In April 2010, Shelby County in Alabama filed suit in the U.S. District Court for the District of Colombia, challenging the constitutionality of Section 5 of the Voting Rights Act (VRA). Under Section 5, in order for a “covered jurisdiction” to make any change to its voting practices or procedures, it must first obtain “pre-clearance” from the Department of Justice (DoJ). Shelby, a covered jurisdiction under the VRA, asserts that Congress lacked constitutional authority when it reauthorized Section 5 for another 25 years in 2006. However, the District Court disagreed, upholding Section 5 as constitutional on September 21, 2011; and on May 18, 2012, the U.S. Court of Appeals for the District of Colombia Circuit affirmed that decision. But last Friday (November 9, 2012), the U.S. Supreme Court agreed to hear the case, granting Shelby’s petition for writ of certiorari. Hanging in the balance is a powerful weapon in the civil-rights arsenal, and an important protection for the voting rights of minorities in jurisdictions with a long history of racial discrimination.
For roughly a century, the guarantees of the Fourteenth and Fifteenth Amendments were essentially disregarded in many states, primarily because Southern legislators controlled Congress. It was not until 1957 that a watered-down voting rights bill was enacted, creating the Civil Rights Division of the DoJ and authorizing the Department, along with the Civil Rights Act of 1960, to file suit on behalf of disenfranchised citizens. In the seven years following the 1957 Act, the DoJ filed 71 voting rights cases, but the cases were extraordinarily time-consuming, the legal test was difficult to satisfy, and the victories were often pyrrhic. Furthermore, black registration in the South remained miniscule. In Mississippi, for example, between 1954 and 1964 black registration rose from 4.4 percent to only 6.4 percent.
It is interesting that this new lawsuit challenging the constitutionality of the VRA originates from Shelby County, Alabama, for it is due to events in neighboring Perry County and Selma County that brought about the VRA in 1965. In February 1965, in nearby Perry County, a group of African Americans organized a nighttime voting-rights march protesting the jailing of a local Southern Christian Leadership Conference official. Alabama state troopers responded to the protest with force, and some of the demonstrators fled to Mack’s Café, including Jimmie Lee Jackson. Upon entering Mack’s Café, Jackson, a 26 year-old farmer and woodcutter, came to the defense of his mother, Viola, and 82 year-old grandfather, Cager Lee Jackson, who were being beaten by Alabama law enforcement officials. Jackson was beaten and shot in the stomach by trooper James Bonard Fowler, and died in the hospital eight days later.
Jimmie Lee Jackson’s death is viewed by many as the catalyst for “Bloody Sunday,” the March 7, 1965 protest march from Selma County to Alabama’s state capital, Montgomery. On March 7, roughly 600 protesters were met on the Edmund Pettis Bridge outside Selma by state troopers, sheriff’s deputies, and “possemen” on horseback. Law enforcement officials fired tear gas into the unarmed crowd and charged the protestors, injuring many of them. But, unlike the nighttime voting rights march in which Jackson was killed, the media was at the scene on Bloody Sunday capturing the event. The events of Bloody Sunday were broadcast to a shocked nation, prompting nationwide revulsion, and in in the wake of national outrage over the events in Selma, President Lyndon B. Johnson instructed the DoJ to draft a more expansive voting rights bill. Wilson Baker, then Selma’s Director of Public Safety, later recalled asking then-Attorney General Nicholas Katzenbach: “What do you expect if the Voter [sic] Rights Bill passes?” “What do you mean if if passes,” Katzenbach replied. “You people passed that on that bridge. You people in Selma passed that on that bridge that Sunday. You can be sure it will pass, and because of that, if nothing else.” That bill ultimately became the Voting Rights Act of 1965.
As the Supreme Court recognized in South Carolina v. Katzenbach, “[t]he Voting Rights Act was designed by Congress to banish the blight of racial discrimination in voting, which has infected the electoral process in parts of our country for nearly a century.” Section 5 of the VRA is a vital component of the Act, providing, in pertinent part, that a jurisdiction must seek preclearance from the DoJ whenever it “shall enact or seek to administer any voting qualification or prerequisite to voting, or standard, practice, or procedure with respect to voting different from that in force or effect on [the date the jurisdiction became covered].” The current version of the DoJ’s Section 5 regulations, 28 C.F.R. § 51.13 (2006), provides the following examples of changes affecting voting:
- Any change in qualifications or eligibility.
- Any change concerning registration, balloting, and the counting of votes and any change concerning publicity for or assistance in registration or voting.
- Any change with respect to the use of a language other than English in any aspect of the electoral process.
- Any change in the boundaries of voting precincts or in the location of polling places.
- Any change in the constituency of an official or the boundaries of a voting unit (e.g., through redistricting, annexation, deannexation, incorporation, reapportionment, changing to at-large elections from district elections, or changing to district elections from at-large elections).
- Any change in the method of determining the outcome of an election (e.g., by requiring a majority vote for election or the use of a designated post or place system).
