask a court to reinstate Texas's preclearance requirement using Section 3 of the Voting Rights Act. Texas governor Rick Perry (R), however, said that Holder's move "casts unfair aspersions on our state's common-sense efforts to preserve the integrity of our elections process."

Issues and Controversies: States and Districts Affected by Voting Rights Act Preclearance Requirement (Map)

Supporters Argue: Voting Rights Act Preclearance Requirement Must Stay

Supporters of the Voting Rights Act praise the law as an essential bulwark against voter disenfranchisement and criticize the Supreme Court's 2013 ruling in Shelby that invalidated the VRA's Section 4 as an invitation for discrimination. "This decision," House Minority Leader Representative Nancy Pelosi (D, California) asserted, "weakens the cause of voting rights in our time, disregards the challenges of discrimination still facing our country, and undermines our nation's ongoing effort to protect the promise of equality in our laws."

By invalidating part of the VRA, supporters of the law argue, the Supreme Court has done a disservice to the people who fought and died to secure their right to vote. "In a democracy such as ours, the vote is precious. It is almost sacred," Representative John Lewis (D, Georgia), a veteran of the civil rights movement who was severely injured in the 1965 "Bloody Sunday" march in Selma, Alabama, said after the Court's decision in June 2013. "Those who have sacrificed everything—their blood and their lives—and generations yet unborn, are all hoping and praying that Congress will rise to the challenge and get it done again." Lewis also cited recent attempts to minimize the black vote, such as voter ID laws, arguing that "the Voting Rights Act is needed now like never before."

Prime examples of the need for a strong Voting Rights Act, supporters argue, were clearly apparent during the last presidential campaign. "The 2012 election proved that the Voting Rights Act is still our nation's first and best defense against efforts to disenfranchise American voters," Elizabeth Wydra of the Constitutional Accountability Center argued in a 2013 New York Times article. "In the run-up to the 2012 election, state and local officials attempted to put in place restrictive voter ID laws, shorten early voting hours and make it more difficult to register to vote. These restrictions would have had the greatest impact on young, minority, elderly and poor voters. Fortunately, some of the worst of these restrictions…were blocked under the Voting Rights Act."

Section 5 of the VRA, supporters argue, is a powerful deterrent against discrimination. "[T]he true value of Section 5 is not captured by the number of objections made by the Department of Justice or the federal courts," Stanford University Law School professor Pamela Karlan contended in 2009. "Its value comes largely from the changes that it deters from being attempted in the first place. Covered jurisdictions that know the federal government will deny preclearance often abandon discriminatory plans."

Supporters argue that Section 5 of the VRA had a proven track record. "[T]hrowing out preclearance when it has worked and is continuing to work to stop discriminatory changes is like throwing away your umbrella in a rainstorm because you are not getting wet," Supreme Court Justice Ruth Bader Ginsburg wrote in her dissenting opinion in Shelby. She added that "if the statute was working, there would be less evidence of discrimination, so opponents might argue that Congress should not be allowed to renew the statute. In contrast, if the statute was not working, there would be plenty of evidence of discrimination, but scant reason to renew a failed regulatory regime."

Advocates of the Voting Rights Act emphasize that its bailout provision, which allowed state and local governments to apply for exemptions from Section 5, already provided enough protection for jurisdictions wishing to avoid the preclearance requirement. "All Shelby County, Ala., had to do and the state of Alabama has to do is not discriminate against racial minorities in voting for 10 years," Sherrilyn Ifill, president of the NAACP's Legal Defense and Education Fund, argued. That requirement, supporters argue, should not be overly burdensome.

Advocates note that Congress has specific constitutional authority to protect the right to vote. "Judicial second-guessing of Congress is especially inappropriate in the voting rights context," a Los Angeles Times editorial argued, noting that the Fifteenth Amendment empowers legislators to enforce voting rights. "In extending Section 5 of the Voting Rights Act [in 2006], Congress exercised its authority by huge majorities—majorities that included representatives and senators from states subject to preclearance. There is no reason for the court to substitute its own judgment about how best to secure voting rights in the 21st century."

The invalidation of Section 4, supporters worry, will have detrimental repercussions for members of other minority groups, in addition to African Americans. "Community organizers report that many Latino citizens stay home rather than risk being bullied, politically hounded or arrested if they try to vote," Columbia University political science professor Rodolfo de la Garza wrote in the New York Times. "Without Section 5's threat of federal intervention, I fear that the promise of Latino political equality will stagnate."

