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Arguments for and against restoring Section 5 preclearance under the Voting Rights Act

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In 2013, the U.S. Supreme Court struck down a provision of the Voting Rights Act (VRA) that outlined a formula to determine which states and local governments were required to get federal pre-approval, or preclearance, before changingf their election and voting procedures. The formula—in Section 4(b) of the act—was intended to identify states with histories of racially discriminatory voting practices. The preclearance provision—Section 5—required states meeting criteria outlined in the formula to demonstrate that any new procedures were not intended to and would not have the effect of hindering the ability to vote based on race or color. The Supreme Court struck down Section 4(b) of the act, leaving Section 5 intact. This meant that the preclearance provision was inoperable but that it could become operable if a new formula were approved by Congress.

Whether Section 5 of the VRA should be restored through a new coverage formula is a subject of debate.

Supporters of restoring federal preclearance argue that there is a continued need for preclearance and that discriminatory laws need to be prevented, not just challenged after implementation.
Opponents of restoring federal preclearance argue that there is no evidence justifying the extent of federal power it grants and that other provisions of the VRA are sufficient for addressing discrimination.


On this page, you will find:

Arguments at a glance

This section includes quotes briefly summarizing some of the most prevalent arguments for and against restoring Section 5 preclearance.

Arguments for and against restoring Section 5 preclearance
Support Opposition
"The [VRA] works to dislodge and deter the construction of barriers by state and local jurisdictions that block or abridge the right to vote of minority citizens. Especially following the 2013 Supreme Court decision in Shelby County v. Holder precluding operation of certain parts of the Voting Rights Act, the narrowness of statutory mechanisms to halt discriminatory election procedures before they are instituted has resulted in elections with discriminatory voting measures in place. After an election takes place with discriminatory voting measures, it is often impossible adequately to remedy the violation even if the election procedures are subsequently overturned as discriminatory."

-U.S. Commission on Civil Rights (2018)[1]
"Section 5 was an unprecedented, extraordinary intrusion into state sovereignty since it required covered states to get the approval of the federal government for voting changes made by state and local officials. … The Supreme Court in Shelby County found that the general conditions in covered states today do not justify their continued exception from general constitutional principles and strictures. However, a court can still appoint federal examiners and place a particular jurisdiction into the equivalent of Section 5 preclearance if it finds sufficient evidence of current, repeated discrimination and a recalcitrant defendant under Section 3’s requirements."

-Hans von Spakovsky, The Heritage Foundation (2018)[2]

Support arguments in detail

Two general arguments in favor of restoring Section 5 preclearance are that there is a continued need for preclearance and that discriminatory laws need to be prevented, not just challenged after implementation. This section includes quotations detailing those arguments from a variety of sources.

There is a continued need for Section 5 preclearance

In a 2023 article for the Legal Defense Fund, senior communications associate Ella Wiley wrote about the effect that ten years without section 5 preclearance had on voting rights.

According to its website, the Legal Defense Fund says it is "America’s premier legal organization fighting for racial justice."[3]

“

On June 25, 2013, the U.S. Supreme Court disarmed the most effective provision in the Voting Rights Act (VRA) of 1965 that protected against suppressive and discriminatory voting legislation: preclearance. This is the process by which states with a history of racial discrimination in voting were required to submit changes to voting policies for approval by the federal government as mandated by Section 5 of the VRA. These crucial checks and balances put the burden on states to ensure not only that new voting laws did not discriminate against Black voters and other voters of color, but that opportunities to expand voting access were not missed. However, the Shelby County v. Holder decision, which invalidated the coverage formula under Section 4(b) used to determine whether jurisdictions would be subject to preclearance, forever changed the voting rights landscape.

To many, the Shelby decision is the most significant setback in voting rights in the decades since the VRA was passed, as it opened the floodgates for hostile state governments to pass racially gerrymandered redistricting maps, stringent voter ID laws, bans on drop boxes, and other suppressive legislation without federal oversight.[4]

”
—Ella Wiley, Senior Communications Associate, Legal Defense Fund (2022)[5]


Discriminatory laws need to be prevented, not just challenged after implementation

The Brennan Center for Justice argued that Section 2, which allows legal challenges against alleged voting discrimination, is not a substitute for Section 5's preclearance provision because it can not prevent discriminatory laws from being implemented.

