Journalism in the Public Interest

Why the Supreme Court May Rule Against the Voting Rights Act

On Wednesday, the Supreme Court will hear arguments challenging Section 5 of the Voting Rights Act. Here’s why it matters.


For the second time in four years, the Supreme Court will consider a challenge to Section 5 of the Voting Rights Act. (Alex Wong/Getty Images)

This post is being kept up-to-date. It was first published on Dec. 10, 2012.

June 25, 2013: The Supreme Court ruled Section 4 of the Voting Rights Act, which determines which states must seek preclearance, was unconstitutional.

On Wednesday, the Supreme Court will hear arguments in Shelby County v. Holder, a case challenging the constitutionality of a key part of the Voting Rights Act of 1965. The cornerstone provision is known as Section 5, which requires some states and localities to get federal clearance before making any changes to their voting laws.

What is the Voting Rights Act? And why does it matter? Here's a quick guide to what could be, as the influential SCOTUSBlog put it, "one of the most significant rulings of the current term." 

What's Section 5 again?

As we've explained before, Section 5 requires nine mostly Southern states — Alabama, Georgia, Louisiana, Mississippi, South Carolina, Alaska, Virginia, Texas and Arizona — and areas of seven others to preclear any change to a voting law or procedure with the federal government.

This review is conducted by the Civil Rights Division of the Department of Justice or a panel of federal judges on the U.S. District Court for the District of Columbia. If a voting change hasn't been submitted for review, the change can be legally unenforceable.

Section 5, which was enacted by the original Voting Rights Act, was meant to address the systemic disenfranchisement of African Americans by state lawmakers in the South since the end of Reconstruction.

Under the provision, covered jurisdictions must prove that any proposed voting change doesn't have a discriminatory purpose or effect or would diminish minorities' ability to elect a favored candidate.

How were these states identified?

When the Voting Rights Act originally passed, the rubric to identify the original bad actors looked at racist voting practices like literacy tests and Census data indicating whether less than 50 percent of eligible voters voted in the November 1964 presidential election.

When Congress reauthorized the Voting Rights Act in 1970 for another five years, it mandated oversight of other states and municipalities with low voter turnout.

By 1975, when Congress extended the act for another seven years, the law was broadened to include discriminatory voting practices against language minorities. For example, states were flagged for offering ballots only in English where language minorities made up more than 5 percent of the voting-age population. (That's how Alaska, Arizona and Texas got federal oversight. It's also the reason why parts of Florida, Michigan, New York and South Dakota are included.)

In both 1982 and 2006, Congress extended Section 5 for another 25 years — without making any significant updates to the coverage triggers, or "formula" as it's called (In 1982, Congress also established standards to allow covered jurisdictions demonstrating good behavior to "bail out" from under federal supervision).

Right now, Section 5 isn't scheduled to expire until 2031 — which brings us to the current debate over its fairness and constitutionality in present-day circumstances.

How useful has Section 5 been?

Nearly everyone agrees that Section 5 once played a critical function to rein in recalcitrant state legislators determined to suppress the African American, and later on language-minority, vote.

It is its present application that's now in dispute.

"America is no longer a land where whites hold the levers of power and minority representation depends on extraordinary federal intervention," argues an amicus brief filed by the Cato Institute in the Shelby County case.

The kinds of voting law changes covered jurisdictions must submit for preclearance — back then, and still today — span large-scale changes like redistricting and voter ID laws to small things like changing a polling place or precinct, as this chart shows.

One way to look at the effectiveness of Section 5 is through the number of times the DOJ has requested more information from a jurisdiction that has submitted a voting change followed by a subsequent withdrawal of that proposal.

In a 2007 paper, Nathaniel Persily, a Columbia University professor of law and political science, concluded that since 1982, the DOJ requested more information from states or local governments 800 times, followed by the withdrawal of proposals in 205 of those instances.

"This represents a tiny fraction" of overall requests since 1982, Persily observes, "but it gives a sense of how many dogs did not bark as a result of the threat of a denial of preclearance."

Just this past year, the provision was the reason federal judges blocked voter ID laws in both Texas and South Carolina, voided new district maps in Texas and prevented early voting reduction of hours in parts of Florida, citing a potential adverse effect on minority voters.

