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Hanging In the Balance: Section 5 of the Voting Rights Act

  This blog entry is cross posted at Project Vote's Voting Matters Blog

By Erin Ferns and Donald Wine II

In 1965 the course of American democracy changed when the Voting Rights Act was enacted to ensure proper enforcement of the 15th Amendment of the United States Constitution, which grants equal voting rights to people of color.  While many strides have been made since the VRA's enactment, including rising voter participation among the nation's historically underrepresented citizens, voting rights advocates argue that it is still a long road to truly non-discriminatory voting practices and a balanced electorate.  Now, the course of American democracy may change again as the U.S. Supreme court is considering a high profile case that challenges the constitutionality of a key provision of the VRA.

In addition to prohibiting against voting standards, practices, or procedures that have a discriminatory impact on minority groups, the VRA requires 16 states and areas that have a history of discrimination to seek federal approval or “preclearance” before making changes to their voting laws or election procedures.  According to a summary of the Act by Project Vote,  “a substantial increase in African-American voter registration took effect” as a result of the law’s passage.  

On April 29, the last day of oral arguments of the 2008 term, the U.S. Supreme Court heard Northwest Austin Municipal Utility District Number One v. Holder, a case that may determine the constitutionality of the provision under Section 5 of the VRA. At issue is whether the Texas utility district (“NAMUDNO”) would qualify as a political subdivision that could petition to exempt itself or “bail out” of the provisions under Section 5.  Attorney Gregory Coleman of Yetter, Warden & Coleman in Austin, Texas, argued on behalf of NAMUDNO, while Deputy U.S. Solicitor General Neal K. Katyal argued on behalf of Attorney General Eric Holder and the Justice Department.  Debo Adegbile, of the NAACP Legal Defense Fund, argued in favor of Section 5 of the VRA.

During the arguments, it was clear that the constitutional arguments were the most contentious.  The constitutionality debate centered around the question of whether the VRA preclearance provision’s renewal in 2006 came with sufficient Congressional justification of pervasive racial discrimination in voting. While many of the Justices focused on why this small utility district should be made to conform within those rules when it had done nothing wrong, others focused on the data that indicates voting discrimination still exists in several areas of the country, including those states that fall under the preclearance provision of Section 5.  Although the “bailout” provision was also a point of contention, the majority of the lengthy argument, which went beyond the allotted hour time limit, was dedicated to the constitutionality of the preclearance provision.

Discussed at length was Congress’ reauthorization of the VRA in 2006 without adapting changes to some of the rules in light of what some call the nonexistence of voting discrimination. However, “the Obama administration and civil rights groups argue that the law still is needed to prevent discriminatory election changes and that Congress amassed a lot of evidence in support of its position,” the Associated Press reported on April 29.

“In 2006, Congress reauthorized Section 5 by overwhelming margins after holding 21 hearings, taking testimony from some 200 witnesses and experts and compiling a record of more than 17,000 pages,” according to NAACP Legal Defense and Education Fund president and director-counsel, John Payton in the New York Times blog, Room for Debate. “That record revealed that some 2,400 discriminatory changes in voting practices and procedures had been caught by the Section 5 process since it was last reauthorized in 1982 to 2006…If Section 5 had not existed, those 2,400 discriminatory changes would have gone into effect – provoking years of litigation in the federal courts at a cost of millions of dollars.”

“I don’t understand, with a record like that, how you can maintain as a basis for this suit that things have radically changed,” Justice David Souter asked NAMUDNO attorney, Gregory Coleman, after citing “what he characterized as evidence of discrimination – including a 16-point difference in Hispanic and non-Hispanic voter registration in Texas and 600 lawsuits throughout the country alleging voter discrimination,” according to an April 30 Atlanta Journal Constitution report. “They may be better. But to say that they have radically changed … [is] to deny the empirical reality.”

Justice Ruth Bader Ginsberg said that while discrimination in voting rights was at one time “blatant” and “overt,” what she called “second generation discrimination” now is “more subtle, less easy to smoke out,” according to an April 30 Associated Press report.  For instance, voter discrimination can be seen in the lower voter registration and turnout rates among the nation’s minorities, and voting rights advocates argue that this is the result of unequal access due to inconsistent implementation of voter registration and restrictive voting procedures such as voter ID and inconsistent database matching standards.

It is difficult to predict how the Court will rule this summer, but what is in doubt is nothing less than the future of Section 5 of the VRA.  Given the long history of voter suppression in America, preclearance of certain states with a history of discrimination is a vital practice that helps underrepresented citizens register to vote and cast their ballots without a cloud of intimidation about them.  Its removal, on the other hand, would allow these states to proceed unchecked with discriminatory changes to election laws and procedures, potentially creating new barriers for already-underrepresented citizens in the electoral process.  The Supreme Court has Section 5 of the VRA in the balance, and their opinion will determine the integrity, credibility, and authority of the hard fought and valuable Voting Rights Act.

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