Opponents Argue: Voting Rights Act Preclearance Requirement Outdated

Opponents of the Voting Rights Act hail the Supreme Court's 2013 decision in Shelby County v. Holder as a recognition that the United States has moved beyond the violent racial fragmentation and discrimination of its past. "The political left is reacting as if this means a return to Jim Crow," a Wall Street Journal editorial argued in the wake of the June 2013 ruling. "[B]ut the ruling is best understood as a sign of the racial progress that progressives claim to believe in."

Voting data, opponents contend, show that the VRA is no longer necessary. "The proof is that black and white voter registration and turnout are nearly even in the 'covered' states and districts," the Wall Street Journal argued. "By 2009, the racial voting gap was lower in preclearance states than in the rest of the country." Section 4 of the VRA, opponents claim, burdened states like Mississippi, where black citizens vote in higher percentages than white citizens, while leaving Massachusetts, the state with the largest gaps in voter turnout between whites and blacks, free of preclearance.

Opponents of the Voting Rights Act celebrated the Supreme Court's recognition that Congress was relying on outdated data to pick which states and jurisdictions to burden with the preclearance requirement. "If you're imposing on sovereign states and cities and counties this burden—this extraordinary burden," Frank Ellis Jr., the lead attorney for Shelby County in the case, argued, "you've got to have current justification, not justification that's 50 years old."

Times have changed, opponents claim, and the Voting Rights Act is an unfair burden on governments that share no connection to the egregious racism and violations of the Jim Crow South. "Section 5 was supposed to be a short-term, emergency measure. It was constitutional when it prevented Southern officials from openly defying the Constitution in 1965," Alabama attorney general Luther Strange wrote in a 2013 USA Today editorial. "But the question before the Supreme Court is whether Congress had power, in 2006, to extend this measure for 25 more years. The answer is no. Congress could not conclude that a generation of people with no connection to the tragic events of the 1960s would be untrustworthy until 2031."

Critics argue that legislators have used the Voting Rights Act in ways that actually harm minorities and encourage political estrangement between races. Arguing that the VRA "has had corrosive unintended consequences including, ironically, greater political polarization along racial lines," Washington Post editorialist Charles Lane wrote:

[T]he act all but requires covered jurisdictions to maximize the concentration of African American and other minority voters in legislative districts. In theory, this enables minorities to elect candidates "of their choice." In practice, it divides many states into a small number of majority-black districts, which usually pick liberal African American Democrats, and a larger number of overwhelmingly white districts, which choose conservative white Republicans. Moderates get squeezed out.

In the long term, critics argue, such policies can limit black political potential. "The creation of safe minority districts puts a floor under the number of blacks elected but also, arguably, a ceiling over how high they rise," Lane contended. "In the South, the message and ideology that win in a majority-minority district [i.e., a district with a majority of blacks] rarely work at the (majority-white) statewide level."

The preclearance requirement, opponents contend, undermined equality among the states. "The Supreme Court's decision to strike down Section 4 of the 1965 Voting Rights Act restores a fundamental constitutional order that America's laws must apply uniformly to each state and jurisdiction," insisted Edward Blum, director of the Project on Fair Representation, a legal defense group that helped Shelby County in its challenge to the VRA, argued after the decision. "All 50 states are entitled to equal dignity and sovereignty under the law."

Critics denounce supporters' claims that the invalidation of the Voting Rights Act will lead to the resurrection of institutional racism. "Are southern white voters still so racist that no black candidate standing before them stands a chance of receiving their votes?" Abigail Thernstrom of the conservative think tank the American Enterprise Institute wrote in 2009. "If Section 5 of the Voting Rights Act were stripped away, would Jim Crow rise again? No. America is a changed nation today in every respect—politically, socially, culturally, and demographically."

Updating the Voting Rights Act

After the Supreme Court struck down a vital part of the Voting Rights Act on June 25, 2013, President Obama urged legislators to pass a new version of the law. "[T]oday's decision…doesn't represent the end of our efforts to end voting discrimination," he said. "I am calling on Congress to pass legislation to ensure every American has equal access to the polls."

Members of both parties, however, have expressed doubt over Congress's ability to create a new preclearance formula. "As long as Republicans have a majority in the House and Democrats don't have 60 votes in the Senate," Senator Charles Schumer (D, New York) said, "there will be no preclearance." Similarly, Senator Bob Corker (R, Tennessee) has said, "I just cannot imagine…Congress ever coming to terms with what they could agree on." For Congress to address the VRA, Corker noted, would entail some lawmakers essentially implying that other lawmakers are racist, or represent racist constituents. "[O]ne group of folks would have to be saying another group of folks have some tendencies in a direction that are not good," Corker told the Huffington Post in 2013. "I don't know that in 2013 I see that happening." Still, some maintain hope that Congress could enact a new version of the VRA that could pass constitutional muster. Representative James Sensenbrenner (R, Wisconsin), a longtime conservative, has argued that it is imperative for both parties to work together to revive the law.

