Does Section 5 of the Voting Rights Act Still Work?
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Description
TThe approaching renewal date for section 5 of the Voting Rights Act (VRA) raises questions about both the purpose of the act at this point and the administrative mechanisms the act employs. The legislation was premised on a deep sense of national urgency over the exclusion of black Americans from meaningful political participation in significant parts of the country—those areas that fell with- in the newly created concept of section 5 covered jurisdictions. Section 5 placed political life in those jurisdictions under a form of administrative receivership and treated political activity within those areas as subject to a rebuttable presumption that the continued exclusion of blacks from meaningful political opportunity was the dominant feature of all political decisionmaking in those jurisdictions. The regulatory side of section 5 was based on novel administrative models that responded to the extraordinary sense of urgency over the continued exclusion of black Americans from the exercise of the franchise. First, the act was not a law of general application, but targeted at specified sections of the country based on the levels of political participation in the 1964 presidential election. Second, the act was directed at specific practices, most notoriously literacy tests, that could be “suspended”—in effect, prohibited—and removed as barriers to black electoral participation. Third, the law could build an administrative model around proposed changes to formal requirements for participation, such as voter registration eligibility requirements or poll sites or, after a time, changes in election systems. As is oft repeated, the act was successful beyond the scope of any other civil rights statute. So successful indeed, that if the same eligibility requirements had been applied to the 1968 election instead of the 1964 election, there would have been virtually no covered jurisdictions. Moreover, section 5 of the VRA continued to provide benefits for newly enfranchised black citizens, even after formal barriers were removed. The effect of preclearance was to provide a one-way ratchet for minority political gains. Particularly after the Court’s 1969 decision in Allen v. State Board of Elections (393 U.S. 544), section 5 provided oversight not only on the processes of registering and casting a ballot, but on issues such as annexations and the use of at-large election districts. In Allen, for example, the question presented was whether section 5 would be limited to the ability to cast a vote, or would reach the effectiveness of the vote. In extending the reach of section 5 to include the electoral prospects of minority-preferred candidates, the Court gave invaluable protection to fledgling minority political successes in the early stages of the civil rights era. As Pamela Karlan expressed it, “section 5 contains a natural benchmark that preserves the political gains minority voters have achieved through political or legal action”. That benchmark is “the status quo that is proposed to be changed” (Reno v. Bossier Parish School Board, 528 U.S. 320, 334). The benchmark was preserved by freezing in place local political arrangements and imposing exacting administrative review upon covered jurisdictions. In practice, section 5 coverage denied to local jurisdictions a customary range of political decisions—including districting, terms of office, and electoral systems—that were ordinarily subject to what Justice Souter would term the pulling and hauling of everyday politics (Johnson v. De Grandy, 512 U.S. 997, 1020). As the 2007 date for renewal emerges on the political landscape, it is worth reviewing the exceptional role of section 5 of the VRA. In light of the tremendous political gains for minorities covered by section 5, particularly southern blacks, it may be perverse even to question the need to extend section 5 after its current sunset in 2007. But, as courts reviewing section 5 have noted since its original implementation, the conditions for its success (and constitutionality) involve an intensely practical assessment of the justifications for displacing the normal functions of politics. Perhaps the most salient change in the forty-year history of section 5 may be found in the subject matter of controversy under the act. Whereas the early days of the act were directed to access to the ballot, increasingly the most visible and contested arena for section 5 has been the proper distribution of political power. For example, applying the “nonretrogression” standard of Beer v. United States, preclearance has emerged as a central factor in the decennial redistricting wars (425 U.S. 130, 141). It would indeed be an extraordinary stroke of fortune if the regulatory model developed for the exclusion of blacks from voting in the South in 1965 were to apply in full fashion to the very different set of concerns forty years later. Extraordinary, indeed. And it is my sense that the act is showing its age precisely because of the extraordinary success it had in overcoming the first-order barriers presented in the past. This chapter is focused on the question whether the evolution of politics since the last extension of section 5 in 1982 has altered the conditions for its continued utility as a first-order mechanism to oversee minority participation in the political process. The discussion primarily concerns the preconditions for the section 5 administrative approach to work and the substantial changes that have occurred since 1965. Secondarily, it revisits the type of regulation at stake under the VRA inlight of changed circumstances.
Source Publication
The Future of the Voting Rights Act
Source Editors/Authors
David L. Epstein, Richard H. Pildes, Rodolfo O. de la Garza, Sharyn O'Halloran
Publication Date
2006
Recommended Citation
Issacharoff, Samuel, "Does Section 5 of the Voting Rights Act Still Work?" (2006). Faculty Chapters. 937.
https://gretchen.law.nyu.edu/fac-chapt/937
