The Fourteenth and Fifteenth Amendments to the U.S. Constitution, adopted in the aftermath of the Civil War, were designed to protect, among other things, the right of every eligible citizen to vote, free from racial discrimination. Notwithstanding those constitutional safeguards, measures designed to deprive minorities of that right — such as poll taxes, literacy taxes, and grandfather clauses — endured for another century. In early 1965, President Johnson announced that he was sending Congress a voting rights act, saying “many of the issues of civil rights are very complex and most difficult. But about this there can and should be no argument. Every American citizen must have an equal right to vote. There is no reason which can excuse the denial of that right. There is no duty which weighs more heavily than the duty we have to insure that right.” Soon thereafter, the Voting Rights Act of 1965 was enacted and is widely credited as the most successful civil rights law in American history.
Critical to the law’s success has been Section 5, the preclearance provision, which bars jurisdictions with flagrant histories of racial discrimination (“covered” jurisdictions) from adopting new election laws until they prove to the Department of Justice or a special federal court panel that the laws have neither a discriminatory purpose or effect. Section 5 effectuated a transformative burden shift — and it worked.
In the last few years, we have seen a new generation of voter-suppression tactics that again threaten to disenfranchise low-income voters, many of whom are minorities. They range from burdensome voter identification laws to unfair restrictions on early voting and voter registration, to discriminatory redistricting plans. Many of them have been taken in covered jurisdictions. In just the last few months, federal judges acting under Section 5 have invalidated as discriminatory a photo ID law in Texas, rules regulating voter registration drives in Florida and electoral districts drawn by the Texas legislature. South Carolina’s voter ID law has been rejected by the Justice Department and is now before a federal court panel in Washington.
Notwithstanding that Section 5 has been recognized as essential in the fight to combat voter discrimination, its constitutionality is now being challenged in several jurisdictions. Those suits follow the 2009 decision in NAMUDNO v. Holder, where the Supreme Court came within a whisker of finding Section 5 to be an unconstitutional and no longer necessary encroachment on state sovereignty, and left little doubt that the law is vulnerable to being invalidated. For those who claim we have moved beyond the challenges of 1965, these newly enacted voting barriers and the recent Section 5 decisions invalidating them provide the best possible demonstration that Section 5 remains a vibrant and necessary safeguard against those intent on suppressing the minority vote.
The constitutionality of Section 5 will likely be before the Supreme Court again soon. There are two challenges pending, with at least two more in the pipeline. But the record by which the Court will determine whether the original rationale for Section 5′s unusual restrictions — persistent discrimination by southern states against minorities attempting their exercise of voting rights — is the congressional record developed in 2006 when Section 5 was re-authorized for 25 more years. That record does not reflect the recent epidemic of voter ID laws and other restrictions enacted in covered and noncovered states in the past few years.
The ultimate survival of Section 5 — and, echoing President Johnson’s sentiments, the fulfillment of that sacred duty to insure an equal right to vote — may well depend on whether Congress will re-authorize it based on overwhelming new evidence of continued and creative efforts by covered states to suppress minority voting rights.