Voters and political organizations, meanwhile, will continue to challenge restrictive voting practices in court, and Attorney General Holder has vowed to use other sections of the VRA to prevent electoral changes that could disenfranchise voters. Many analysts question, however, whether litigation alone can effectively protect minority voting rights. Whether Congress will consider new legislation on this subject remains to be seen.

Bibliography

Blow, Charles. "Vulnerability of the Vote." New York Times, February 27, 2013, www.nytimes.com.

Blum, Edward. "Voting Rights at the High Court." Weekly Standard, April 28, 2009, www.weeklystandard.com.

Cass, Connie. "A Look at 48 Years of the Voting Rights Act." Salon, June 26, 2013, www.salon.com.

De la Garza, Rodolfo. "A Voice for Latino Voters." New York Times, February 24, 2013, www.nytimes.com.

Grofman, Bernard, and Chandler Davidson. "Controversies in Minority Voting: The Voting Rights Act in Perspective." Brookings Institution, 1992, www.brookings.edu.

"Judging the Voting Rights Act." Los Angeles Times, February 26, 2013, www.latimes.com.

King, Neil, and Valerie Bauerlein. "Congress Unlikely to Pass New Vote-Oversight Formula." Wall Street Journal, June 25, 2013, online.wsj.com.

Lane, Charles. "Supreme Court Ruling May Lead to Retuning of the Voting Rights Act." Washington Post, June 24, 2013, www.washingtonpost.com.

Liptak, Adam. "Supreme Court Invalidates Key Part of Voting Rights Act." New York Times, June 25, 2013, www.nytimes.com.

Lithwick, Dahlia. "How Can Rights Feel So Wrong? The Supreme Court Takes Aim at the Voting Rights Act." Slate, April 29, 2009, www.slate.com.

Mann, Thomas, and Raffaela Wakeman. "Voting Rights After Shelby County v. Holder." Brookings Institution, June 25, 2013, www.brookings.edu.

Murphy, Tim. "Supreme Court: The Voting Rights Act Worked—So Now It's Unconstitutional." Mother Jones, June 25, 2013, www.motherjones.com.

"The Roberts Court Casts Aside Judicial Restraint on Voting Rights Act Case." Washington Post, June 25, 2013, www.washingtonpost.com.

Strange, Luther. "Section 5 Is Unconstitutional: Opposing View." USA Today, February 25, 2013, www.usatoday.com.

Sullivan, Sean. "Why the Supreme Court's Voting Rights Act Decision Puts Obama in a Tough Spot." Washington Post, June 26, 2013, www.washingtonpost.com.

Taranto, James. "Three at Last." Wall Street Journal, June 26, 2013, online.wsj.com.

Thernstrom, Abigail. "A Vindication of the Voting Rights Act." Wall Street Journal, June 26, 2013, online.wsj.com.

"Times Have Changed, But Bias at the Polls Remains." USA Today, February 26, 2013, www.usatoday.com.

"Voting Rights Progress." Wall Street Journal, June 25, 2013, online.wsj.com.

Wydra, Elizabeth. "2012 Showed Us the Law Is Still Needed." New York Times, February 24, 2013, www.nytimes.com.

Additional Sources

Additional information about the Voting Rights Act can be found in the following sources:

May, Gary. Bending Toward Justice: The Voting Rights Act and the Transformation of American Democracy. New York: Basic Books, 2013.

Thernstrom, Abigail. Voting Rights—And Wrongs: The Elusive Quest for Racially Fair Elections. Washington, D.C.: American Enterprise Institute Press, 2009.

Contact Information

Information on how to contact organizations that either are mentioned in the discussion of the Voting Rights Act or can provide additional information on the subject is listed below:

National Association for the Advancement of Colored People (NAACP)
4805 Mt. Hope Dr.
Baltimore, Md. 21215
Telephone: (410) 580-5777
Internet: www.naacp.org

The Project on Fair Representation
109 North Henry St.
Alexandria, Va. 22314
Telephone: (703) 505-1922
Internet: www.projectonfairrepresentation.org

U.S. Department of Justice
950 Pennsylvania Ave. N.W.
Washington, D.C. 20530-0001
Phone: (202) 514-2000
Internet: www.justice.gov

Keywords

For further information about the ongoing debate over the Voting Rights Act, search for the following words and terms in electronic databases and other publications:

Bloody Sunday 1965
Northwest Austin Municipal Utility District Number One v. Holder
Preclearance requirement
Section 4 of the Voting Rights Act
Shelby County v. Holder

Citation Information

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