The Brennan Center says it is a progressive law and policy institute whose mission is "to reform, revitalize – and when necessary, defend – our country's systems of democracy and justice."[6]

“

Just hours after the Supreme Court issued its ruling, Texas announced that it would implement the country’s strictest voter ID law, which had previously been denied preclearance and hadn’t been put into effect. (This notorious law allowed people to use a concealed carry gun permit as voter ID but barred the use of a University of Texas ID.) A federal court later blocked the law as discriminatory — but not before it marred multiple elections.

Other states responded similarly to the Shelby County ruling with laws restricting voting. Federal courts have repeatedly found that these new laws made voting harder for minorities — some purposefully so. One federal appeals court ruled that a North Carolina law — a broad set of voting restrictions unveiled shortly after Shelby County — “target[ed] African Americans with almost surgical precision.” These lawsuits were brought under a remaining provision of the Voting Rights Act, Section 2, which allows challenges to voting discrimination. But lawsuits are no substitute for preclearance, which effectively prevented discriminatory voting changes from taking effect in the first place. Section 2 lawsuits are lengthy, expensive, and often don’t yield results until after an election (or several) is over. And they are rarely used for the most pervasive consequence of the weakening of the law — local decisions that make it harder for people to vote. Since Shelby County, officials have closed hundreds of polling places in counties previously covered by the VRA.[4]

”
—The Brennan Center (2018)[7]

Opposition arguments in detail

Two general arguments against restoring Section 5 preclearance are that there is no evidence justifying the extent of federal power it grants and that other provisions of the VRA are sufficient for addressing discrimination. This section includes quotations detailing those arguments from a variety of sources.

There is no evidence justifying the extent of federal powers granted by Section 5

Hans von Spakovsky of The Heritage Foundation argued that there was no evidence of continued need for Section 5 based on registration and turnout rates for black voters.

The Heritage Foundation says it is a conservative think tank whose 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."[8]

“

As the Supreme Court said, Section 5 “employed extraordinary measures to address an extraordinary problem.” ...

Section 5 was needed in 1965. But as the Court recognized, time has not stood still and “[n]early 50 years later, things have changed dramatically.” The systematic, widespread discrimination against black voters has long since disappeared. As the Court recognized in the Northwest Austin case in 2009: “Voter turnout and registration rates now approach parity. Blatantly discriminatory evasions of federal decrees are rare. And minority candidates hold office at unprecedented levels.”

As an example, in Georgia and Mississippi, which had such high disenfranchisement rates in 1964, the percentage of black voters registered actually exceeded the white registration percentage in the 2004 election, just two years before Congress was considering the renewal of Section 5. Black registration exceeded white registration by 0.7 percentage points in Georgia and by 3.8 percentages points in Mississippi. The Census Bureau’s May 2013 report on the 2012 election showed that blacks voted at a higher rate than whites nationally (66.2 percent vs. 64.1 percent).

That same report shows that black voting rates exceeded that of whites in Virginia, South Carolina, Georgia, Alabama, and Mississippi, which were covered in whole by Section 5, and in North Carolina, and Florida, portions of which were covered by Section 5. Louisiana and Texas, which were also covered by Section 5, showed no statistically significant disparity between black and white turnout. Minority registration and turnout are consistently higher in the formerly covered jurisdictions than in the rest of the nation.[4]

”
—Hans von Spakovsky, The Heritage Foundation (2018)[2]


Other provisions of the VRA are sufficient for addressing discrimination

Roger Clegg, president of the Council for Equal Opportunity, argued that Sections 2 and 3 of the VRA are sufficient for addressing discrimination.

The Council for Equal Opportunity describes itself as "the nation’s only conservative think tank devoted to issues of race and ethnicity" and says it works "to promote a colorblind society, one within which race and skin color are no longer an issue."[9]

“

At that time [in 1965], whole swaths of the country were systematically and blatantly denying people the right to vote because of race. But now there are no large sections of the country like 1965 Mississippi. I very much doubt, in fact, that there is any single state or local jurisdiction that is like 1965 Mississippi.

But what if there were? Well, then you have Section 3 of the act, which allows a judge to put a jurisdiction that denies or restricts voting rights into this kind of “preclearance” receivership. It’s been done. For other instances of racial discrimination, you have Section 2 of the act, which applies to the whole country. Remember that the only provision the Court struck down was the coverage formula for Section 5; the rest of the act is untouched.

