Constitutional Opinions

Attention Supreme Court

Section 5 of the Voting Rights Act was an ingenious solution in 1965. Its extension in 2006 was mere political expediency. Now the Supreme Court must decide whether that extension was also constitutional.

By 4.23.09

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The 1965 Voting Rights is the nation's most successful civil right law. On the eve of the Act's passage, massive disfranchisement of blacks in the South was a glaring blight on our democracy. Open discrimination plus literacy as a voter registration requirement combined to deny the first right of citizenship to a substantial segment of South's population. Years of traditional litigation under earlier civil rights statutes had hardly dented the problem. In Mississippi, the most extreme state, extensive litigation resulted in an increase in the percentage of blacks registered to vote from 4.4% in 1954 to 6.4% in 1965. With the Voting Rights Act, Congress by-passed litigation and Southern registrars by banning literacy tests and providing a federal administrative process to add blacks to the voting rolls in the states where disfranchisement was most severe. The Act's impact was immediate and dramatic. In September, 1967, just two years after the Act became law, nearly 69% of Mississippi's age-eligible blacks were registered, with the majority voluntarily added to the voting rolls by local registrars. By 2006, 76% of age-eligible African Americans were registered to vote in Mississippi, a percentage greater than that of white Mississippians, and also of blacks outside the South.

To guard against the possibility that officials might enact new devices to replace the literacy test or to otherwise interfere with blacks' access to the ballot, Congress included Section 5, a provision that required the offending states to obtain prior federal approval ("preclearance") before implementing any change in their procedures affecting voting. Long after blacks had achieved substantial registration parity with whites, Section 5 continued to require covered jurisdictions to obtain prior federal approval of voting changes ranging from moving a polling place across the street to redrawing of election district lines, as constitutionally mandated following each census. Initially adopted in 1965 as a temporary, five-year, measure, Section 5 was extended on several occasions, eventually continuing its special federal supervision until 2007, when it was scheduled to expire.

On very little evidence that it was still needed, Congress extended Section 5 in mid-2006, a year earlier than necessary in order to remove it as an issue in the fall elections. In its haste, Congress failed to adequately address what should have been the only issue that would justify continuing special supervision of these states for an additional 25 years. Were Section 5's draconian measures still essential for protecting minority voting rights in covered states? The answer should have been no. Section 5 was adopted in 1965 to address conditions that no one suggests exist today. In 2006, there was no credible evidence that the permanent provisions of the Voting Rights Act and other laws that apply nationwide were not sufficient protection for minorities everywhere.

Later this month, the Supreme Court hears arguments on the constitutionality of the 2006 extension. Hopefully the justices will come to understand that Section 5, once an essential and ingenious solution to an intractable problem, well before 2006 became a tool with which to manipulate and distort the political process in covered jurisdictions.

Even in 1965, when it was essential, Section 5 stretched notions of federalism. Today it remains the single most unusual federal law ever enacted. First, it is the only federal law limited to certain states. The formula for selecting the initial states was based on voter registration statistics from 1964 and was not changed in 2006. Thus these states will be subjected to 25 additional years of special supervision, not based on recent acts of discrimination, but on conditions which no one suggests exist today.

Second, Section 5 reduces "covered jurisdictions" to less than sovereign status by rendering unenforceable laws they enact, unless approved by an arm of the federal government -- typically the Department of Justice ("DOJ"). Third, Section 5 empowers DOJ to determine an aspect of a democracy second in importance only to the issue of who may vote -- the means by which the "governed" select those who "govern." Using this power, DOJ has re-ordered the basis of representation for all citizens of the covered states and has done so with limited judicial supervision and even less public awareness.

In 1965, five unique circumstances in states Congress targeted for the Voting Rights Act justified its unprecedented measures, including Section 5. In the absence of these circumstances today, the 2006 extension of Section 5 was unjustified and unconstitutional.