- Any change affecting the eligibility of persons to become or remain candidates, to obtain a position on the ballot in primary or general elections, or to become or remain holders of elective officies.
- Any change in the eligibility and qualification procedures for independent candidates.
- Any change in the term of an elective office or an elected official or in the officies that are elective (e.g., by shortening the term of an office, changing from election to appointment or staggering the terms of offices).
- Any change affecting the necessity of or methods for offering issues and propositions for approval by referendum.
- Any change affecting the right or ability of persons to participate in political campaigns which is effected by a jurisdiction subject to the requirement of section 5.
In most instances, whether a challenged practice involves a covered change is clear: if the change differs from the practices in effect on the triggering date for the jurisdiction’s coverage, preclearance is required. Initially, between 1965 and 1969, few jurisdictions sought preclearance of any changes at all. Since then, however, the number of requests for preclearance has skyrocketed, and today the DoJ estimates that it receives an average of 17,000 preclearance submissions per year. Nevertheless, the vast majority of these submissions receive preclearance. Between 1965 and 1980, for example, the Attorney General objected to fewer than three percent of all submissions.
Moreover, preclearance is required only of “covered jurisdictions.” The statutory formula of the VRA applies Section 5 to any “State or political subdivision” which satisfied the two elements of the trigger: (1) use of a test or device; and (2) low voter turnout. Under the initial formulation of the VRA in 1964, seven full states (Alabama, Alaska, Georgia, Louisiana, Mississippi, South Carolina, and Virginia), 26 counties in North Carolina, three counties in Arizona, one county in Hawaii, and one county in Idaho were designated for coverage. When the Act was amended in 1970 and 1975, many other jurisdictions, including three boroughs of New York City and the entire state of Texas, were brought within the special provisions of the VRA. Thus, although the core of the 1965 Act was stated in neutral terms, it managed to reach the Deep South and very few other jurisdictions.
Under the current version of the VRA, nine states, 54 counties (including 40 in North Carolina), and twelve municipalities or townships are considered “covered jurisdictions.” However, jurisdictions are not considered to be “covered” by the special provisions of the VRA in perpetuity. Covered jurisdictions can escape (i.e., “bail out”) from the suspension of tests or devices under Section 4 and the preclearance requirement under section 5 by bringing a declaratory judgment action in the United States District Court for the District of Colombia. In that action, for a jurisdiction to “bail out” it must demonstrate (1) compliance with the VRA’s requirements, (2) the elimination of procedures that inhibited or diluted equal access, and (3) “constructive efforts” to expand opportunities for political participation. According to the DoJ, approximately 12 jurisdictions have successfully used the bailout process.
Shelby County’s challenge to the VRA follows on the heels of Northwest Austin Municipal Utility District No. 1 v. Holder. In an 8-1 opinion (Clarence Thomas being the sole dissenter), the Court declined to address the constitutionality of Section 5, quoting Escambia County v. McMillan for the “‘well-established principle governing the prudent exercise of this Court’s jurisdiction that normally the Court will not decide a constitutional question if there is some other ground upon which to dispose of the case.'” Because the plaintiff in Northwest Austin described its constitutional challenge to the VRA as being “in the alternative” to its statutory claim that it had satisfied the “bail out” provisions of the VRA, the Court did not address the issue. The Court did, however, raise serious concerns about its constitutionality, hinting very strongly that Congress should change the law soon or risk it being declared unconstitutional: “The Act’s preclearance requirements and its coverage formula raise serious constitutional questions under either test.”
Since the Court decided Northwest Austin, Congress has failed to act. And while the Court did suggest that Section 5 might survive under the “rational basis” standard, as other commentators have noted, “to ask whether Congress had enough evidence in front of it to justify the burdens Section 5 imposes is to ask the wrong question.”
In Shelby County v. Holder et al., the Supreme Court will have an opportunity to finish what it hinted at in Northwest Austin: pull the trigger and declare Section 5 unconstitutional. In its petition for writ of certiorari, Shelby County argued that Section 5 is no longer needed because (1) there has been an increase in the number of minority elected officials, and (2) minority voter registration and turnout are approaching parity with the white population. In its brief in opposition to the petition, the government recognized that “[t]hese gains are important, but they are the very things that will be at risk if the Section 5 remedy is ended prematurely.”
The United States continues to require Section 5 of the VRA. Voters are racially polarized; legislators have directed their efforts at curbing non-existent problems like “voter fraud,” which have their most significant impact on poor and minority populations; and jurisdictions continue to redistrict political maps to discriminate against minority voters. These efforts have almost exclusively been driven by Republican politicians, but they should concern every American citizen who believes in free and fair elections in the United States. As Adam Serwer at Mother Jones wrote, “If the [C]ourt strikes Section 5 down, one of the most effective and important powers the federal government has for ensuring that the right to vote is not abridged on the basis of race will be destroyed.”