The Voting Rights Act: The Repeal of Section 4

June 25, 2013by Vitaliy Perekhov

Filed under: Civil Rights, Gov and Political Process, Voting


Section 5 of the Voting Rights Act has essentially been nullified by a major decision from the Supreme Court.  The Court overturned Section 4 of the Act in a 5-4 decision split along ideological lines.  The decision is being seen as a challenge to the mission of the Voting Rights Act passed in 1965.  Section Five had been under particular scrutiny over the last couple months as for the first time in a number of years the necessity of the provision has been challenged.

The Supreme Court decision does not overturn Section 5 directly, but for all intents and purposes it renders it obsolete.  The decision itself overturned Section 4 which set guidelines for what state or municipality should fall under its jurisdiction.  With no perquisites to fall under, states are free to make their own election laws without clearance from the Department of Justice.  That is until Congress makes new requirements in order for states to be subject to the guidelines of Section 5.

Section Five, decrees that in certain states as well as some particular counties where the racial makeup is overwhelmingly African American, that any proposed electoral changes must be cleared with the Department of Justice.  The original declaration mandated only a five year term for the act, with any further extensions to be approved by Congress.   The specific formula for intervention originally declared that if less than 50 percent of persons of voting age were registered or that less than 50 percent of voting age voting in the presidential election of November of 1964, 1968, or 1972 then those regions of the country were subject to the act’s provisions.  The provision was extended for 25 years more both in 1982, and again in 2006.

Chief Justice John Roberts during arguments about the case had said that racial disparities in voting have vanished; minorities hold office in unprecedented numbers. And section 5 “authorizes federal intrusion into sensitive areas of state and local policy making that imposes substantial federalism costs.”  The question boils down to the idea that has the country changed enough in its racial beliefs that claims of discrimination can be rendered moot?  If that is the case then the federal reach into state’s voting procedures can be considered an overreach.  If not, then the Federal authority to intervene in the states to uphold access to the polls regardless of race is a necessity.

Nine states out of the ten for whom Section 5 applies in its entirety are south of the Mason-Dixon line.  Of the ten states where anti-black stereotypes are most common, based on data from the National Annenberg Election Survey, six in the South are subject to Section 5 requirements.  The requirements definitively target a certain region, which is steeped in a history of discrimination.   But, with the changing population and voter turn-out rates, states in the southeast are claiming discrimination coming from the federal government.

The nation is definitely changing and the statistics are causing an uptick in protests regarding Section 5.  The Economist notes a report released earlier this month by the Census Bureau found that in 2012, for the first time, voting rates of black Americans exceeded that of whites: 66.2% of eligible black voters cast ballots in the last presidential election, compared with 64.1% of whites (in 2008, the numbers were 64.7% of blacks and 66.1% of whites).  Statistics, that in combination with the statements made by some of the Supreme Court Justices has caused a stir amongst defenders of the law.  Chief Justice John Roberts, though while speaking on a school segregation case, said that “the way to stop discrimination on the basis of race, is to stop discriminating on the basis of race.”  Justice Antonin Scalia took that reasoning much further in his accusation against Congress.  Referring to the near unanimous approval of the extension in 2006, said

“Now, I don’t think that’s attributable to the fact that it is so much clearer now that we need this. I think it is attributable, very likely attributable, to a phenomenon that is called perpetuation of racial entitlement. It’s been written about. Whenever a society adopts racial entitlements, it is very difficult to get out of them through the normal political processes.”

The National Review agrees with this kind of reasoning as to why the section of the act was reauthorized.  They claim that congress did not “make a disinterested determination” about reauthorization, rather they worked with the civil-rights establishment “to compile (concoct?) a record to justify that determination (sic).”  If the fear of being determined racist or even associated with those overtones, by making a decision on the value of federal intervention in these cases, interrupted the vote for what some Congressmen believed to be in the interest of the nation then it may be up to the court to stand up against popular beliefs.

