August 15, 2013

August 15, 2013 | Factsheet on Legal Issues

Voting Rights Act 101: Shelby County v. Holder and Section 5

What is Section 5 of the Voting Rights Act?

  • Section 5 was 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 required certain jurisdictions to get preapproval from the federal government before making any changes in their voting laws, essentially putting those states into the equivalent of federal receivership.
  • Covered jurisdictions had 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 (language minority means American Indians, Alaskan natives, and those who speak Spanish or Asian languages).

Problems with Section 5’s Coverage Formula

  • Coverage was based on registration or turnout below 50% in the 1964, 1968, or 1972 elections. Congress did not update this coverage formula contained in Section 4 of the VRA when it reauthorized Section 5.
  • If Congress had updated the coverage formula to use recent registration and turnout data, none of the states 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.

Shelby County v. Holder

  • The Court found Section 4’s coverage formula unconstitutional because Congress “did not use the record it compiled to shape a coverage formula grounded in current conditions.” Instead, Congress reenacted Section 4 “based on 40-year-old facts having no logical relation to the present day.”
  • The Court left Section 5 in place, leaving open the possibility that it could be reimposed if Congress came up with a new coverage formula based on current conditions.

What should Congress do now?

  • New legislation is not necessary because Section 2 of the VRA can be used to stop any discrimination if and when it occurs. Section 2 applies nationwide and bans racial discrimination in voting.
  • Lawsuits under Section 3 can request that a court place a discriminatory jurisdiction into the equivalent of Section 5 preclearance so that any voting changes must be approved by the court or the Attorney General.
  • Section 3 requires evidence of current discrimination by a specific jurisdiction, rather than Section 5’s blanket preclearance burden on jurisdictions regardless of their recent history and actions.
  • Any attempt to reimpose Section 5 coverage should not be an opportunity to ban measures intended to protect the security and integrity of elections, such as voter identification and citizenship verification for registered voters.

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