Voting Rights Act Section 5 Preclearance Provision threatened by Challenge at the U.S. Supreme Court

Image: thedailybeast.com

Despite the fact that African Americans and other racial and ethnic minority Americans are guaranteed the right to vote by the 15th Amendment to the U.S. Constitution, which was passed just after the Civil War in 1870, states and local jurisdictions continued to use disenfranchising tactics such as poll taxes, literacy tests, gerrymandering and outright intimidation to stop people from casting free and unfettered ballots.  Thus the Voting Rights Act of 1965 (VRA) was enacted to insure that no federal, state or local government may in any way impede people from registering to vote or voting because of their race or ethnicity.  Most provisions in the VRA, and specifically the portions that guarantee that no one may be denied the right to vote because of his or her race or color, are permanent.

Section 5 of the VRA, which was originally set to expire after 5 years, requires certain jurisdictions which have an established history of state- or jurisdiction-administered disenfranchisement based on race to obtain advance approval or “preclearance” from the US Department of Justice or the US District Court in D.C. before they can make any changes to voting practices or procedures.  This includes “redistricting”, or the re-drawing of congressional district boundaries which happens every 10 years as the result of the census.  Federal approval is to be given as soon as the jurisdiction proves that the proposed change would not abridge the right to vote on account of race or color.   Under Section 5 a proposed redistricting map must demonstrate that the changes have neither a discriminatory purpose nor effect.

Since 1982, the VRA has also included a “bail-out” mechanism, which allows a jurisdiction to be removed from Section 5 coverage if it can show that (1) it has been in full compliance with the preclearance requirements for the past 10 years; (2) no test or device has been used to discriminate on the basis of race, color, or language minority status; and (3) no lawsuits against the jurisdiction, alleging voting discrimination, are pending.  Bipartisan congressional majorities have reauthorized Section 5 of the VRA four times, most recently in 2006, when it passed the House overwhelmingly and the Senate unanimously after over 20 hearings and testimony from more than 50 expert witnesses and more than 17,000 pages of testimony (including testimony submitted by the NAACP) and was signed into law by then-President George W. Bush.

On Feb. 27, 2013, the United State Supreme Court will hear arguments in Shelby County, Alabama v. Holder, a case which challenges the constitutionality of Section 5 of the VRA.

On May 18, 2011, the U.S. Court of Appeals affirmed a lower court ruling in this case upholding the constitutionality of Section 5 of the VRA.  Writing for the majority, Judge David Tatel stated that Congress still had the right to insist that the Justice Department continue to monitor voting rights in certain areas.  Without Section 5, Tatel concluded, the rights of minority voters would be in jeopardy.  Further proof of the continued need for Section 5 can be found in the fact that since 2010, 8 out of the 11 states in the former Confederacy have passed laws designed to make it harder for racial and ethnic minorities to register and vote.

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