February 27, 2013
By Hans A. von Spakovsky
The Supreme Court should strike down Section 5, which was a temporary, emergency provision that was only supposed to last five years. The terrible conditions that justified Section 5 in 1965 do not exist today.
The right to vote of black Americans is not at stake. The heart of the Voting Rights Act is Section 2, which outlaws racial discrimination in voting. Section 2 is permanent and applies nationwide.
Section 5 was designed to stop discrimination by putting covered states into the equivalent of federal receivership. It requires covered states to get pre-approval from the federal government before they can make any changes in their voting laws. It was only a supplement to the main protection of Section 2
[See a collection of political cartoons on Congress.]
But when the Supreme Court upheld Section 5's constitutionality in 1966, it acknowledged that Section 5 was an extraordinary intrusion into state sovereignty unprecedented in our history. It was upheld only because of the dire, "exceptional conditions" and "unique circumstances" that existed then.
As Justice Clarence Thomas noted in 2009 in another case, the "lack of sufficient evidence that the covered jurisdictions currently engage in the type of discrimination that underlay the enactment of Section 5 undermines any basis for retaining it."
The most visible evidence of this is the failure of Congress in 2006 to update the formula that triggers coverage under Section 5. There are nine states and parts of seven other states covered today based on low registration and turnout in the 1964, 1968, and 1972 elections.
Thus, jurisdictions are covered today based on over 40-year-old data. Yet the disparity in the registration and turnout of black voters compared to white voters has virtually disappeared and in some covered states actually exceeds that of whites. They would not be covered today based on current registration and turnout levels.
Most importantly, as the Supreme Court itself previously acknowledged, "[t]hings have changed in the South … Blatantly discriminatory evasions of federal decrees are rare" and "minority candidates hold office at unprecedented levels."
The systematic, official discrimination that justified Section 5 has disappeared. The isolated cases of discrimination that still occur can be remedied by Section 2. As Justice Clarence Thomas has said, "[a]dmitting that a prophylactic law as broad as Section 5 is no longer constitutionally justified based on current evidence …is not a sign of defeat. It is an acknowledgment of victory."
-Hans von Spakovsky is a senior legal fellow at the Heritage Foundation and manager of its Civil Justice Reform Initiative. He is a former FEC commissioner and Justice Department lawyer.
First appeared in US News & World Report's "Debate Club."
Hans A. von Spakovsky
Manager, Election Law Reform Initiative and Senior Legal Fellow
Read More >>
Request an interview >>
Please complete the following form to request an interview with a Heritage expert.
Please note that all fields must be completed.
Heritage's daily Morning Bell e-mail keeps you updated on the ongoing policy battles in Washington and around the country.
The subscription is free and delivers you the latest conservative policy perspectives on the news each weekday--straight from Heritage experts.
The Morning Bell is your daily wake-up call offering a fresh, conservative analysis of the news.
More than 200,000 Americans rely on Heritage's Morning Bell to stay up to date on the policy battles that affect them.
Rush Limbaugh says "The Heritage Foundation's Morning Bell is just terrific!"
Rep. Peter Roskam (R-IL) says it's "a great way to start the day for any conservative who wants to get America back on track."
Sign up to start your free subscription today!
The Heritage Foundation is the nation’s most broadly supported public policy research institute, with hundreds of thousands of individual, foundation and corporate donors. Heritage, founded in February 1973, has a staff of 275 and an annual expense budget of $82.4 million.
Our mission is to formulate and promote conservative public policies based on the principles of free enterprise, limited government, individual freedom, traditional American values, and a strong national defense. Read More
© 2014, The Heritage Foundation Conservative policy research since 1973