In the past year, the Justice Department objected to a total 16 proposed changes under Section 5, according to a DOJ official.

Does this tell us that Section 5 remains a viable tool concerning these specific jurisdictions? It depends how you look at it.

"There's no question Section 5 covered the most egregious bad actors and the world looks different now," said Heather Gerken, a professor at Yale Law School who specializes in election law. "But the question is, why does the world look different? And in some ways we can't know because of the prophylactic rule."

So who's challenging Section 5?

Shelby County, Ala. In 2008, the city of Calera — located within Shelby County — redrew one of its electoral maps, bringing in hundreds of white voters and significantly decreasing the number of black voters, from 70.9 percent to 29.5 percent.

Since any change that would discriminate against minority voters violates the Voting Rights Act, the Justice Department stepped in and vetoed the proposed map. (The only black representative of the city council also lost his seat that election.)

The Justice Department also said the city relied on unreliable demographic data to justify the new map.

On April 27, 2010, Shelby County filed a lawsuit against the Justice Department in U.S. District Court for the District of Columbia, asking the court to declare Section 5 unconstitutional on its face – meaning, broadly applied, as opposed to just in the county's case alone.

As Reuters details, the case caught the attention of Edward Blum, a conservative advocate who persuaded Shelby County to file a suit, in turn connecting the county with lawyers who could handle an appeal all the way to the U.S. Supreme Court. Blum is also behind the recent Supreme Court challenge to affirmative action in public universities, Fisher v. University of Texas. 

After a lower federal court ruled against Shelby County, and the U.S. Court of Appeals for the D.C. Circuit upheld the decision on appeal, Shelby County did just that.

In July 2012, it appealed to the Supreme Court, arguing that Congress, in 2006, lacked sufficient evidence showing that "covered jurisdictions have a latent desire to discriminate that does not exist elsewhere in the country" when it reauthorized the Voting Rights Act.

Lawyers argue that Section 5 should be struck down because it relies on an outdated formula that unfairly singles out certain states, creates a burdensome requirement to clear every proposed voting law change and that the federal government has demonstrated a "needlessly aggressive exercise of preclearance authority."

Didn't the Supreme Court come close to striking down Section 5 before?

Yes. In a 2009 case called Northwest Austin Municipal Utility District No. 1 in Texas v. Holder, or NAMUDNO for short, the Court didn't address the constitutionality of Section 5 — but it did suggest how it might rule in the future.

"The evil that (Section 5) is meant to address may no longer be concentrated in the jurisdictions singled out for preclearance," Chief Justice John Roberts wrote in the majority 8-1 opinion. "The statute's coverage formula is based on data that is now more than 35 years old, and there is considerable evidence that it fails to account for current political conditions."

The 2009 decision also relaxed those "bailout" standards we've mentioned before.

Under this separate provision of the Voting Rights Act, states and localities can be "bailed out" from Section 5 coverage if they can show that in the last 10 years, they've maintained a clean record — in other words, that they've instituted no discriminatory voting practices or been issued any adverse judgments alleging voter discrimination.

But Blum, for one, says the bailout requirements are still very difficult to meet. "A city may draw an objection from the DOJ which makes the entire state ineligible to seek bailout for 10 years," he said.

So exactly how easy is it to bail out from Section 5?

Since 1967, several dozen localities have successfully come out from under Section 5 coverage. In the three years since NAMUDNO alone, more jurisdictions have requested and received bailout than between the years 1984 and 2009 — largely because the Supreme Court relaxed a standard.

Thus, any change since 2009 "has been for the better — i.e., consistent with the presumed goal of the Court in Namudno to enable jurisdictions to bail out from coverage," Gerry Hebert, an attorney who has handled a number of these bailout petitions, told ProPublica. "To the extent Section 5 is a burdensome intrusion and an infringement on states' rights, bailout not only lessens that burden but it can eliminate it altogether."

Some have accused the DOJ of deliberately relaxing its rate of bailout acceptance.

