Strike Down Section 5

COMMENTARY Election Integrity

Strike Down Section 5

Feb 27, 2013 3 min read
Hans A. von Spakovsky

Election Law Reform Initiative Manager, Senior Legal Fellow

Hans von Spakovsky is an authority on a wide range of issues—including civil rights, civil justice, the First Amendment, immigration.

Representative John Lewis certainly deserves the nation’s thanks for the fight he led during the civil-rights movement. But his latest commentary in the Washington Post, about the Shelby County case and the Voting Rights Act, shows that he is living in the past. The South has changed since he marched from Selma to Montgomery nearly 50 years ago.

Even the article’s headline is deceptive: “Why we still need the Voting Rights Act.” The entire VRA is not at issue in the Shelby case. The justices will be hearing arguments on Wednesday about the continued constitutionality of Section 5 only.

Section 5 was an emergency provision that was supposed to terminate after five years and that covered only certain jurisdictions (nine states and parts of seven others). Covered jurisdictions such as Shelby County, Ala., are basically in federal receivership — they cannot make any changes to their voting laws without getting preclearance from the federal government. Section 5 was supposed to be a temporary supplement to Section 2, which is the heart of the VRA: the permanent, nationwide ban on racial and ethnic discrimination in voting.

Because the key symptom of the official, systematic voting discrimination that was occurring against black citizens in 1965 was low registration and turnout, coverage under Section 5 was based on registration or turnout below 50 percent in the 1964, 1968, or 1972 presidential elections. When Congress renewed Section 5 in 2006 for the fourth time, it did not update the triggering formula — the formula still uses data from the 1964, 1968, and 1972 elections, and the renewal lasts for 25 years. Had it done so, in all likelihood, all of the states currently covered would have dropped out.

This is because the barriers that prevented registration and turnout in the covered jurisdictions were eliminated long ago. There is nothing that prevents anyone, black or white, from registering and voting.

Representative Lewis claims that many of the covered jurisdictions have “persistent, flagrant, contemporary records of discrimination,” but there is no evidence to support such a claim. He mentions the small town of Calera in Shelby County as an example. But Shelby County has no political control over Calera, a small town that has experienced growing pains because of rapid growth, whatsoever. Calera is an anomaly.

Since 2001, the Department of Justice has objected to only one submission from Alabama, a redistricting plan in Calera. But Justice has not objected to a statewide Alabama preclearance submission in almost 20 years. And in the ten years before the 2006 renewal of Section 5, Justice objected to only 0.06 percent of all of the preclearance submissions received from all levels of government in the entire state of Alabama. This is not a “persistent, flagrant, contemporary” record of discrimination. With all due respect to Lewis, his claim that such cases “are numerous” is simply not true.

No one claims that discrimination does not exist. But isolated cases of it can be remedied through Section 2, rather than by placing Shelby County and the entire state of Alabama under the “emergency” provisions of Section 5 for another 20 years.

When the Supreme Court upheld Section 5 in 1966, it recognized that this law was an extraordinary intrusion into state sovereignty. It was needed in 1965 because dire and unique circumstances existed. No one can rationally argue that such conditions exist today.

As the Supreme Court said several years ago in a similar case out of Texas, “things have changed in the South. . . . Blatantly discriminatory evasions of federal decrees are rare.” Not only do voter-registration and -turnout rates “now approach parity,” but “minority candidates hold office at unprecedented levels.” In fact, in some covered states, black voters’ registration and turnout often exceed those of white voters.

By the time Section 5 approaches its latest termination date (in 2031 if the Supreme Court does not strike it down), states will have been covered under registration and turnout levels that are almost 70 years out-of-date. That is as if Congress, when it passed Section 5 in 1965, had based coverage on turnout in the 1896 election between William McKinley and William Jennings Bryan.

Lewis also claims that Section 5 costs are minimal and consist only of “paper, postage and manpower required to send copies of legislation to the federal government for review,” which he says is “hardly a punishment.” He would have a hard time convincing South Carolina, which spent $3.5 million fighting the Holder Justice Department’s unjustified refusal to pre-clear its voter-ID law. In that litigation, a three-judge panel agreed with the state that Justice was wrong: The law did not violate Section 5 and was not discriminatory.

The Supreme Court should find Section 5 unconstitutional. It is a victim of its own success and is no longer needed. Contrary to John Lewis’s claims, Americans will continue to be protected from discrimination by the other permanent provisions of the Voting Rights Act.

— Hans A. von Spakovsky is a senior legal fellow at the Heritage Foundation.

First appeared in National Review Online.