First, the problem of entrenched, widespread racial disfranchisement was largely limited to the South. Second, Southern blacks were outside the power structure, politically, judicially, economically, and socially, and thus were dependent on others to address the problem. Third, and perhaps the key factor in the constitutionality debate, existing federal laws providing traditional, fact-dependent judicial remedies had proven incapable of solving the problem and any remedy requiring adjudication was likely to be equally unavailing. Fourth, judicial remedies were more ineffective because their enforcement depended upon Southern federal judges, some of whom were unsympathetic or outright obstructionist. Fifth, Section 5's "freezing of voting laws" was essential to the success of other parts of the Voting Rights Act, which banned outright the chief disfranchising tool, the literacy test, which Congress justifiably feared might be replaced by alternative devices. Thus, Section 5 provided a partial stand-in for absent black legislators by assuring that black interests were considered when whites changed the rules.

Regardless of how challenges to the constitutionality of the Act were framed in 1965, the simple fact was that a means had to be found to guarantee blacks the opportunity to vote -- an essential step for the group's ability to fend for itself. Arguments that the Act "infringed state sovereignty" lacked legitimacy when made by jurisdictions that were systematically excluding a substantial segment on their citizens from the political process.

In 1965, it was a rare Southern county where even literate blacks were registered at rates comparable to those of whites and in many, no blacks were registered. Today, literacy tests are banned permanently. Surely there are very few places where black registration is not comparable to that of whites, or if not comparable, where there is credible evidence to suspect discrimination. No problem remotely comparable to the racial disfranchisement of the 1960s existed in 2006.

In 1965, the entire electoral process was controlled by whites. Few, if any, blacks worked in registration offices, served on registration boards or as poll workers. Certainly few were part of political parties' leadership. Few held positions of influence in the larger community, or had personal and financial resources to hold white political actors accountable. Black elected officials were virtually nonexistent. Thus, blacks could not observe, prevent, or address discriminatory practices. Obviously they could not assure that their legislative interests received the consideration their numbers should have compelled from the political process.

Today, it would be rare in a jurisdiction with even a modest black population not to find blacks fully involved in all aspects of the election process. In much of the South, African Americans dominate the Democratic Party, and enjoy public employment and the benefits of political patronage. Surely proportional election of African Americans is more common in legislative bodies at all levels than their absence.

In 1965, the Constitution and existing federal anti-discrimination laws were incapable of dismantling system-wide racial disfranchisement. The fledgling U.S. Civil Rights Division and the small number of underfunded civil rights organizations also had to fight discrimination in housing, education, and employment. Today, additional federal laws, including the permanent provisions of the Voting Rights Act, guarantee that all qualified citizens have access to the ballot, and that minorities have viable means to challenge other forms of voting discrimination. A well-funded section of the Civil Rights Division devoted exclusively to voting, the greater number of civil rights organizations, and many well-educated, well-positioned African Americans with the means to discover and address discrimination guarantee that these laws will be utilized. The vetting process for federal judges insures that they will be enforced. It is inconceivable that without Section 5, minority citizens would be without the means to guarantee the political influence their numbers fairly mandate.

Society has also changed. In 1965, the overwhelming majority of all adult residents of the South were natives of their state, and had lived their entire lives in a segregated, socially and economically stratified society. Racial disfranchisement was a "present and endemic evil." Many, indeed likely most, blacks of the day were its victims. Most white political leaders had at a minimum acquiesced in measures that limited black political influence, measures the local press all too often applauded. Gross malapportionment resulted in legislatures dominated by rural, and likely the most conservative, legislators.

Today, while the decrease varies by state, a larger percentage of the citizens of Southern states were born outside the state of their current residence. Only a very small percentage of today's population is both of an age (at least 66) and was in a place in 1965 (a Section 5 state) to have been either a perpetrator or victim of racial disfranchisement. Most of today's adults came of political age post de jure segregation and have become acculturated to an integrated society. Every person in office today was elected in an era of heightened public scrutiny of political "misdeeds" in general and of any that smacked of racial discrimination in particular. Today's press is more likely to erroneously see racial discrimination than to intentionally or inadvertently fail to reveal it. Voters, candidates, and elected officials have long adjusted to the presence of a highly cohesive, often highly vocal, bloc of minority voters. Per chance rural legislators remain more conservative, malapportionment no longer bolsters their influence. Indeed, many rural counties once strongholds of conservative whites are today represented by African Americans.

