Section 5 of the 1965 Voting Rights Act (VRA) is being challenged before the U.S. Supreme Court and next week, the nine justices will hear oral arguments for and against the landmark legislation. Their decision could change the course of political history.
Section 5 of the VRA requires that many state and local governments, mostly in the South, to obtain permission from the Justice Department or from a federal court in Washington before making changes that affect voting. The act was most recently reauthorized by Congress in 2006, and after a 2012 election cycle rife with voter suppression efforts, that the Supreme Court took up the challenge at all is alarming for civil rights advocates.
The law currently applies to 16 states, the majority of which are in the South. According to The Nation’s Ari Berman, “The current campaign against the VRA is the result of three key factors: a Whiter, more Southern, more conservative GOP that has responded to demographic change by trying to suppress an increasingly diverse electorate; a twenty-five-year effort to gut the VRA by conservative intellectuals, who in recent years have received millions of dollars from top right-wing funders, including Charles Koch; and a reactionary Supreme Court that does not support remedies to racial discrimination.” And of the 11 formerly Confederate States, eight have passed new voting restrictions over the past two years.
To be clear, Section 5 is still very much needed to protect voting rights in communities of color. Striking it down would be a “radical judicial act,” Ryan Haygood, Director of the NAACP Legal Defense & Educational Fund, Inc.’s Political Participation Group told EBONY.com. “[The VRA] has been upheld 4 times and has been recognized for its central role as protecting the most vulnerable among us.”
“The Court’s own precedents goes to them upholding Section 5. [Striking it down] would be inconsistent with legal precedent and leave millions of minority voters vulnerable. We must resist the temptation to normalize radical outcomes.”
Section 5’s pre-clearance requirement along with Section 2’s prohibition against discriminatory voting practices make the VRA the “greatest piece of civil rights legislation ever passed. It is the check point in blocking measures before they have a chance to take root. The reality is that the VRA [and specifically Section 5] is concentrated in those places where there has been more discriminatory intent,” says Haygood.
There is no doubt that in the old Confederacy, discriminatory intent persisted for decades and even in the last election cycle, the Section 5 of the VRA was used to block discriminatory voting laws in Texas, South Carolina, and Florida. The VRA is in place when state laws are insufficient. Discrimination in Section 5 areas is much more pervasive and Haygood says, Section 5 is the necessary “strong medicine.”
Haygood says, “Section 2 of the VRA is like a sword, while Section 5 is a shield,” both working in different ways to ensure that every citizen can exercise their constitutionally protected right to vote.
The Supreme Court is expected to rule on Section 5 in June, and no matter how they rule: “We need election reform desperately. We need legislation that deals with long lines, increases opportunities for early voting, same day voter registration, and [restoration of voting rights] after a felony conviction, and we need to fully enforce the National Voter Registration and Help America Vote Acts.”
“The 2010 census told us a lot. By 2043, we will be a majority minority nation and we should embrace the growing diversity in our country. This is the growing electorate that is changing our country.” By upholding Section 5, the Supreme Court will ensure that this growing electorate is protected in the places with the longest history of discrimination. By striking it down, against precedent, the Court will expose these historically vulnerable communities and risk that the fundamental right to vote cannot be equally exercised.