Should the Supreme Court Strike Down the 'Preclearance' Provision of the Voting Rights Act? >
Voting Rights Act's 'Preclearance' Was Meant to be Temporary
The heart of the Voting Rights Act is Section 2—Section 5 was meant to be temporary
February 27, 2013
The Supreme Court should strike down Section 5, which was a temporary, emergency provision that was only supposed to last five years. The terrible conditions that justified Section 5 in 1965 do not exist today.
The right to vote of black Americans is not at stake. The heart of the Voting Rights Act is Section 2, which outlaws racial discrimination in voting. Section 2 is permanent and applies nationwide.
Section 5 was designed to stop discrimination by putting covered states into the equivalent of federal receivership. It requires covered states to get pre-approval from the federal government before they can make any changes in their voting laws. It was only a supplement to the main protection of Section 2
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But when the Supreme Court upheld Section 5's constitutionality in 1966, it acknowledged that Section 5 was an extraordinary intrusion into state sovereignty unprecedented in our history. It was upheld only because of the dire, "exceptional conditions" and "unique circumstances" that existed then.
As Justice Clarence Thomas noted in 2009 in another case, the "lack of sufficient evidence that the covered jurisdictions currently engage in the type of discrimination that underlay the enactment of Section 5 undermines any basis for retaining it."
The most visible evidence of this is the failure of Congress in 2006 to update the formula that triggers coverage under Section 5. There are nine states and parts of seven other states covered today based on low registration and turnout in the 1964, 1968, and 1972 elections.
[Read the U.S. News Debate: Should Photo ID Be Required to Vote?]
Thus, jurisdictions are covered today based on over 40-year-old data. Yet the disparity in the registration and turnout of black voters compared to white voters has virtually disappeared and in some covered states actually exceeds that of whites. They would not be covered today based on current registration and turnout levels.
Most importantly, as the Supreme Court itself previously acknowledged, "[t]hings have changed in the South … Blatantly discriminatory evasions of federal decrees are rare" and "minority candidates hold office at unprecedented levels."
The systematic, official discrimination that justified Section 5 has disappeared. The isolated cases of discrimination that still occur can be remedied by Section 2. As Justice Clarence Thomas has said, "[a]dmitting that a prophylactic law as broad as Section 5 is no longer constitutionally justified based on current evidence …is not a sign of defeat. It is an acknowledgment of victory."
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- Other Arguments
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#17042
No — Section 5 of the Voting Rights Act is needed now more than ever
WENDY WEISER, Director of the Democracy Program at the Brennan Center for Justice at New York University School of Law
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#25839
No — The Constitution requires the Supreme Court to side with Congress on the Voting Rights Act
DAVID GANS, Director of the Human Rights, Civil Rights, and Citizenship Program at Constitutional Accountability Center
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#34836
No — Preclearance provision of Voting Rights Act is still stopping discrimination today
WADE HENDERSON, President and CEO of the Leadership Conference on Civil and Human Rights
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#53447
Yes — The days of preventing minorities from voting are long gone
EDWARD BLUM, Visiting Fellow at the American Enterprise Institute
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#63146
Yes — Modern use of Section 5 raises serious constitutional concerns
ILYA SHAPIRO, Senior Fellow at the Cato Institute
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