The Voting Rights Act of 1965 (42 U.S.C. §§ 1973) is a landmark piece of federal legislation that outlawed discriminatory voting practices in the United States that had been responsible for widespread disenfranchisement of African Americans.
These discriminatory practices were, and continue to be, particularly prevalent in the southern states of Alabama, Florida, Georgia, Mississippi, Louisiana, South Carolina, North Carolina, Texas, Virginia; the western states of California, Alaska, and Arizona; and parts of the states of New York, Michigan, New Hampshire and South Dakota.
The Voting Rights Act of 1965 echoes the language of the 15th Amendment and prohibits states from imposing any "voting qualification or prerequisite to voting, or standard, practice, or procedure ... to deny or abridge the right of any citizen of the United States to vote on account of race or color." Specifically, Congress intended the Act to outlaw the practice of requiring otherwise qualified voters to pass literacy tests in order to register to vote, a principal means by which Southern states had prevented African Americans from exercising the franchise. The Act was signed into law by President Lyndon B. Johnson, who had earlier signed the landmark Civil Rights Act of 1964 into law.
The Act established extensive federal oversight of elections administration, providing that states with a history of discriminatory voting practices (so-called "covered jurisdictions") could not implement any change affecting voting without first obtaining the approval of the Department of Justice, a process known as preclearance. These enforcement provisions applied to states and political subdivisions (mostly in the South) that had used a "device" to limit voting and in which less than 50 percent of the population was registered to vote in 1964. The Act has been renewed and amended by Congress four times, the most recent being a 25-year extension signed into law by President George W. Bush in 2006.
The Voting Rights Act of 1965 is now again under attack, and it will be reviewed this term (OT 2012) by the Supreme Court of the United States in the case of Shelby County, Alabama v. Holder, Docket Number 12-96, from the D.C. Circuit Court of Appeals.
This latest saga in the assault on the Act started in April 2010 when Shelby County, Alabama (a largely white suburb of Birmingham) filed suit in federal court in Washington, DC asking that Section 5 of the Voting Rights Act be declared unconstitutional [Shelby County, Alabama v. Holder, No. 1:10-cv-00651 (D.D.C.)]. The county is claiming that Congress did not have the constitutional authority, in 2006, to reauthorize Section 5 for another 25 years.
Section 5 (Preclearance)
Section 5 of the Act requires that the United States Department of Justice, through an administrative procedure, or a three-judge panel of the United States District Court for the District of Columbia, through a declaratory judgment action "preclear" any attempt to change “any voting qualification or prerequisite to voting, or standard, practice, or procedure with respect to voting..." in any "covered jurisdiction."
The Supreme Court gave a broad interpretation to the words "any voting qualification or prerequisite to voting" in Allen v. State Board of Election, 393 U.S. 544 (1969). A covered jurisdiction that seeks to obtain Section 5 Preclearance, either from the United States Attorney General or the United States District Court for the District of Columbia, must demonstrate that a proposed voting change does not have the purpose and will not have the effect of discriminating based on race or color. In some cases, they must also show that the proposed change does not have the purpose or effect of discriminating against a "language minority group." Membership in a language minority group includes "persons who are American Indian, Asian American, Alaskan Natives or of Spanish heritage."
The burden of proof under current Section 5 jurisprudence is on the covered jurisdiction to establish that the proposed change does not have a retrogressive purpose.
Covered jurisdictions may not implement voting changes without federal Preclearance. The Justice Department has 60 days to respond to a request for a voting change. If the Justice Department or federal court rejects a request for Preclearance, the jurisdiction may continue the prior voting practice or may adopt a substitute and seek Preclearance for it. If the jurisdiction implements a voting change before the Justice Department denies Preclearance in contravention of the Act, the jurisdiction must return to the pre-existing practice or enact a different change.
On September 21, 2011, the U.S. District Court for the District of Columbia upheld the constitutionality of Section 5 of the Voting Rights Act against Shelby County's challenge. The Court held that Congress acted appropriately when it reauthorized the preclearance requirement of Section 5 in 2006. The opinion can be found here. An analysis of this opinion can be found here.
On May 18, 2012, the U.S. Court of Appeals for the District of Columbia Circuit affirmed the district court ruling, by a vote of two to one. The court summarized its decision as follows: “Congress drew reasonable conclusions from the extensive evidence it gathered and acted pursuant to the Fourteenth and Fifteenth Amendments, which entrust Congress with ensuring that the right to vote—surely among the most important guarantees of political liberty in the Constitution—is not abridged on account of race. In this context, we owe much deference to the considered judgment of the People's elected representatives.” The opinion can be found here.
Shelby County has asked the Supreme Court to hear the case. Our opposition to that request can be found here.
In essence, the key issue the Supreme Court will be revisiting in Shelby County, Alabama v. Holder is:
Issue: Whether Congress’ decision in 2006 to reauthorize Section 5 of the Voting Rights Act under the pre-existing coverage formula of Section 4(b) of the Voting Rights Act exceeded its authority under the Fourteenth and Fifteenth Amendments and thus violated the Tenth Amendment and Article IV of the United States Constitution.
[www.scotusblog.com/case-files/cases/ Shelby County v. Holder; campaignstops.blogs.nytimes.com/2012/11/14/ Is the Voting Rights Act Doomed?; "United States Department of Justice - Voting Rights Act of 1965". U.S. Department of Justice. 2006-03-20. http://www.usdoj.gov/crt/voting/misc/faq.htm. Retrieved 2008-08-29; "The Voting Rights Act of 1965". United States Department of Justice. http://www.justice.gov/crt/voting/intro/intro_b.php. Retrieved 2008-08-29;"The Voting Rights Act of 1965". U.S. National Archives. http://www.ourdocuments.gov/doc.php?flash=true&doc=100&page=transcript. Retrieved 2008-08-29; "Our Documents - Civil Rights Act (1964)". United States Department of Justice. http://www.ourdocuments.gov/doc.php?flash=old&doc=97. Retrieved 2010-07-28; "About Section 5 of the Voting Rights Act". U.S. Department of Justice.; http://www.justice.gov/crt/voting/sec_5/about.php. Retrieved 2010-07-28;"Bush signs Voting Rights Act extension: Historic 1965 law renewed for 25 years". Associated Press. NBC News. July 27, 2006. http://www.msnbc.msn.com/id/14059113/. Retrieved 2008-08-29.]