Indeed, these other provisions are now being used, aggressively, by the Obama administration and liberal civil-rights groups, and there is no evidence that they need more weapons in their arsenals. If they can prove their cases in court, they will win—the way it works with every other civil-rights law—but with Section 5 they have gotten used to winning without having to prove anything, and that’s the only reason for the efforts to bring back Section 5.[4]

”
—Roger Clegg, president of the Council for Equal Opportunity (2015)[10]

Background

Congress adopted the Voting Rights Act in 1965 to end discriminatory practices by state and local governments that limited voting rights based on race or color.[11]

Subsection 4(b) of the act specified that any state or political subdivision was subject to the preclearance requirement in Section 5 if: "(1) the Attorney General determines that it maintained on November 1, 1964, any test or device," where "test or device" refers to tests of literacy, moral character, educational level, or other prerequisite to vote or register to vote, and "(2) the Director of the Census determines that less that 50 per centum of the persons of voting age were registered on November 1, 1964, or that less than 50 per centum of such persons voted in the presidential election of November 1964."[11]

Section 4(b) was amended in 1970 and 1975 to reference more current presidential election years (November 1968 and 1972, respectively). As part of the 1975 amendment, the definition of "test or device" was amended to include disseminating election materials and ballots in English only in jurisdictions where at least 5 percent of the voting-age population speaks another language.[12]

Section 5 of the act requires covered states to seek preclearance for any changes to voting and election procedures from the United States Attorney General or a declaratory judgment from the United States District Court for the District of Columbia "that such qualification, prerequisite, standard, practice, or procedure does not have the purpose and will not have the effect of denying or abridging the right to vote on account of race or color." Until federal approval is granted, "no person shall be denied the right to vote for failure to comply with such qualification, prerequisite, standard, practice, or procedure."[11]

At the time of the 2013 Shelby County v. Holder ruling, nine states were subject to the preclearance requirement in Section 5, along with 56 counties and two townships in other states.[13]

The coverage formula and preclearance requirement were originally set to expire after five years. However, Section 5 was reviewed and renewed when the VRA came before Congress in 1970, 1975, 1982, and 2006.[14]

Noteworthy cases

Shelby County v. Holder (2013)

See also: Shelby County v. Holder

On June 25, 2013, in a 5-4 decision, the Supreme Court struck down Section 4(b) as unconstitutional, saying it exceeded Congress' power to enforce the Fourteenth and Fifteenth Amendments. The majority opinion was delivered by Chief Justice John Roberts, joined by Justices Antonin Scalia, Anthony Kennedy, Clarence Thomas, and Samuel Alito. The majority stated that the disparate treatment of the states was "based on 40-year-old facts having no logical relationship to the present day" and that a state cannot be subject to preclearance because of past discrimination.[15]

In her dissent, Justice Ruth Bader Ginsburg wrote, "Throwing out preclearance when it has worked and is continuing to work to stop discriminatory changes is like throwing away your umbrella in a rainstorm because you are not getting wet."[15]

The court did not rule on whether Section 5 is constitutional. However, because Section 5 is only applied to jurisdictions covered by 4(b), Section 5 was rendered inoperable.[15]

In 2010, Shelby County, Alabama, an area subject to preclearance, sued the United States Attorney General, challenging Section 4(b) and 5 as unconstitutional. The United States District Court for the District of Columbia ruled in 2011 that the evidence before Congress in 2006 was sufficient to justify the re-authorization of Section 5 and the continued use of the formula in Section 4(b). Shelby County appealed. On May 18, 2012, the U.S. Court of Appeals for the D.C. Circuit affirmed the previous decision, concluding that the use of Section 5 was still justified and that the coverage formula was still acceptable.[16][17] Shelby County appealed to the United States Supreme Court, which struck down Section 4(b).[18]

Northwest Austin Municipal Util. Dist. No. One v. Holder (2009)

See also: Northwest Austin Municipal v. Holder

Northwest Austin Municipal v. Holder established that all political subdivisions, such as utility districts, are eligible to be released from the preclearance requirements of the Voting Rights Act of 1965.[19]

