The following contribution to our Shelby County v. Holder symposium comes from Hans A. von Spakovsky, a Senior Legal Fellow at the Heritage Foundation. He is the former Counsel to the Assistant Attorney General for Civil Rights at the Justice Department and is the coauthor of Who’s Counting? How Fraudsters and Bureaucrats Put Your Vote at Risk (Encounter Books 2012).

One of the myths that some defenders of Section 5 of the Voting Rights Act seem to be trying to advance in the public arena is that the right to vote of black Americans is at stake. If Section 5 is found unconstitutional, they claim, the terrible conditions of the 1950s and early 1960s will return.

That is a ridiculous claim intended to scare the public and bamboozle the media. No serious legal scholar could make it.

Others claim that Section 5 is the “heart” of the Voting Rights Act and that the VRA cannot effectively survive without it. That is also a historically false claim. How could that be true, when Congress made clear that it considered Section 5 a temporary, emergency provision that would terminate after five years?

There is no question that Section 5 was an important part of the VRA when it was passed in 1965. It was intended to override a dependence on case-by-case litigation to stop discrimination by putting covered states into the equivalent of federal receivership. As the Supreme Court recognized in South Carolina v. Katzenbach in 1966, it was a “stringent” remedy “aimed at areas where voting discrimination has been most flagrant.”

But when the Court upheld Section 5’s constitutionality in Katzenbach, it also acknowledged that it was an “uncommon exercise of congressional power” that represented an extraordinary intrusion into state sovereignty unprecedented in our history. It was upheld only because of the dire, “exceptional conditions” and “unique circumstances” then present in the covered jurisdictions where official, systematic, and widespread discrimination existed.

But it is Section 2 that is the core provision of the Voting Rights Act. It is the permanent, nationwide ban on racial discrimination in voting that implements the protections of the Fifteenth Amendment. Section 2 gives both voters and the Justice Department an effective tool to stop voting discrimination. Section 5 was a temporary tool that was needed at the time to supplement the protections of Section 2, but the extraordinary circumstances that justified Section 5 in 1965 simply do not exist today.

Just four years ago, in Northwest Austin Municipal Utility District Number One (NAMUDNO) v. Holder, eight Justices questioned the continued constitutionality of Section 5. But Justice Clarence Thomas went even further and offered his conclusion that it was unconstitutional. In his dissent, he wrote the best summary of the constitutional problems with Section 5 that are now at issue in the Shelby County case.

Thomas outlined how Section 5 is a victim of its own success. The legal arguments that he lays out are the arguments that the Justice Department must overcome on February 27, when the Court hears oral arguments in this case.

There is no question that Section 5 “tests the outer boundaries of [Congress’s] Fifteenth Amendment enforcement authority.” We are a federal system, and state governments are independent sovereigns, not “mere provincial outposts subject to every dictate of a central governing authority” like the provinces of France.

The intrusion into state sovereignty created by Section 5 was allowed, however, because of the terrible history of the covered jurisdictions, which ranged from “coordinated intimidation and violence” against blacks to take away their right to vote to “more subtle methods” such as literacy, property, and good character tests. As Justice Thomas succinctly said, “by 1965, Congress had every reason to conclude that States with a history of disenfranchising voters based on race would continue to do all they could to evade the constitutional ban on voting discrimination.”

But that evidence is not present today, despite the faulty legislative record Congress tried to amass to justify its 2006 renewal of Section 5 for another twenty-five years. The Senate reported that between 1982 and 2004 the objection rate was only 0.74% out of 101,440 submissions. In the year before Section 5 renewal in 2006, there was only one objection by the Attorney General. As the brief filed by Shelby County correctly says, “the 2006 legislative record shows scattered and limited interference with voting rights, a level plainly insufficient to sustain Section 5.” And as Justice Thomas noted, the “lack of sufficient evidence that the covered jurisdictions currently engage in the type of discrimination that underlay the enactment of 5 undermines any basis for retaining it.”

The most visible evidence of this fact is Congress’s glaring failure in 2006 to update the triggering formula in Section 4(b) for coverage under Section 5. The most obvious symptom of voting discrimination was the shockingly low voter registration and turnout rates of blacks in the South, which the Katzenbach Court found ran about fifty percentage points behind whites. Thus, in 1965 Congress set the trigger for being a “covered” jurisdiction under Section 5 of having a test or device in place and registration and turnout of less than fifty percent in the 1964 presidential election; the 1968 and 1972 elections were added in subsequent renewals of the statute.

But as Justice Thomas pointed out in his NAMUDNO dissent, by 2004 and 2006, this disparity had virtually disappeared.  Indeed, blacks in some covered states were not only close to parity with white voters, but actually registered and turned out at higher rates than whites.

A study recently released by the PewResearchCenterfinds that nationally “[b]lacks voted at a higher rate [in 2012] than other minority groups and for the first time in history may also have voted at a higher rate than whites.” The majority opinion in NAMUDNO acknowledged that “[t]hings have changed in the South … Blatantly discriminatory evasions of federal decrees are rare”: not only do voter registration and turnout rates “now approach parity,” but “minority candidates hold office at unprecedented levels.” In fact, blacks in the covered state on average register and vote at higher rates than noncovered states.

Even some supporters of Section 5 have acknowledged the problems caused by Congress’s refusal to update the trigger formula to reflect current conditions. The reason that Congress did not do so, of course, is because no state would have remained covered under Section 5. Continuing coverage under Section 5 based on election data that is more than forty years out of date is irrational and potentially lethal to the legal question of its constitutionality.

And Congress compounded this problem when it broadened the scope of Section 5 by changing the legal standard for preclearance, making it even harder for jurisdictions to clear the Section 5 hurdle. Congress made the preclearance standard more difficult at a time when there is less evidence of voting discrimination than there has ever been. This aggravates the federal-state tension produced by Section 5 and has made race an even more predominant factor in the preclearance process.

The Justice Department has certainly not helped support the constitutionality of Section 5 when one looks at its enforcement history and the prior Section 5 cases it has lost. Courts have called its behavior “embarrassing” and “unapproved by Congress and unsanctioned by the courts.” That has not changed with its recent loss toSouth Carolinaover its unsustainable objection to the state’s voter ID law, or its patronizing objection to a change to non-partisan elections approved by black voters inKinston,North Carolina, because they would not know who to vote for without the party label next to the candidates’ names.

The supporters of Section 5 should take Justice Thomas’s admonition that “[a]dmitting that a prophylactic law as broad as 5 is no longer constitutionally justified based on current evidence of discrimination is not a sign of defeat. It is an acknowledgment of victory.”

Section 5 long ago accomplished its objective; it is past time for it to end. And the voting rights of all Americans nationwide will continue to be protected by the permanent, nationwide provisions of the Voting Rights Act.

Posted in Shelby County v. Holder, Featured, The Court and the Voting Rights Act

Recommended Citation: Hans von Spakovsky, Shelby County v. Holder: The Shelby County Section 5 showdown, SCOTUSblog (Feb. 15, 2013, 5:51 PM), http://www.scotusblog.com/2013/02/shelby-county-v-holder-the-shelby-county-section-5-showdown/