The state of New Hampshire, where 10 townships fall under the coverage formula, filed a bailout petition in November, becoming the first stand-alone state to do so. A decision is expected sometime next month.

How likely is it that the Supreme Court will strike down Section 5?

Many saw in the Court's 2009 decision an underlying message to Congress to act to amend the Voting Rights Act. Of course, that didn't happen.

Also, some wonder about a current coverage formula that doesn't include states like Ohio and the whole of Florida, places which came under fire this year for scaling back on early voting.

"If you don't have Ohio and Florida, it might suggest that the coverage formula is a little out of whack," said Rick Hasen, professor of law and political science at UC Irvine School of Law. "The way the Supreme Court federalism cases stack up, and the way the conservative justices view these cases, I'm predicting the Court will strike it down."

Gerken, the Yale Law professor, also speculates on why the Court's four liberal justices joined the 8-1 opinion in 2009 that so clearly expressed doubts about the law's constitutionality.

"Maybe they did it because they wanted Congress to do something, or maybe it was a deal to postpone the demise of the Voting Rights Act," she said. "If it was a deal, it seems likely the deal will not last beyond that one case."

What happens if the Supreme Court strikes down Section 5?

Some say it won't matter all that much, because under a separate part of the Voting Rights Act known as Section 2, parties can always bring a lawsuit challenging a discriminatory voting law or practice.

But under that provision, the burden falls on the plaintiff, rather than on the state or municipality, to show that a proposed change is discriminatory. This means litigation comes at a cost — the smaller the change, the less likely litigation may be pursued.

In his 2007 paper, Persily noted that lawmakers recognized the need to update Section 5 coverage criteria to include "the newest generation of voting rights violators," but that politics provided an impossible roadblock. When Congress last reauthorized the Voting Rights Act in 2006, it rejected multiple amendments to change and expand the law.

In the event the Supreme Court strikes down Section 5 next year, some question Congress' ability to go back to the drawing board.

"Assuming they strike it down, they'll obviously provide parameters that Congress could meet if it wanted to pass it again," Gerken said. "Whether this Congress is remotely capable of doing that is another question."

I am of the mind that this is a positive step. State Rights come to mind. There is also other things to consider. Both party’s are culpable in influencing gerrymandering of voting districts for gain, notice I said both party’s. The other day I caught a debate and a black woman made the argument that the VoterID controversy placed a stigma on African Americans in essences leaving folks to believe that African American’s were to stupid to take the steps to obtain, signup, in advance to vote as “white” people do. I think there is a point to her assertions.  I think on a fundamental level the smug liberal with his ducks in a row believe it to be their patronizing duty to take care. I strongly believe that the African American is well suited to take care of themselves in this regard. Remember it is in the self-interest of those who have derived power and money to keep the negative alive.

