WSJ: Supreme Court Should Declare Section 5 Of Voting Rights Act “No Longer Necessary”

WSJ Editorial: Supreme Court Should Recognize Racial Progress In America By Declaring Section 5 “No Longer Necessary.” A Wall Street Journal editorial encouraged the Supreme Court to determine that Section 5 of the Voting Rights Act is “no longer necessary” due to “American racial progress,” highlighting the following example:

Sections 4 and 5 of the law require that nine states and parts of seven others (including the Bronx) get preclearance from the Justice Department or federal court to change their election laws. Such federal enforcement swept away poll taxes and other obstacles to voting.

The law quickly led to blacks registering in proportion to their population, and over time to many more elected black officials. In 1972 Alabama, 80.7% of whites were registered to vote compared to 57.1% of blacks. By 2004, 73.8% of whites were registered compared to 72.9% of blacks. By 2004 in Georgia, Mississippi and North Carolina, a larger proportion of black residents were registered than white voters. In that sense the Voting Rights Act is one of the most successful laws in American history.

The question in Shelby County v. Holder is whether such federal supervision over some parts of the country is still necessary amid so much racial progress. Congress originally set Section 5 to expire after five years. It was reauthorized in 1970 for another five years and has since become politically untouchable and was reauthorized in 2006 for 25 more.

But why should Mississippi be treated differently than Massachusetts if its practices show better racial outcomes? [The Wall Street Journal, 2/27/13]

But Congress Reaffirmed The Need For Section 5 During 2006 Reauthorization Vote

Vast Majority Of Lawmakers From Affected Jurisdictions Voted For Renewal Of Voting Rights Act In 2006. Congress overwhelmingly voted to reauthorize the Voting Rights Act in 2006; the Senate passed the law with a vote of 98 to 0, and the House passed it with a vote of 390 to 33. A New York Times editorial noted that House members from the jurisdictions covered by Section 5 of the Voting Rights Act “strongly supported the renewal: of 110 members from covered jurisdictions, 90 voted for reauthorization.” [The New York Times, 2/27/13; The Washington Post, 2/27/13]

Republican Rep. Chabot: Congress Gathered “Extensive” Evidence In Support Of Reauthorizing Section 5. Rep. Steven Chabot (R-OH) described in a recent amicus brief how Congress gathered evidence demonstrating the need for the renewal of Section 5 in 2006:

Congress was acting at the height of its constitutional powers both when it enacted Section 5 of the Voting Rights Act and when it reauthorized those provisions in 2006. During the reauthorization process, the House Judiciary Committee conducted 12 hearings, received testimony from 46 witnesses and compiled an extensive record to support its conclusion that Section 5 should be reauthorized. Consequently, I urge the Supreme Court to defer to the judgment of Congress and uphold this important provision in its entirety. [House Judiciary Committee, 2/1/13]

Evidence Shows Section 5 Is Effective At Stopping Discrimination In Covered Areas

Justices Noted That Affected Jurisdictions Account For Majority Of Voting Rights Lawsuits. The Wall Street Journal reported that Justice Sonia Sotomayor noted that Section 5 allowed the Justice Department to block 240 discriminatory voting laws in Shelby County, Alabama, the plaintiff of the case. The Journal also reported that Justice Elena Kagan “agreed, saying that while covered jurisdictions hold less than 25% of the U.S. population, they account for 56% of successful voting-rights lawsuits.” [The Wall Street Journal, 2/27/13]

Brennan Center For Justice: Thanks To Section 5, More Than 1,000 Proposed Discriminatory Voting Changes Were Blocked. New York University's Brennan Center for Justice released a fact sheet on Section 5, demonstrating that Congress was justified in reauthorizing the law in 2006 by noting how many possibly discriminatory laws it blocked since its previous renewal in 1982:

Section 5 is an essential and proven tool. Although progress has been made since the Voting Rights Act passed in 1965, voting discrimination still persists. Between 1982 and 2006 (when Congress overwhelmingly renewed the law), the Voting Rights Act blocked more than 1,000 proposed discriminatory voting changes. Without Section 5's protection, these changes would have gone into effect and harmed minority voters. [Brennan Center for Justice, 2/26/13]

Voting Rights Expert: Vast Majority Of Voting Rights Incidents Occurred In Areas Covered By Section 5. History professor and voting rights expert J. Morgan Kousser wrote in a Reuters op-ed that he had been “compiling a comprehensive list of voting rights incidents” under various sections of the Voting Rights Act, including Section 5, since 2009. He found that:

First, 90 percent of the 4,141 incidents and 93.4 percent of the 3,775 “successful” incidents - those that resulted in changes to election law that advanced minorities' voting rights - took place in the jurisdictions covered by Section 5. This may not be surprising, since 2,368 of the incidents were Section 5 objections or enforcement actions, or “more information” requests. These, by definition, can take place only in covered jurisdictions.

More instructive is the portion of the 1,256 successful Section 2 cases that arose in jurisdictions subject to oversight: 83.3 percent. Section 2 cases can be filed anywhere in the country. The number of successful Section 2 cases is far larger than that in the much-cited database compiled by Ellen Katz, a law professor at of the University of Michigan (which is subsumed in my list), and the proportion from covered jurisdictions is considerably higher than Katz found in published cases. This is because I included many unpublished cases that resulted in settlements, either in-court or out-of-court.

In other words, five-sixths or more of the cases of proven election discrimination from 1957 through 2013 have taken place in jurisdictions subject to Section 5 oversight - which would mean very skillful targeting for any government program. [Reuters, 2/15/13]

And Affected Jurisdictions Can End Section 5 Coverage By No Longer Passing Discriminatory Voting Laws

A Jurisdiction Can End Preclearance Requirements If It Demonstrates It Has Not Passed Discriminatory Voting Changes In 10 Consecutive Years. The Justice Department explains how an entity can seek relief from the preclearance requirements under Section 5 of the Voting Rights Act:

A jurisdiction seeking to “bailout” must seek a declaratory judgment from a three-judge panel in the United States District Court for the District of Columbia. On June 22, 2009, the Supreme Court held that any jurisdiction currently required to make Section 5 submissions may seek to “bailout” from coverage if it meets the statutory criteria set forth below.

The successful “bailout” applicant must demonstrate that during the past ten years:

• No test or device has been used within the jurisdiction for the purpose or with the effect of voting discrimination;
• All changes affecting voting have been reviewed under Section 5 prior to their implementation;
• No change affecting voting has been the subject of an objection by the Attorney General or the denial of a Section 5 declaratory judgment from the District of Columbia district court;
• There have been no adverse judgments in lawsuits alleging voting discrimination;
• There have been no consent decrees or agreements that resulted in the abandonment of a discriminatory voting practice;
• There are no pending lawsuits that allege voting discrimination; and
• Federal examiners have not been assigned;
• There have been no violations of the Constitution or federal, state or local laws with respect to voting discrimination unless the jurisdiction establishes that any such violations were trivial, were promptly corrected, and were not repeated. [Department of Justice, accessed 2/28/13]