On Wednesday the Supreme Court heard arguments in a case alleging that Section 5 of the Voting Rights Act is unconstitutional. The 1965 law is being challenged in the case Shelby County v. Holder, which argues that a provision in the law is no longer needed to ensure equal access to voting.
Section 5, the part of the law at the heart of Wednesday's case, requires local jurisdictions to obtain permission from the federal government before changing voting procedures. The law was originally designed to prevent discriminatory voting practices (such as literacy tests), redistricting, or polling place changes that could affect voter turnout. Section 5 was only initially to last five years, but has been repeatedly extended by Congress when a review of the evidence suggested disenfranchisement was still a problem. It was last extended in 2006, and required Alabama, Alaska, Arizona, Georgia, Louisiana, Mississippi, South Carolina, Texas, and Virginia; and parts of California, Florida, Michigan, New Hampshire, New York, North Carolina, and South Dakota to obtain preclearance before changing voting laws.
Jurisdictions that can prove voting discrimination has been absent for the past 10 years can "bail out" of Section 5, and be exempt from requiring federal approval of voting procedural changes.
The law was last challenged in court in 2009, when the Supreme Court ultimately upheld it. But Chief Justice John Roberts did write that Section 5 needs to be updated, which may weaken defense of the law in Wednesday's Shelby County v. Holder:
Things have changed in the South … The evil that Section 5 is meant to address may no longer be concentrated in the jurisdictions singled out for preclearance. 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. For example, the racial gap in voter registration and turnout is lower in the states originally covered by Section 5 than it is nationwide.
Opponents say the Voting Rights Act and specifically Section 5 infringe upon state sovereignty, and the South is still being unfairly targeted for racial discrimination that no longer exists. They say the fact that the country now have more than 10,500 black elected officials—including the president—shows the country has moved beyond racism in voting.
Yet others say things in the South and other places where Section 5 still applies haven't changed enough to warrant suspension of preclearance or the entire law. The NAACP Legal Defense Fund, which is arguing in defense of the Voting Rights Act, calls it "one of our nation's most effective civil rights laws:"
Comprehensive studies of case by case litigation under Section 2 of the VRA (a section covering all states), which compare jurisdictions that are covered by Section 5 with those that are not, strongly support Congress's conclusion that certain areas have worse records of voting discrimination than others.
In light of recent and intense efforts to restrict minority voters' franchise (including unfair redistricting plans, cutbacks in early voting, and discriminatory government issued photo I.D. laws), we need to do more, not less, to protect the right to vote.
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