Supreme Court Considers the Fate of Section 5

April 28, 2013
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Will States With a History of Voting Discrimination Still Be Required to Have Their Voting Plans Precleared by the Dept. of Justice?

Alabama is trying to end review of their election law changes by the Department of Justice (DOJ). The U.S. Supreme Court recently heard arguments in Shelby County v. Holder considering the fate of Section 5 of the Voting Rights Act which requires federal approval of election law changes in nine southern states and jurisdictions in seven other states with a history of racial discrimination. Lawyers for Shelby County argued that Section 5 is no longer constitutionally justified by current conditions in Alabama. However, since the beginning of 2013, legislators in Alabama and lawmakers in many other jurisdictions covered by Section 5 have introduced bills that restrict voter access. Under Section 5, these proposed changes in voting must be shown not to have a discriminatory purpose or effect.

In 2006, Congress reauthorized the Voting Rights Act and extended Section 5 another 25 years with extraordinary bipartisan support: the vote was 98-0 in the Senate and 390-33 in the House. Laughlin McDonald, Director of the Voting Rights Project of the American Civil Liberties Union, appeared before Congress in 2006 about the continuing need for Section 5. He testified that voting rights litigation in the South and throughout Indian Country as well as Court findings of widespread and systematic discrimination against minority voters underscored the need for continuing Section 5. McDonald stated that in reaching its decision, Congress relied upon 750 Section 5 objections by the DOJ that blocked the implementation of some 2,400 discriminatory changes. The covered jurisdictions, including Alabama and Shelby County, continued to be among the worst acting covered jurisdictions. Since its reauthorization in 1982, Section 5 objections prevented 46 discriminatory voting laws in Alabama from going into effect, 7 from the state and 39 from local jurisdictions.

Alabama’s recent history alone should be proof that Section 5 should not be struck down. Georgia’s Representative John Lewis recently wrote in the Washington Post that many of the covered jurisdictions, including Alabama, have persistent, flagrant, contemporary records of discrimination. In fact, only a few months ago, Alabama introduced legislation to reduce the amount of time to register to vote. Alabama has continued to propose discriminatory voting practices since Congress concluded in 2006 by a nearly unanimous vote that Section 5 was still needed. It is still needed in 2013. And rather than a consideration of striking down Section 5, should it not be expanded to include jurisdictions like Ohio and Pennsylvania which have seen discriminatory voting policies and practices in recent elections? A decision is expected in June.


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