Section 5

By Mark Posner, Senior Counsel, Lawyers’ Committee for Civil Rights Under Law

Recently, Judge John Bates of the U.S. District Court in Washington, DC, ruled that a core provision of the Voting Rights Act of 1965 – the Section 5 “preclearance” requirement – remains a constitutional exercise of Congress’ anti-discrimination authority under the Fourteenth and Fifteenth Amendments. This was a major victory in our nation’s ongoing efforts to “banish the blight of racial discrimination in voting.”

This challenge to the constitutionality of Section 5 was brought by Shelby County, Ala., a largely white suburb of Birmingham. In rejecting the County’s arguments, Judge Bates agreed with an earlier unanimous decision, by a three-judge panel of the D.C. District Court (Nw. Mun. Util. Dist. No. One v. Holder, 573 F. Supp. 2d 221 (D.D.C. 2008)), which likewise upheld the constitutionality of Section 5, in a case brought by a local Texas utility district. That earlier decision, however, was vacated in 2009 when the Supreme Court decided that the utility district could pursue a statutory “bailout” from Section 5 coverage. Unlike the Texas utility district, Shelby County freely admitted that it has a recent history of voting discrimination that disqualified it from “bailing out.”

Section 5 requires states and localities with a history of discrimination in voting – mostly in the South and Southwest – to obtain federal preclearance before implementing any changes in a voting “standard, practice, or procedure.” Preclearance is obtained by demonstrating, either to the Attorney General or the D.C. District Court, that the change does not have a discriminatory purpose or effect.

Congress enacted the preclearance procedure in 1965 after it found that certain jurisdictions with a history of voting discrimination often were devising new discriminatory voting practices when old ones were struck down by the federal courts. Thereafter, Congress reauthorized Section 5 four times, in 1970, 1975, 1982, and, most recently, in 2006, each time finding that voting discrimination in the covered jurisdictions had remained high. Section 5 has prevented hundreds of discriminatory voting changes from going into effect, and has deterred countless others from ever being enacted.

In the Shelby County case, Judge Bates confronted the fundamental question of what legal standard should be used to determine whether, as Shelby County claimed, Congress had exceeded its authority in reauthorizing Section 5 for 25 years in 2006. Shelby County invoked recent Supreme Court holdings that, at least as to certain Fourteenth Amendment legislation, “[t]here must be a congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end.”  In so doing, the County proposed a standard that would effectively preclude Congress from renewing effective antidiscrimination laws. The United States and defendant-intervenors (represented by civil rights organizations and law firms, including the Lawyers’ Committee for Civil Rights Under Law, the ACLU, and the NAACP Legal Defense Fund) argued that, in its prior rulings in 1966 and 1980 upholding Section 5, the Supreme Court held that Congress may “use any rational means to effectuate the constitutional prohibition of racial discrimination in voting.”