What is Section 5 of the Voting Rights Act?
- Section 5 is the temporary, emergency provision passed in 1965 that was supposed to expire after five years. In 2006, Congress renewed it for the fourth time—for another 25 years.
- It requires certain jurisdictions to get preapproval from the Justice Department or a federal court in Washington, D.C., before making any changes in their voting laws, essentially putting some states into the equivalent of federal receivership.
- Covered jurisdictions have the burden of proving their voting change “neither has the purpose nor will have the effect of denying or abridging the right to vote on account of race or color” or inclusion in a language minority, reversing the usual burden of proof standard.
- Nine states are covered in whole: Alabama, Alaska, Arizona, Georgia, Louisiana, Mississippi, South Carolina, Texas, and Virginia; and parts of six other states are covered: California, Florida, New York, North Carolina, Michigan, and South Dakota.
Problems with Section 5’s Coverage Formula
- Whether a jurisdiction is covered by Section 5 is based on 40-year-old data: registration or turnout below 50% in the 1964, 1968, or 1972 elections. Congress did not update this coverage formula when it reauthorized Section 5 in 2006.
- If Congress had updated the coverage formula to use registration and turnout data from the 2004 election, none of the states currently subject to Section 5 would have remained covered because the registration and turnout of black voters is on par with white voters and exceeds that of white voters in some of the covered states.
- The Supreme Court warned Congress in 2009 that the coverage formula was constitutionally questionable, but no changes have been proposed.
- A May 2013 Census Bureau report shows that blacks voted at a higher rate than whites nationally in the 2012 election (66.2% to 64.1%).
- The Census Bureau report also demonstrates that blacks voted at substantially higher rates than whites in seven of the states covered by Section 5, which was a much better showing than many noncovered states in other parts of the country.
The issues before the Supreme Court in Shelby County v. Holder
- Shelby County, Alabama, sued the federal government, arguing that Section 5 is no longer constitutional because the terrible conditions that justified this extraordinary intrusion into state sovereignty in 1965 do not exist today.
- No one can rationally claim that there is still widespread, systematic discrimination in voting in the covered jurisdictions or that the exceptional conditions that justified Section 5 in 1965 are still present.
- The Court is not considering the constitutionality of the Voting Rights Act generally, and its ruling will not affect the validity of other provisions, such as Section 2, which is a nationwide, permanent provision that bans racial discrimination in voting and is a very effective tool to combat discrimination.
- Principles of federalism and state sovereignty, as well as Congress’s reliance on out-of-date election data to create the coverage formula, support the Court’s invalidating Section 5. If the Court strikes down Section 5, it will be because the Court recognizes that Congress should not treat states differently based on 40+ year-old election data.
- Another constitutional problem with Section 5 is its use of an “effects” test, which requires no actual evidence of racial discrimination. The principal uses of the effects test today are to require racial gerrymandering, and to challenge measures designed to protect the security and integrity of elections, such as voter identification.