These changes do not mean that racial discrimination no longer exists in covered jurisdictions, or even that it is "no worse" there than elsewhere. It does mean that permanent laws of national application are completely sufficient to address such discrimination now and in the future. The role Section 5 was designed to play can be safely left to minorities themselves, who are politically sophisticated adults, no longer in need of a protective federal parent.

The eagerness with which Congress passed the extension can be attributed partially to the Voting Rights Act's deserved iconic status. Laudably, because of Section 5, particularly as stretched by DOJ, minorities were incorporated into the political process more rapidly than otherwise would have occurred. Supporters of the extension argued that without Section 5, these gains would be lost. Seemingly, Congress gave little thought to the logic of this contention. Moreover, had it given serious thought to how Section 5 actually works, it would have discovered that this device, adopted as a shield against discrimination, has morphed into a sword by which DOJ has imposed its limited notions of representation on covered jurisdictions.

Section 5's protection is "jurisdiction specific," not "victim-specific." Section 5 treats certain minorities as special wards of the federal government -- political children -- based not on their present or even past circumstances, but on their residence. An upper-class, Ivy League educated African American born in New Hampshire, who as an adult moves to an affluent Virginia suburb, is entitled to have DOJ protect him against the mere possibility his vote might be diluted. But the sharecropper grandson of a slave who moved from rural Mississippi to Illinois in the 1960s has to fend for himself if he becomes the victim of actual discrimination.

Section 5 treats the acts of a legislative body in a covered jurisdiction with suspicion, regardless of the body's racial make-up. When a racially diverse city council in South Carolina, elected with full minority participation, redraws its election districts in 2011, the new districts will be "suspect" until the city convinces DOJ otherwise. Election districts redrawn for any reason by an all-white legislative body in Michigan are deemed valid until a challenger proves otherwise in court.

Section 5 imposes a separate body of law on covered jurisdictions. It prevents a covered jurisdiction from implementing certain voting changes, even if it proves the changes satisfy anti-voting discrimination laws that apply nationwide. A Section 5 city that currently rotates the mayor's position among council members elected from single member districts very likely could not make the mayor a separate position, elected by all the city's voters, when the same change by a non-Section 5 city likely would survive a racial discrimination challenge. A Section 5 city may be forced to change its electoral system to one guaranteeing proportional representation or forgo an economically necessary annexation. An annexation made by a similarly situated non-covered city almost certainly could not be challenged successfully as discriminatory.

Had Section 5 been limited to preventing certain jurisdictions from adopting potentially disfranchising devices -- its initial purpose--its continued existence would be innocuous, its constitutionality notwithstanding. It was an early Supreme Court holding that Section 5 applied to constitutionally mandated changes in voting districts that gave DOJ the power to reorder the political process. Unlike a new registration requirement, which could be abandoned if DOJ objected, election districts must be redrawn after every census. Thus, when DOJ objected to redrawn districts, covered jurisdictions had to produce new ones until DOJ was satisfied.

Because DOJ could prevent implementation of redistricting plans, it was able to pressure covered jurisdictions to create majority-minority districts at every level of government and at all costs, which eventually came to include demands that they abandon, if necessary, traditional districting standards. These nationally recognized standards were designed to produce sensible districts in which voters, political organizers, and candidates could engage effectively in the political process in our representational system, which assigns seats to defined geographic areas.

Some of the more absurd districts created in the 1990s in response to DOJ demands -- districts that ran down interstates and resembled bug splats -- were successfully challenged as racial gerrymanders. A slim majority of the Supreme Court declared that Section 5 did not mandate such districts, but its ruling came too late to prevent the forced adoption of tortured districts by virtually all Section 5 jurisdictions. Moreover, the Court left many loopholes for compliant legislators to cooperate with DOJ, so much so that significant remnants of the actual districts found to be unconstitutional in the 1990s are still evident in districting plans today.

