by Ashley Matthews

This week, the topic of SCOTUSblog’s online symposium is the Voting Rights Act (VRA), but it’s one particular section of the 1965 legislation that has brewed a constitutional debate over 40 years in the making. From the Pro Publica blog:

A single provision of the Voting Rights Act of 1965 has been playing a key role on the election front this year. Section 5 has blocked photo voter-ID laws, prohibited reduced early-voting periods in parts of Florida and just Tuesday barred new redistricting maps in Texas.

For states and counties covered under Section 5’s jurisdiction, changes to voting laws can’t legally be enforced unless the proposed change is submitted for review to the Attorney General or after a lawsuit before the United State District Court for the District of Columbia. In order to be legally enforceable, the new voting law can’t deny or abridge the right to vote on account of race, color, or membership in a language minority group.

In 2006, Congress voted to extend the Voting Rights Act for another twenty-five years. In the 2009 Supreme Court case Northwest Austin Municipal Utility District No. 1 v. Holder, the Court declined to strike down the law but noted that it raised serious constitutional concerns.

Now, in South Carolina, a new law that would require a state-approved photo ID to vote prompted a Justice Department challenge. A 3-judge panel in Washington, DC is now considering whether the law will be allowed to take effect before November 6 election. Last month, a federal court struck down a similar law in Texas, ruling that it would harm the turnout from minority voters. In addition, voters who lacked proper documentation would have been required to pay a fee to obtain election ID cards – a provision the court called a “strict, unforgiving burden on the poor.”

Such blocks have many crying constitutional foul. Joshua Thompson, a guest contributor for SCOTUSblog, wrote earlier today about the burden of Section 5:

Given the rampant discrimination of the Jim Crow South, this burden seems quite reasonable.  Nevertheless, when the constitutionality of Section 5 was first brought before the Court in South Carolina v. Katzenbach in 1966, the Court called it an “uncommon exercise of congressional power” that was only justified by the “exceptional conditions” of the day.  Section 5 would not have been “otherwise appropriate” but for its structure targeting jurisdictions bent on “evad[ing] the remedies for voting discrimination” and violating the Fifteenth Amendment.

By targeting only those jurisdictions most defiant of constitutional protections, Section 5’s “burdens” were specifically tailored to its “needs.”  Fortunately, the snug fit between the burdens – the “uncommon exercise of Congressional power” – and the needs – eliminating pervasive discrimination throughout the Deep South – had a tremendous effect on the enfranchisement of black Americans.  Eliminating literacy tests, and requiring preclearance for the most discriminatory jurisdictions, immediately improved black enfranchisement.  Black voter registration in Mississippi, for example, jumped from seven percent in 1964 to sixty percent a mere four years later.

Thompson continues:

Alongside this sweeping cultural upheaval came scores of elected black officials, and the abandonment of the racially oppressive policies that once justified Section 5.  No jurisdiction imposes a literacy test today, or a poll tax, or a grandfather clause.  Today, as reported by the Northwest Austin Court, “[v]oter turnout and registration rates … approach parity.  Blatantly discriminatory evasions of federal decrees are rare. And minority candidates hold office at unprecedented levels.”   Section 5 was so effective that there is little to distinguish the covered jurisdictions of the Deep South from the non-covered jurisdictions in the rest of the country.  Allegations of discrimination are just as likely to come from non-covered jurisdictions, and “the racial gap in voter registration and turnout is lower in the States originally covered by § 5 than it is nationwide.”

Further, Section 5 is ill-suited to address discriminatory voting practices of today.  The systemic, race-based discrimination that made Section 5 practical in 1965 no longer exists.  Moreover, modern voting problems often arise from failing to change existing practices.  Voters suffer from more problems like long voting lines in minority districts, voter identification problems, poor ballot design, or outmoded technology than from active efforts by states to impose new, discriminatory practices.  But Section 5 obstructs change by requiring all covered jurisdictions to undergo a costly and burdensome administrative process in order to preclear any changes with the federal government.  This encourages jurisdictions to maintain their old, perhaps discriminatory, voting practices.

SCOTUSblog’s Online VRA Symposium offers many different viewpoints. What do you think about the applicability of Section 5 to today’s modern electoral climate?