Without the key provision, the Supreme Court’s decision has made Section 5 moot.
by Janell Ross, TheRoot
In the second explicitly race-related ruling this week, which legal analysts and Supreme Court observers have described as far more restrained than had been expected from the conservative-dominated court, the Supreme Court invalidated an essential portion of the Voting Rights Act.
The court’s 5-4 decision voided parts of Section 4, which provided the formula — the guidelines — for the Voting Rights Act used to determine which states and communities are subject to extra federal election oversight called for in Section 5 of the act because of a history of or ongoing evidence of minority-voter suppression.
The court’s Tuesday ruling did not declare Section 5 unconstitutional, as Alabama’s Shelby County and the conservative activists who took the case to court had hoped. Instead it called for Congress, which reapproved the Voting Rights Act in 2006 over the objections of some Republican members of Congress, to create a new formula that will determine which communities are subject to Section 5.
So how did Section 4 and Section 5 work?
Section 5 of the 1965 Voting Rights Act, a provision often described by voting and civil rights advocates as the heart, soul and — when all else fails — the teeth of the law, essentially singled out states and counties with a history of extremely low rates of voter registration among eligible people of color. The states and communities with a particularly egregious history of minority-voter abuses or suppression, and those where less than half of eligible minority adults were registered to vote or actually participated in elections, were subject to a process known as preclearance.
Until Tuesday, that meant these communities had to seek approval from a panel of three federal judges or the Justice Department for any planned changes to voting or elections practices. Both had the authority to approve, block or delay voting changes — adjustments as small as altering a voter-registration form or as large as shifting polling places, voting times or district lines — if the changes seemed likely to reduce minority-voter participation or political influence.
Entire states — Alabama, Alaska, Arizona, Georgia, Louisiana, Mississippi, South Carolina, Texas and Virginia — were subject to Section 5. So, too, were certain counties in California, Florida, New York, North Carolina and South Dakota, as well as some communities in Michigan and New Hampshire. (Most of the South became subject to Section 5 in 1965; other areas were added later to protect Latino and Inuit/Native American voters.) Without Section 4, these states and communities may be no longer subject to additional oversight.
Over time, the work of preclearance moved away from well-known and seemingly archaic but still sometimes employed tactics such as voter intimidation and poll taxes. The three-judge panel and officials inside the Justice Department found themselves blocking state or county efforts to alter district lines, clump together large groups of inactive minority voters or disperse minority voters into new and mostly white, Republican-dominated districts where mathematically those minority voters had little chance of shaping election outcomes.
Voter suppression, Attorney General Eric Holder said earlier this year, has become a more subtle business but one still capable of deeply damaging democracy.
In the case decided Tuesday, Shelby County — a community that includes a sliver of bustling Birmingham, Ala. (known during the civil rights movement as “Bombingham”), and a network of rural and suburban bedroom enclaves — challenged the idea that it and other jurisdictions should be subject to Section 5. Shelby County and its lawyers argued that it and other areas subject to Section 5 were treated differently from other portions of the country where voting conditions for minorities are no better or are actually worse.
They may have made their argument at the right moment. In 2012 alone, efforts to implement so-called voter-ID laws — practices shown to be more likely to disenfranchise minority voters — did extend from covered states such as South Carolina to places such as Colorado and Pennsylvania, which are not subject to Section 5 oversight. And in states such as Alabama, minority-voter participation did soar to record highs in 2008 and again in 2012.
Before Tuesday’s ruling, a state or community could get off the bad-behavior list and no longer remain subject to Section 5’s extra federal monitoring if it could prove no history of discriminatory election activity in the past 10 years. Such a community could apply for a “bailout” from the program. In fact, the Austin, Texas, utility district at the center of an unsuccessful 2009 case challenging Section 5 of the Voting Rights Act, and many other areas, have been approved and removed from the federal oversight program carved out in Section 5.
Shelby County and all of Alabama, for that matter, have never applied. There’s a reason, Section 5 supporters argued in court. Since 2010, at least two Alabama communities have simply refused to hold regularly scheduled elections when it became clear that population changes would likely affect the political and racial or ethnic composition of their city councils. And earlier this year, a group of researchers submitted data (pdf) to the Supreme Court showing that the economic and social well-being for minorities in states covered by Section 5 — including Alabama — was lower than it is in communities not subject to the law. Something about Section 5 communities, they argued, makes them still very much in need of oversight.
Section 5 and the formula the Supreme Court voided Tuesday has been an essential and highly effective tool in the battle to protect minority-voting rights precisely because it is proactive and mandatory, requiring states to seek preclearance for election and voting changes, said Judith Browne Dianis, co-director of the Advancement Project, a Washington, D.C.-based voting-rights watchdog and advocacy organization.
A weaker provision of the Voting Rights Act, known as Section 2, does allow individuals and groups to track and monitor any and every election district in the United States and then file a civil suit. But that method is more expensive, more involved, less precise and, when it comes to making sure that minority voters are able to participate and properly influence every election, not quite as effective as Section 5, Dianis said before the ruling.
Now some voting and civil rights advocates fear that an even more divided and, some say, dysfunctional Congress will be unable to approve a new formula for which communities and states should become or remain subject to Section 5. Or, worse still, minority-voting rights could become a sort of political hostage in larger, ongoing political clashes around public spending or health care.
But the Supreme Court has spoken.
Congress has to figure out a new formula — based on contemporary rather than historical data — or Section 5 will have no meaning.