Districts grossly geographically distorted for any reason seriously undermine the political process for all participants. In non-Section 5 jurisdictions, traditional districting standards keep the natural tendencies of legislators to "gerrymander" for personal and partisan advantage in check. Seldom is a legislator in these states able to gerrymander his district sufficiently to long thwart organized efforts to defeat him. The association of Section 5 with more extreme, unconscionable, and disabling, geographic distortions of the electoral system is easily seen by a visual comparison of election district maps for Section 5 jurisdictions with those not covered. Compare, for example, the congressional districts Georgia adopted in 2002, several of which cannot be described in recognizable geographic terms, with those of, say, Ohio. Compare any non-Section 5 state's districting plans with Mississippi's current state house and senate districts, which would be in the running for the two most difficult jigsaw puzzles of the century.

If Section 5 is unnecessary and harmful, why did most senators and representatives of the covered jurisdictions vote for it? Were they and their elected colleagues at the state and local level looking for an opportunity to "reassert Jim Crow," but soul-searchingly voted for self-restraint? Did they believe that laws sufficient to protect minorities in Michigan were not adequate for their states, or would not be enforced by their federal judges? Did they believe their state's white voters required special supervision, and their African-Americans voters were so politically helpless as to need a special guardian?

Ironically, perhaps it is the ability to distort districts, initially coerced by DOJ, that provides one reason for these representatives' lack of opposition to the extension. Except for U.S. senators, most legislators in office in 2006 at all levels, were elected from single member districts, many of them geographically distorted. When initially forced to ignore districting standards to create minority district, affected legislators added distortions to protect their electoral prospects. DOJ's sole mandate was to protect minorities, which it equated with maximizing the number of minority districts. It had little interest in how the districts were obtained or whether legislators engaged in further self-protective gerrymandering.

Those subsequently elected in the distorted districts naturally thought they were perfect. Officials hooked on the personal benefits of no districting standards, for which Section 5 provided cover, could not be counted on to oppose extension. In 2006, Republicans believed they benefited from the overwhelmingly white districts left when minority voters were gerrymandered into districts "of their own." Educated by the last election, they may now realize that the danger of districts grossly distorted for partisan advantage is to tie their personal fate to the temporal popularity of their party. When election units lose their independent geographic identity (identities tied to counties, municipalities, neighborhoods, and regions, for example), much of the voter focus on individual representatives and candidates also is lost. In party primaries, candidates unable to identify issues of common interest to their constituents fall back on appeals to the parties' extremes. General election voters then are likely to vote their "default" partisan position for all but the most visible of offices.

White Democrats understood the cost to them of creating majority minority districts by any means possible, but to not support extension posed a greater risk. Senators had little skin in the districting game, but might be tarred by opposing extension.

The Court should not view the absence of meaningful opposition to extending Section 5 from covered jurisdiction as self-substantiating evidence of a continuing need for its extraordinary scheme. Political expediency, perceived self-interest, fear of being labeled anti-minorities, ignorance about Section 5's actual operation, and resignation to its inevitable passage are better explanations for the extension's easy passage than concluding that Congress carefully considered a well-supported record of abuse not susceptible to ordinary legal remedies.

In 1965, those who supported the unprecedented measures of the Voting Right Act displayed ingenuity and substantial courage. In 2006, no dire problem required ingenuity. Nor was courage necessary to jump on the extension steamroller. Few voters would notice if Congress extended Section 5, but the press would raise cane if it did not. Our politicians understood that the case for extension could be made in misleading sound bites, but the case against it required careful articulation to an audience actually interested in listening. When the Court considers the extension's constitutionality, hopefully the justices will weigh the consequences of leaving the political process of a substantial segment of the nation's electorate at the mercy of federal bureaucrats (and possibly co-opted legislators).

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About the Author

Katharine Inglis Butler is professor of law at the University of South Carolina.