Here is what they left out…. This tells the story, why Bush was so bad at the end of his term. Some people aren’t aware of all of this. Don’t just skim over this, please read it slowly and let it sink in. If in doubt, check it out. The day the democrats took over was not January 22nd 2009, it was actually January 3, 2007… the day the Democrats took over the House of Representatives and the Senate, at the very start of ......the 110th Congress. The Democrat Party controlled a majority in both chambers for the first time since the end of the 103rd Congress in 1995. For those who are listening to the liberals propagating the fallacy that everything is “Bush’s Fault”, think about this: January 3rd, 2007 was the day the Democrats took over the Senate and the Congress. At the time: The DOW Jones closed at 12,621.77 The GDP for the previous quarter was 3.5% The Unemployment rate was 4.6% George Bush’s Economic policies SET A RECORD of 52 STRAIGHT MONTHS of JOB GROWTH Remember the day… January 3rd, 2007 was the day that Barney Frank took over the House Financial Services Committee and Chris Dodd took over the Senate Banking Committee. The economic meltdown that happened 15 months later was in what part of the economy? BANKING AND FINANCIAL SERVICES! Unemployment… to this CRISIS by (among MANY other things) dumping 5-6 TRILLION Dollars of toxic loans on the economy from YOUR Fannie Mae and Freddie Mac FIASCOES! Bush asked Congress 17 TIMES to stop Fannie & Freddie - starting in 2001 because it was financially risky for the US economy. And who took the THIRD highest pay-off from Fannie Mae AND Freddie Mac? OBAMA And who fought against reform of Fannie and Freddie? OBAMA and the Democrat Congress So when someone tries to blame Bush.. REMEMBER JANUARY 3rd, 2007…. THE DAY THE DEMOCRATS TOOK OVER!” Budgets do not come from the White House. They come from Congress, and the party that controlled Congress since January 2007 is the Democrat Party. Furthermore, the Democrats controlled the budget process for 2008 & 2009 as well as 2010 & 2011. In that first year, they had to contend with George Bush, which caused them to compromise on spending, when Bush somewhat belatedly got tough on spending increases. For 2009 though, Nancy Pelosi & Harry Reid bypassed George Bush entirely, passing continuing resolutions to keep government running until Barack Obama could take office. At that time, they passed a massive omnibus spending bill to complete the 2009 budgets. And where was Barack Obama during this time? He was a member of that very Congress that passed all of these massive spending bills, and he signed the omnibus bill as President to complete 2009. If the Democrats inherited any deficit, it was the 2007 deficit, the last of the Republican budgets. That deficit was the lowest in five years, and the fourth straight decline in deficit spending. After that, Democrats in Congress took control of spending, and that includes Barack Obama, who voted for the budgets. If Obama inherited anything, he inherited it from himself. In a nutshell, what Obama is saying is “I inherited a deficit that I voted for and then I voted to expand that deficit four-fold since January 20th.”

“America is no longer a land where whites hold the levers of power and minority representation depends on extraordinary federal intervention,” argues an amicus brief [14] filed by the Cato Institute in the Shelby County case.

Hmmmmm so affirmative action can also go… Make it so…

clarence swinney

Dec. 11, 2012, 11:10 a.m.

#1 Highest percent of workers in low pay jobs=44%
#2-Least tax on corporations as % of gdp
#3-Least tax (fed-state-local)on citizens as % of gdp=30%
#4 on Inequality from bottom 5 in 1980
What happened who is to blame?
David Jay Johnson reported on MSNBC that the average income of the bottom 90% has fallen back to the 1966 level in inflation adjusted dollars. The Minimum wage has declined the same.
A privatized system to redistribute upwards the top incomes zoom while middle class is stagnated in income and wealth.
It is outrageous not to tax those who have made ultra millions. Top 2% own 50% all financial wealth and get 30% all individual income. They includes incomes of 4000 Million 3000 Million, etc. One family own as as must wealth as bottom 90% of families.
10% own 73% net wealth—83% financial wealth and get 50 individual income.

Reagan began flush up with 60 tax cut for top. Bush increased it with huge tax cut for top.
Republicans are party of Spend but borrow let kids pay tomorrow. Democrats are the party of spend but get revenue(tax) to pay your way.

James Tetreault

Dec. 11, 2012, 12:46 p.m.

Observers from other nations were astonished when they saw that american voters were not required to show some kind of identification in order to vote.  As any child could see, it’s an invitation to fraud.  If the portion of section 5 prohibiting states from asking for some reasonable standard of identification is struck it will be a good thing.

They just had 141% turnout in St. Lucie Florida in the last election.  Not having to show some proof of who you are helps enable such outright fraud.

clarence swinney

Dec. 11, 2012, 4:17 p.m.

  Century Foundation had a great study. The corp. income tax is projected at just 1.5% of GDP this year. In 1952. the corporate income tax accounted for about one third of government revenues. Corporate America has devised complex tax avoidance schemes. Today Corporate supplies just less than 9% of today’s federal revenues.
  Between 2008 and 2011 many multinationals paid no corporate tax on profit in billions.
In 2011. the effective tax paid was 12.1% a 40 year low.
  America needs Tax Reform. Quick.

Someone please help me understand…

1. Only citizens can vote

2. Immigrants who become citizens must demonstrate proficiency in English.

3. What purpose, therefore, is served by burdening the taxpayer with the exhorbitant costs of multi-language balllots, voter guides, etc?

Kirk, you took a foreign language in high school, yes?  That’s proficiency.