The Northwest Austin Municipal Utility District No. 1, as a part of Texas, was subject to the preclearance requirements of Section 5 of the Voting Rights Act. The district filed suit in the United States District Court for the District of Columbia, arguing it had no history of racial discrimination and that Section 4(a) of the Voting Rights Act allowed the district to seek to be released from preclearance. The district further argued that Section 5 was unconstitutional if it did not declare them eligible to seek release from preclearance. The district court rejected the claims, stating that Section 4(a) did not apply to entities that did not register voters and that Section 5 was constitutional. The district appealed to the Supreme Court, which agreed to hear the case.[19]

On June 22, 2009, the Supreme Court found in favor of the district in a unanimous decision that the district could seek to be released from preclearance per Section 4(a). The court decided not to address the constitutionality of Section 5 in an 8-1 decision.[19][20]

South Carolina v. Katzenbach (1966)

Katzenbach was the first Supreme Court case on the constitutionality of the VRA's preclearance provisions and was decided a year following the act's passage. The Supreme Court upheld the preclearance provisions of the law, among others.[21]

South Carolina filed suit challenging several provisions of the VRA, including Sections 4 and 5, claiming that they violated the equal treatment of states principle and Article III (which enumerates judicial powers), respectively. South Carolina was subject to preclearance under the formula set out in Section 4(b).[21]

In upholding the provisions of the VRA, the Supreme Court's majority opinion read, “Congress had learned that substantial voting discrimination presently occurs in certain sections of the country, and it knew no way of accurately forecasting whether the evil might spread elsewhere in the future. Congress chose to limit its attention to the geographic areas where immediate action seemed necessary.”[21]

External links

See also

Footnotes

  1. ↑ The U.S. Commission on Civil Rights, "An Assessment of Minority Voting Rights Access in the United States," September 12, 2018
  2. ↑ 2.0 2.1 The Heritage Foundation, "An Assessment of Minority Voting Rights Obstacles in the United States," February 23, 2018
  3. ↑ The Legal Defense Fund, "About Us," accessed December 12, 2023
  4. ↑ 4.0 4.1 4.2 4.3 Note: This text is quoted verbatim from the original source. Any inconsistencies are attributable to the original source.
  5. ↑ The Legal Defense Fund, "Reflecting on the Voting Rights Landscape a Decade After Shelby County v. Holder," accessed December 12, 2023
  6. ↑ The Brennan Center for Justice, "Our Mission," accessed September 20, 2019
  7. ↑ The Brennan Center for Justice, "How We Can Restore the Voting Rights Act," August 6, 2018
  8. ↑ The Heritage Foundation, "About Heritage," accessed September 20, 2019
  9. ↑ Center for Equal Opportunity, "Center for Equal Opportunity," accessed October 23, 2019
  10. ↑ Council for Equal Opportunity, "50th anniversary of the Voting Rights Act," August 2015
  11. ↑ 11.0 11.1 11.2 Office of the Clerk, U.S. House of Representatives, “Public Law 89-110: Voting Rights Act of 1965,” accessed January 25, 2017
  12. ↑ The United States Department of Justice, “Section 4 of the Voting Rights Act,” accessed January 25, 2017
  13. ↑ The United States Department of Justice, "Jurisdictions Previously Covered by Section 5,” accessed January 25, 2017
  14. ↑ The United States Department of Justice, "About Section 5 of the Voting Rights Act," accessed February 1, 2017
  15. ↑ 15.0 15.1 15.2 SupremeCourt.gov, "Shelby County Alabama v. Holder, Attorney General, et al.," June 25, 2013
  16. ↑ USCourts.gov, "Shelby County, Alabama, Appellant v. Eric H. Holder, Jr., in his official capacity as Attorney General of the United States, et al., Appellees," accessed July 6, 2015
  17. ↑ USCourts.gov, "SHELBY COUNTY, ALABAMA,Plaintiff,v.ERIC H. HOLDER, Jr., in his official capacity as Attorney General of the United States, Defendant.," accessed July 6, 2015
  18. ↑ SupremeCourt.gov, "CERTIORARI GRANTED ," accessed July 6, 2015
  19. ↑ 19.0 19.1 19.2 Justia.com, "Northwest Austin Municipal Util. Dist. No. One v. Holder 557 U.S. 193 (2009)", accessed July 8, 2015
  20. ↑ SCOTUSBlog.com, "Northwest Austin Municipal Utility District Number One v. Holder," accessed July 8, 2015
  21. ↑ 21.0 21.1 21.2 Cornell University Law School Legal Information Institute, “South Carolina v. Katzenbach,” accessed February 1, 2017
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