The Heritage Foundation disagrees with the current need for Section 5 as well.  They cite a common critique of the section, in that it applies to jurisdictions based on 40 year old data.  Assuredly the country has changed in 40 years, of course that does not mean racial discrimination has been eliminated but it is not as prevalent as it was at the passing of the Act.  The Heritage Foundation also cites that if the preclearance requirement was based on voter data from the 2004 election, none of the states that are currently subject to its requirements would meet the prerequisites to be a part of Section 5.  Not only that, but as with the arguments in front of the Supreme Court advocates against reinstatement of Section 5  point to the voting rates in Mississippi and Massachusetts.  Chief Justice Roberts asked in the February hearings, “Do you know which state has the worst ratio of white voter turnout to African-American voter turnout?  ”He later answered his own question by naming Massachusetts as the culprit.

However, a fair amount of groups disagree with this reasoning and seek to prove the requirement as both effective yet still necessary.   In a brief filed by Eric Cunningham, the former County Commissioner of Shelby County, state that Section 5’s “current burdens remain justified by current needs.”  Therefore, they agree with Congress reauthorizing Section 5 for 25 years more in 2006, and that it should not even be discussed in the Supreme Court.  Though, the brief admits that filing every election law to the Department of Justice does induce an abundance of federalism.  That is forgiven due to the goals of the Post-Civil War amendments which granted the “expansion of Congress’ powers with the corresponding diminution of state sovereignty found to be intended by the framers.”

The preclearance restrictions do place a burden on the states affected by it, a heavy one at that.  For example, in order for Georgia to hold an election to replace a probate judge they had to vote on SB 32.  A bill that calls on the county to submit all their plans to the Department of Justice in order to create a non-partisan election in order to elect a probate judge.  That is in top of another bill SB 29  that creates a plan for the election of a Chief Magistrate Judge on the day of the General Election, which again has to be approved by the Department of Justice.  In all, the state of Georgia had upwards of 40 bills that were to be approved not only by their own legislature but as well as the federal overseers.

Alas, today’s ruling can substantially change the redistricting or voter identification laws in targeted Southern states.  Four states that were subject to its jurisdiction have attempted to pass Voter ID laws, and more may now be able to pass it without federal intervention.  The ruling was not made lightly, and both the Justice’s in favor, as well as those opposed stood behind strongly worded opinions.

Justice Ginsburg in her dissent recalled a speech my Martin Luther King Jr. Citing his infamous lines that “’the arc of the moral universe is long but ‘it bends toward justice, if there is a steadfast commitment to see the task through to completion.” Ginsburg said that commitment “has been disserved by today’s decision.” She astutely rejects the notion that since preclearance requirements have worked that means there is no longer a need for them, likening it to “throwing away your umbrella in a rainstorm because you are not getting wet.”

Chief Justice Roberts, recalling some of his previous opinions on the case, cited the changing of the country. He wrote in the majority opinion that

“In assessing the ‘current need’ for a preclearance system treating States differently from one another today, history since 1965  cannot be ignored. The Fifteenth Amendment is not designed to punish for the past; its purpose is to ensure a better future. To serve that purpose, Congress—if it is to divide the States—must identify those jurisdictions to be singled out on a basis that makes sense in light of current conditions. … Congress did not use that record to fashion a coverage formula grounded in current conditions. It instead re-enacted a formula based on 40-year-old facts having no logical relation to the present day.” (sic)

It is impossible to say with certainty that this decision will curb the access to fair elections for minorities in the previously maligned states, until at least there is at least an election cycle worth of data to judge from.  However, if the country progressed to a stage where it can hold elections fairly and without bias regardless of socioeconomic or racial status, then the law would have proven to be redundant and intrusive.   If it cannot do so, especially on the local level, it will have to be the duty of Congress to set forth requirements that reenact Section 5 in line with the standards expected by the Supreme Court.




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