Would you claim that you could understand a ten page referendum on an issue you haven’t really investigated prior to getting into the voting booth if it was only written in Spanish/French/German/whatever?

That’s why.

You spend the money so that you get an informed vote, rather than, say, all the Koreans in town being convinced by an influential community member to not bother reading it, just vote “No.”  You spend so much money so that the translations are unbiased.

James, the amount of non-ID fraud is inconsequential compared to the fraud that can happen in counting, especially where ballots aren’t on stored paper.  I’d be much more worried that votes are counted at all than a few Russians sneaking into Alaskan polling places.

Likewise with carving a district custom made to destroy an opponent’s voter base, which is actually on topic.

On the topic of redistricting, it’s sad that we need Section 5, not because of continuing racism (which seems to be on the rise everywhere), but that this is a manual process that humans direct.

Districts really should be mathematical.  Every ten years, we hold a census, which tells us the things that redistricting is supposed to take into account (population density, race, religion, income, and so forth).  The voting records exist per polling place to guess how neighborhoods vote.  We have simple algorithms to collect contiguous groups of similar elements.  We have simple algorithms to prevent biasing a sample in collection (n-dominance/k-percent, for example).

I don’t have the time to try it, but it should be pretty simple to give a precise measurement as to the prejudice or imbalance of a district.  Check the shape and demographic breakdown of the district against the same for the district and its neighbors, and you’ll see how well or badly it represents the region at a glance.

That should be how we take care of this, nation-wide, rather than allowing everybody to do what they want, except for some regions we declare inherently racist.

clarence swinney

Dec. 12, 2012, 10:06 a.m.

TOTAL——————————$1400 BILLION
President Obama is proposing to spend 8000B over ten years om all security
800 bases worldwide. Who can attack us? No one..Only “a “Terrorist can.
Why waste so much when Infrastructure is crumbling everywhere.
When Health Care cost is so severe.
When Education is too expensive.

If Section 5 is struck down, the Justice Department would have more resources to devote to Section 2 cases.

Consider that over 99% of voting changes submitted to the Justice Department for Section 5 pre-clearance are for routine changes (moving a polling place next door) that are uncontroversial. Yet Justice Department lawyers need to review every one.

Without this burden, the Justice Department can better aid those in all 50 states with their Section 2 cases.

clarence swinney

Dec. 13, 2012, 10:31 a.m.

Hedge Fund Manager Paulson made $3700 Million in 2007 and $5000 Million in 2010.
He had bet om Mortgage Defaults. AIG covered some of his large bets. They lost. We bailed them out
of gambling losses. His Tax Rate 15%. Union workers pay 28% Tax Rate.
Wall Street is involved in high speed gambling. The type that almost put us in a Great Depression.
When will Congress show courage and tax such gambling activities. UK has taxed them for decades with no ill effect. We need the revenue. Better to do that than cut entitlements. A few rich are involved versus 50 million. Will we ever learn?

As a disabled person I find discrimination in voting even though so called ” accessible” voting machines are available.  How?  Staff usually isn’t properly trained on the equipment and though I am blind I can hear the terror in their voices when i ask to use these accessible machines.  So, if this small bit of discrimination exists for me in almost every election then how much more does it exist for those who are minorities?  So called voter i.d. laws, the scaling down of early voting hours and the blantent expressions of republican Secretary’s of State how a state was supposed to be delivered to the Republican candidate because of their obvvious attempts to curb minority’s in the last election is more than enough evidence for me and should be for the Supreme Court as well to continue the voting right’s Act as is for many years to come.  it was only because of an super extraordinary turnout by minorities and supporters in general of the President and Progressive candidates that the President was able to win a second term and gains made in both the House and Senate by Progressive’s and Democrats.  I find it simply amazing that we are having to deal with these issues of discrimination in 2012 and have come to believe that it will be long after my lifetime before we, as a country get past looking at a person’s skin color, disability, ethintincity, etc in judgeing whether they are equal to ourselves.  Sad to know just how much we haven’t accomplished in the last 50 or so years.  Still, I must give credit and voice to the gains we have made and can only hope that those gains accelerate in both scope and volumne in the years ahead.

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