Why We Still Need Section 5 of the Voting Rights Act

By Ari Berman


In 2006, Congress voted overwhelmingly to reauthorize Section 5 of the Voting Rights Act for another twenty-five years. The vote was 390-33 in the House and 98-0 in the Senate. Every top Republican supported the bill. “The Voting Rights Act must continue to exist,” said House Judiciary Chairman James Sensenbrenner, “and exist in its current form.” Civil rights leaders, including Julian Bond and Jesse Jackson, flanked George W. Bush at the signing ceremony.


Yet three days after the 2012 election, in which voter suppression played a starring role, the Supreme Court agreed to hear a conservative challenge to the constitutionality of Section 5, which compels parts or all of sixteen states with a history of racial discrimination in voting to clear election-related changes with the federal government. The challenge originates in Shelby County, Alabama, and is being supported by Republican Attorneys General in Alabama, Arizona, Georgia, South Carolina, South Dakota and Texas. Ed Blum, director of the Project on Fair Representation, which is funding the lawsuit, told the New York Times that Section 5 “is stuck in a Jim Crow-era time warp.”


But past remains present to a disturbing degree in the South. It turns out that states and counties with a history of voting discrimination in 1964 are still trying to suppress the growing minority vote today. Consider, for example, that eight of eleven states in the former Confederacy passed new voting restrictions since the 2010 election. These included laws requiring government-issued photo ID to cast a ballot  (Alabama, Mississippi, South Carolina, Tennessee and Texas), proof of citizenship to register to vote (Alabama and Tennessee), cutbacks to early voting (Florida, Georgia and Tennessee) and disenfranchising of ex-felons (Florida). All of these changes make it harder for minority voters to participate in the political process.


Section 5, which Attorney General Eric Holder has called the “keystone of our voting rights,” can’t stop all of these ills, but it remains the most effective tool the federal government has to object to discriminatory voting changes in the South. “The record compiled by Congress demonstrates that, without the continuation of the Voting Rights Act of 1965 protections, racial and language minority citizens will be deprived of the opportunity to exercise their right to vote, or will have their votes diluted, undermining the significant gains made by minorities in the last 40 years,” the Department of Justice argued in a recent court filing.


This election cycle, DOJ opposed voter ID laws in Texas and South Carolina, early voting cutbacks in Florida, and redistricting maps in Texas under Section 5. The federal courts in Washington sided with DOJ in three of four cases, and also blocked South Carolina’s voter ID law for 2012.


Doug Kendall, president of the Constitutional Accountability Center, reviews the recent court decisions:


On August 30, in Texas v. Holder, a three-judge court unanimously blocked Texas’ new voter identification statute, the most stringent in the nation, finding that the statute would inevitably disenfranchise low-income Texas citizens, who are disproportionately African American and Hispanic.  The court explained that, unlike Indiana, whose voter identification law was upheld by the Supreme Court in 2008, Texas had gone to great lengths to suppress the vote in poor and minority communities, strictly limiting the types of photo identifications available – a license to carry a concealed firearm is a valid ID under the law, but not a student or Medicare ID card – and making it costly to obtain a so-called “free” election ID for use at the polls.  For those without one of the five permitted photo identifications, the court found that the law was tantamount to a poll tax, “imposing an implicit fee for the privilege of casting a ballot.”  The “very point” of the Voting Rights Act, the court explained, was to deny “states an end-run around the Fifteenth Amendment’s prohibition on racial discrimination in voting.” 


Likewise, on August 16, in Florida v. United States, three other judges unanimously held that Florida could not slash the period for early voting, explaining that “a dramatic reduction in the form of voting that is disproportionately used by African Americans would make it materially more difficult for some minority voters to cast a ballot.” Florida’s reduction in early voting, the court explained, was akin to “closing polling places in disproportionately African-American precincts.”  Noting that Congress enacted the Voting Rights Act to enforce the Fifteenth Amendment and “provide robust and meaningful protections for minority voting rights,” the court held that Florida could not suppress the vote through a significant reduction in the hours of early voting.   


Finally, on August 28, in Texas v. United States, in a yet another unanimous ruling, another three-judge court held that Texas’ new state legislative and congressional districts could not be squared with the Voting Rights Act, finding that new congressional, state senate and state house district lines had either the purpose or effect of diluting minority voting strength.  Importantly, because the court’s opinion, authored by George W. Bush appointee Judge Thomas Griffith, held that Texas had purposefully discriminated on account of race in both the congressional and state senate plans, Texas’ districting was both a violation of the Voting Rights Act and the Constitution.


In South Carolina’s voter ID trial, Judge Robert Bates, a George W. Bush appointee, specifically praised Section 5’s judicial review. “One cannot doubt the vital function that Section 5 of the Voting Rights Act has played here,” Bates wrote. “Without the review process under the Voting Rights Act, South Carolina’s voter photo ID law certainly would have been more restrictive. Several legislators have commented that they were seeking to structure a law that could be precleared.”


In a separate case last year, Bates ruled against Shelby County’s challenge to Section 5. “This Court finds that Section 5 remains a ‘congruent and proportional remedy’ to the 21st century problem of voting discrimination in covered jurisdictions,” he wrote in September 2011.


During this election, Republicans didn’t even hide the fact that they were trying to limit the voting rights of Democratic-leaning minority voters. “I guess I really actually feel we shouldn’t contort the voting process to accommodate the urban—read African-American—voter-turnout machine,” said Doug Preisse, the chairman of the Republican Party in Franklin County, Ohio. Nor were Republicans subtle about their racial motivations. During South Carolina’s trial, it was revealed that GOP State Rep. Alan Clemmons, author of the voter ID bill, received an email from a supporter of the law, Ed Koziol of Greenville, suggesting that if black voters received a reward for obtaining voter ID “it would be like a swarm of bees going after a watermelon.” To which Clemmons replied, “Amen, Ed, thank you for your support.”


Statements like these and the new voting restrictions passed by Republicans since 2010 indicate that Section 5 is as important now as it ever was. Court across the country signaled as much when they blocked ten major GOP-passed voter suppression laws this year.


I previewed the fight over Section 5 before the Supreme Court in a recent Nation piece:


Rick Hasen, an elections expert at the University of California, Irvine, School of Law and author of The Voting Wars, predicts the Court will invalidate Section 5, noting that Chief Justice John Roberts led the charge against the expansion of the Voting Rights Act as a young lawyer in the Reagan Justice Department. “This is his signature issue,” Hasen says. The disappearance of Section 5 would be a devastating setback for voting rights, akin to the way the Citizens United decision eviscerated campaign finance reform.


But Debo Adegbile, action president of the NAACP Legal Defense Fund, who successfully argued against overturning Section 5 during a previous challenge before the Court in 2009, believes the rulings against voter suppression laws this year will strengthen his side’s argument when they go back before the justices. “Today, the average person understands what Congress came to understand when they reauthorized the Voting Rights Act [by an overwhelming margin in 2006], which is that we have made a tremendous amount of progress. But the strain that runs through American politics of blocking voters is far from gone and rears its head in pernicious ways,” Adegbile says. “That changes the context of the conversation.”


Indeed, only a Supreme Court wholly divorced from reality would review the record on voting rights since Congress reauthorized the Voting Rights Act in 2006 and conclude that a key pillar of the law was no longer needed.