Court Upholds Voting Rights Act Preclearance Requirement

Shelby County, Alabama v. Holder
 

On May 18, 2012, the U.S. Court of Appeals in Washington rejected a constitutional challenge to the Voting Rights Act (VRA). Under section 5 of the VRA, changes in voting procedures in a “covered” jurisdiction cannot be made without authorization by the federal court in the District of Columbia or the U.S. Attorney General. When the VRA was originally enacted, legislative hearings showed that the Justice Department's efforts to eliminate discriminatory practices with individual court cases were thwarted. As soon as one discriminatory practice was proven to be unconstitutional, a new one would be substituted requiring another round of lengthy and time consuming litigation. The 1965 Act included special preclearance provisions targeted at states where the potential for discrimination was the greatest. Six southern states are covered, as are a number of counties in other states. 

Section 5 was extended for 25 years in 1982. In 2006 the Fannie Lou Hamer, Rosa Parks and Coretta Scott King Voting Rights Act Reauthorization and Amendments extended section 5 for 25 more years. A number of pending cases challenge the constitutionality of Section 5. The key question in these cases is whether contemporary voting discrimination is pervasive enough to justify Section 5's preclearance requirements and whether individual enforcement actions available under Section 2 provide an adequate remedy for violations of the VRA. 

In a 2009 case, Northwest Austin Municipal Utility District No. 1 v. Holder, Chief Justice John Roberts expressed deep skepticism about the validity of Section 5. He viewed the VRA as a substantial encroachment on state sovereignty and a significant departure from a federal system of co-equal states. Robert's opinion identified two questions about Section 5’s continued constitutionality: whether the burdens it imposes on covered jurisdictions are justified by current conditions and whether the scope of its geographic coverage is sufficiently related to the problem it targets. 

Shelby County filed suit in Washington contending that section 5 is unconstitutional because it is no longer "congruent" and "proportional" to the discrimination it seeks to cure. After reviewing the legislative record the Court of Appeals, in a 2-1 decision, affirmed the trial court's finding that evidence of discrimination developed during Congressional hearings was more than adequate to justify a continuation of Section 5’s preclearance requirements. 

The evidence on which Congress relied included thousands of pages of testimony, reports, and data regarding racial disparities in voter registration, voter turnout, and electoral success; the nature and number of Section 5 objections; judicial preclearance suits and Section 5 enforcement actions; successful Section 2 litigation; the number of justice department information requests; reports from federal election observers; and evidence of racially polarized voting. 

Congress found that while “first generation barriers” such as flagrant efforts to deny access to the polls that were pervasive in the 1960s have diminished, “second generation barriers” such as vote dilution prevents minority voters from fully participating in the electoral process. The methods may be more subtle now but the effect and results are the same. The record also contains examples of overt hostility to black voting power by those who control the electoral process. 

To support the requisite showing that the VRA's geographic coverage is sufficiently related to the problem it targets, the record should contain evidence showing the formula focuses on jurisdictions with the most serious problems. The Court found adequate evidence including a study of Section 2 cases between 1982 and 2004 that compared covered and noncovered jurisdictions. The "Katz study" showed that racial discrimination in voting was concentrated in the jurisdictions singled out for preclearance. 

Voting rights remain the subject of continuing conflict and controversy. One of the Section 5 cases will eventually reach the Supreme Court. The dissent in this case and the decision in Northwest Austin Municipal Utility District present the distinct possibility of a Supreme Court decision holding voting discrimination has diminished to the extent that Section 5 is no longer justified; Section 2 provides an adequate remedy for voting discrimination. This would be a bold step, ignoring the mountain of evidence that Congress amassed, but Chief Justice Roberts seems to believe racial discrimination is no longer a problem.

About the Author

Leland Ware, a member of the Board of the Southern Regional Council, is Louis B. Redding Chair and Professor for the Study of Law and Public Policy at the University of Delaware.He is the author of numerous publications, and he served as co-editor of the recently-published volume, Choosing Equality: Essays and Narratives on the Desegregation Experience.