by Sean McMahon
The 2012 election cycle was rife with a new crop of voter suppression measures, designed to reduce the access of minorities, the poor, and limited-English speaking citizens to the polls. Despite these well-documented abuses of the electoral process, advocates have emerged arguing that disenfranchisement of minorities is no longer a major concern and that Section 5 of the Voting Rights Act – the federal government’s bulwark against disenfranchisement – is unconstitutional.
The Supreme Court will decide the fate of Section 5 in Shelby County v. Holder, a case brought by a district in Alabama asserting that Section 5’s requirements violate federalism and equal protection. Section 5 requires jurisdictions with a history of racial discrimination to obtain federal preclearance before changing any voting procedure or regulation. This places the burden on state and local governments that fall under the coverage of Section 5 to justify their new electoral procedures as nondiscriminatory.
In considering whether Section 5 is still necessary today, it is worth reflecting on why such a far-reaching measure was adopted originally. Civil rights leaders understood that limiting access to the polls – even with facially neutral laws – could have a grossly disproportionate impact on minority voters and effectively prevented their participation in the political process. Section 5 is designed to prevent such laws from going into effect and is a major reason the Voting Rights Act has been called “the most effective civil rights law ever enacted.”
Disenfranchisement from the Civil War to the Civil Rights Movement
Following the passage of the Fifteenth Amendment in 1870, all men “regardless of of race, color, or previous condition of servitude” were formally ensured the right to vote. Yet for nearly a century, people of color were disenfranchised via literacy tests, poll taxes, and grandfather clauses. Since generations of slavery and racial inequality rendered people of color far less wealthy and educated than whites, these facially neutral laws effectively disenfranchised many African Americans.
After the formation of the NAACP in 1909, African American leaders pursued a strategy to challenge restrictive voting laws. Despite notable victories in cases such as Guinn v. United States, 238 U.S. 347 (1915) (striking down a grandfather clause in Oklahoma and Maryland) and Smith v. Allwright, 321 U.S. 649 (1944) (striking down whites-only Democratic primaries), racist voter suppression was too pervasive to be defeated by individual lawsuits. Furthermore, it was sometimes difficult to prove the government enacted these laws with discriminatory intent, which was necessary to establish an equal protection violation. Compounding the NAACP’s struggle was the fact that a single case could take years to win.
As the Civil Rights Movement gained ground throughout the 1950s and early 1960s, white supremacist tactics evolved and became subtler. Some jurisdictions implemented new facially neutral voting tests purporting to measure understanding of the issues and the character of the voters. Due to longstanding systemic inequality in education and subjective evaluation of good character, these tests effectively barred African Americans from the polls. Incumbent white politicians further disempowered African American voters by gerrymandering voting districts to weaken the black vote and prevent the formation of majority-black districts. In order to halt this deliberate avoidance of the requirements of the Fifteenth Amendment, Congress enacted Section 5 of the Voting Rights Act to force state and local governments across the South to justify any new electoral rules and procedures.
The Voting Rights Act to Today: Why Section 5 Is Still Needed to Protect Access to the Political Process
Congress renewed the Voting Rights Act in 1982 and again in 2006; both times, it noted the continued importance of Section 5 despite advancements in racial justice. Jurisdictions under Section 5 persist in proposing regulations that restrict minorities’ access to the polls. The number of Section 5 objections (regulations flagged by the Department of Justice as discriminatory) has declined since the 1960s, but the provision has not fallen into disuse. The Lawyers’ Committee’s National Commission on the Voting Rights Act found that between 1965 and 2004, over half of all objections were made after 1982. Surveying data from 1982 to 2004, the Commission found that out of 800 DOJ requests for more information from state and local governments regarding new rule proposals, 205 rule proposals were withdrawn. Columbia law professor Nathaniel Persily notes that this “gives a sense of how many dogs did not bark as a result of the threat of denial of preclearance.”
In this past election cycle, conservative politicians sought new voting rules in order to reduce Democratic voter turnout. Section 5 has been the strongest defense against voter suppression tactics. In the past year, Section 5 prevented the reduction of early-voting hours in some districts in Florida and blocked a voter ID law in Texas. The court that struck down the Texas ID law noted that the required documentation would be enormously burdensome to obtain, and would disproportionately affect minorities and the poor. Recently, federal judges used Section 5 to block a Texas redistricting plan that would have divided a population of African American and Latino voters into new, white-majority districts. Judge Thomas B. Griffith described it as a “deliberate, race-conscious method to manipulate not simply the Democratic vote but, more specifically, the Hispanic vote.”
Jurisdictions under Section 5’s review have complained that it is burdensome and unfair since other jurisdictions do not need to submit to preclearance. However, it is possible to be released from Section 5 preclearance – a jurisdiction simply needs to refrain from proposing a discriminatory electoral law for ten years. Over seventy jurisdictions have successfully done so,and ten jurisdictions in the state of New Hampshire are currently in the process of being released from Section 5 review, which would make it the first entire state to leave Section 5 coverage – though a conservative advocacy group is attempting to block the release as part of a broader strategy to strike down Section 5 as unconstitutional.
Society has changed for the better in the past half-century, and the turnout of minority voters is on the rise. But the amelioration of a problem is not its eradication. Until full and equal participation for people of color in the political process can truly be guaranteed, Section 5 is necessary to enforce their political and civil rights.
Sean is a 2L at NYU and a Staff Editor on the Review of Law & Social Change.