April 30, 2009
By Hans A. von Spakovsky
Today, in Washington, Justice Department lawyers will tell the
Supreme Court that the South is still so permeated with racism that
it cannot be trusted to run its elections without prior approval --
from Justice Department lawyers. On those dubious grounds, they
will urge the Court to uphold Section 5 of the LBJ-era Voting
rights Act -- a "temporary/emergency" provision that is now 44
The case is Northwest Austin Municipal Utility District
Number One v.Holder. Lawyers for the district, population
about 3,500, will argue that Congress's 2006 renewal of Section 5
was unconstitutional; and if the justices base their decision
purely on the law and the applicable facts, they will agree. But
race is the eternal third rail of politics in Washington, and the
reaction to a finding that any portion of the Voting rights Act is
unconstitutional would be so fierce that the Court may shy away
from doing what it should.
The 1965 Voting rights Act contains two important, but
distinctly different, provisions. Section 2 prohibits the denial of
voting rights based on "race or color." It's a permanent,
nationwide provision. Section 5, however, was supposedly a
temporary measure that applied only to a small number of states
(most of them in the South). It provided that, if those covered
states wanted to enact any law that affected voting
in any way, they would have to get approval from the Justice
Department's Civil rights Division (or a federal court in
Washington, D.C.) before the law could take effect. Initially in
force for five years, Section 5 was renewed in 1970, 1975, 1982 and
then, in 2006, for another 25 years.
There's no question that Section 5 was legal and necessary in
1965, a time of fire hoses, police dogs, and bullhorns. Some state
and local governments were still systematically trying to prevent
blacks from voting, and they were creative in devising new ways to
discriminate. Section 5 effectively prevented these states and
localities from passing new legislation intended to get around
federal law and court orders.
To identify jurisdictions that would need to get their laws
pre-approved, Congress designed a formula: The jurisdiction must
have had a "test or device" (like a literacy test, or an
examination to certify "good moral character") that denied voting
rights, and have had less than 50 percent registration or turnout
in the 1964 election. As Section 5 was successively renewed, the
latter requirement was updated to reflect registration and turnout
rates in the 1968 and 1972 elections, but it has not been updated
This means that the nine fully covered states, and certain
specified localities in seven other states, still labor under
strict pre-approval requirements based on decades-old voting data.
In 2006 Congress refused to update the formula to reflect current
registration and turnout data. If it had, almost none of these
jurisdictions would have been covered. Turnout of black voters
equals or surpasses that of white voters in many of the covered
states, clear evidence that the "temporary/emergency" measure is no
longer needed and the widespread discrimination of 1965 is long
Race relations have changed dramatically in the last two
generations, especially in the South. In 1965 black elected
officials were virtually unknown in the covered states; today they
number in the thousands. In covered states such as Alabama,
Florida, Georgia, Louisiana, Mississippi, and South Carolina, 31 to
45 percent of Democratic state legislators are black. Of the ten
states with the largest number of black elected officials in 2001,
eight -- Mississippi, Alabama, Louisiana, Georgia, South Carolina,
North Carolina, Texas, and Michigan -- are covered fully or partly
under Section 5.
Over the years, objections to state election-law changes have
dwindled. The Civil rights Division receives thousands of
submissions -- such as measures to open new polling places -- every
year. Since 1965, the division has objected to only 1 percent of
all submissions. In the past ten years, the objections have run
about 0.2 percent.
Such a low rate can hardly justify continuing the extensive
intrusion into a state's lawmaking ability, particularly when you
consider the dubiousness of many of the division's objections: In
case after case, courts have overturned the positions taken by the
Civil rights Division.
What makes the situation even worse is that Section 5 reverses
the usual standard that requires the federal government to prove
discrimination. Instead, the submitting jurisdiction must prove
that its proposed change would not have a
discriminatory effect. That's a very tough standard that can be
made even tougher by opposition from partisan career lawyers at the
Civil rights Division. Too often they use Section 5 to try to stop
laws (for example, ones requiring voters to show ID) that they find
politically objectionable, while ignoring applicable legal
standards. Most covered jurisdictions don't have the resources to
fight the Civil rights Division, even when it is clearly in the
That is why organizations that serve minority groups love
Section 5. Unlike with Section 2, they don't have to prove a case
in court to stop redistricting plans or other legislation they
don't like; they just call their friends and former colleagues at
the Civil rights Division and tell them to object. More than one
court decision has noted the embarrassing and highly unethical
coordination between the Civil rights Division and such outside
Based on any reasonable statistical measure, the difference in
voter participation between covered and uncovered states has
disappeared. The "legislative record" developed by Congress in 2006
deliberately stayed away from exploring the differences in minority
office-holding rates and voter turnout between covered and
noncovered states -- because doing so would have shown there was no
basis for extending the law. Even the relatively small number of
voting-discrimination cases filed under Section 2 show the exact
opposite of what the proponents of Section 5 would like: More
Section 2 cases are filed in states that are not
covered under Section 5.
No one can truthfully assert that state governments in Virginia
and Georgia are still racist and full of defiant government
officials, particularly when compared with noncovered neighboring
states such as Pennsylvania and Tennessee. There is no difference
that justifies such an intrusive and extraordinary law.
Given all these developments, it should be easy for the Supreme
Court to make the right decision on this case. A renewal based on
40-year-old evidence that studiously ignored seismic changes in our
society, elections, and democratic institutions should not
But, afraid of being labeled racist, a cowardly Congress renewed
Section 5 just three years ago. Let's hope the justices have the
courage to do what Congress did not: consider the applicable facts
and law, and do the right thing.
A. von Spakovsky is a visiting legal scholar at the
Heritage Foundation. He is also a former commissioner on the
Federal Election Commission and counsel to the assistant attorney
general for civil rights at the Department of Justice.
First Appeared in National Review Online
Today, in Washington, Justice Department lawyers will tell the Supreme Court that the South is still so permeated with racism that it cannot be trusted to run its elections without prior approval - from Justice Department lawyers. On those dubious grounds, they will urge the Court to uphold Section 5 of the LBJ-era Voting Rights Act - a "temporary/emergency" provision that is now 44 years old.
Rule of Law Initiative of the Leadership for America Campaign
Hans A. von Spakovsky
Manager, Election Law Reform Initiative and Senior Legal Fellow
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