Supreme Court to Consider Fate of Pre-Clearance in VRA

November 13, 2012 10:54 am

by Stefan · 22 comments

So, quick history lesson. The South does not have a very commendable record of protecting the voting rights of African-Americans. Because of this, the Voting Rights Act included a Section requiring the Southern states (a body not co-extensive with those that have petitions to secede from the Union) to submit their maps to the Department of Justice before they went into effect.

This is Section 5 of the VRA, and Shelby County, Alabama, thinks it is unfair.

“Section 5 served a critical and laudable function 40 years ago, and the court held that it was constitutional then. But Section 5 is not justified now, and its re-authorization in 2006 was not constitutional. Section 5 currently serves only to allow federal bureaucrats to block good-faith and nondiscriminatory changes in state law and to impose unjustified costs on state and local governments,” said a statement issued by the office of Alabama’s attorney general.

What relevance does Alabama have now that they aren’t leading the BCS rankings? Well, Georgia, as you might have already suspected, is also on that list of 16 states that require Justice preclearance. Should SCOTUS knock out Section 5, what would it mean for Georgia?
Senator Jason Carter suggests it may be time for Section 5 to go:
“If what we have is a Voting Rights Act as it was applied by the Republican majority in Georgia, for example, to become a tool of establishing districts where Black people vote for Black people and White people vote for White people, then it has changed so much as to be unrecognizable,” he said.
from GPB
But would the end of Section 5 give rise to color blind districts? Or would it just get rid of a pre-textual argument for their creation?


I Miss the 90s November 13, 2012 at 11:07 am

I do not see how Alabama has a case here. Section 4 of the VRA provides for states the opportunity to opt-out of coverage of Section 5 by appealing to the DOJ. I do not think you can just look at Section 5 and claim it is unfair without first reading the whole act (something ideologues tend not to do) and recognizing that at anytime over the past 30 years Alabama and every other covered jurisdiction could show they stopped discriminating against minorities at the polls and in registration procedures.

I Miss the 90s November 13, 2012 at 11:09 am

Keep in mind that Virgina has already been releasing from pre-clearance, as have Sandy Springs, GA and Kings Mountain, NC.

Stefan November 13, 2012 at 11:37 am

I assumed they made an application and it was denied. I grant you, that doesn’t appear in the story, but I assume there would have been a defense made on that basis if so. I guess I will go read the briefs.

dsean November 13, 2012 at 12:09 pm

The pre-clearance requirement, either through petitioning the DOJ or the District Court in D.C. turns the Constitution on its head. States have the power to set and run elections (Art. 1, sec 4) and they are not simple functionaries of the federal government. The VRA was necessary as an exercise of Congress’ 15th Amendment powers to prevent black disenfranchisement, but is only justified by that concern. If Congress cannot legitimately claim that states are likely to return to their previous patterns, then the pre-clearance is no longer justified.

It’s important to note that the entire VRA is not subject to this action, only the burdensome pre-clearance requirement. If citizens, or the DOJ, believe that changes to election laws are discriminatory, they will still have the right to sue the state in federal court, much like they have over the voter ID laws that the DOJ pre-cleared under the previous administration.

Stefan November 13, 2012 at 12:27 pm

Excellent points, I should have made this clear. This is a challenge merely to pre-clearance section 5, not to section 2, which is the right of action.

ChuckEaton November 13, 2012 at 12:39 pm

Sec. 5 is an unconstitutional relic which has outlived its time. There was a time for it, as an emergency measure, when there was institutional suppression of black votes. That’s why it’s always been framed as a temporary measure, as it wouldn’t pass Constitutional muster otherwise. The problem is “temporary” keeps getting renewed into permanent.

It’s absurd to continue to punish a select few states, when no one remains in power who had anything to do with the institutional suppression of votes.

Harry November 13, 2012 at 1:58 pm

It gives them a good talking point, rather than discussing more relevant issues like purging the rolls of relocated and dead voters.

Stefan November 13, 2012 at 2:34 pm

Or we could stop using redistricting as a way of marginalizing the minority party. That’s something we should all get behind.

ChuckEaton November 13, 2012 at 2:57 pm

Perhaps, but since gerrymandering isn’t unique to Georgia, or Southern states, the argument doesn’t have much relevance to the Constitutionality of Sec. 5 and/or its selective application.

Stefan November 13, 2012 at 3:09 pm

It is part of the larger discussion though. The problem VRA section 5 sought to correct was drawing maps so as to exclude African American populations from representation, but it is emblematic of the larger problem where a party in power (be in Democrat or Republican, black or white) attempts to use the process as way of maximizing power rather than securing fair representation.

Josh McKoon November 13, 2012 at 3:02 pm

Here is what you need to know about Section 5:

First, the 1964 Presidential Election Map by county:

Then, the list of Section 5 jurisdictions:

Any questions?

Stefan November 13, 2012 at 3:14 pm

Fair enough. Senator, how do you think districts would have been drawn in the most recent reapportionment if Sec. 5 weren’t in effect? And do you think if Sec. 5 is struck down, Georgia will go through another round before 2020? (Texas showed you could do this).

benevolus November 13, 2012 at 8:45 pm

I guess I don’t get it.

Josh McKoon November 13, 2012 at 11:53 pm

There is an incredible correlation between jurisdictions that voted for Barry Goldwater and those deemed to require oversight under Section 5.

benevolus November 14, 2012 at 6:38 am

Like Alaska and Texas?

benevolus November 14, 2012 at 6:39 am

And Nebraska?

GB101 November 13, 2012 at 4:50 pm

Remember when Lynn Westmoreland pushed a vote to revise the act? The trigger for Section 5 is based on the elections of 1960 and 1964. I think Lynn’s amendment would have made it the most recent two elections. So if there is discrimination NOW, there would be pre-clearance. Instead, there is pre-clearance if there was discrimination a half century ago.

GB101 November 13, 2012 at 5:02 pm

“Those states that had less than 50 percent of the voting age population voting in 1960 and/or 1964 were covered in the original act. In addition, some counties and towns that have been found in violation of section 2 have been added. Some cities and counties in Virginia (see below) have since been found no longer to need Preclearance.”

This is just wikipedia, but it is a very good summary. This trigger is a little-discussed feature of the law that shows very clearly a grotesque intellectual dishonesty.

And just imagine what it will be like to hear the arguments in court when the gov’t tries to defend this absurdity.

SallyForth November 13, 2012 at 11:14 pm

But would the end of Section 5 give rise to color blind districts? Or would it just get rid of a pre-textual argument for their creation?
(1) It certainly couldn’t give rise to districts any more segregated than they presently are due to the application of Section 5. (2) It definitely would eliminate the subversive pre-textual argument for their creation, and hopefully lead to districts that are geographically coherent today.

Section V is indeed unconstitutional and has been disingenuously perpetuated under the ruse of being “temporary.” Anything 67 years old and renewed for at least 25 more is by no means “temporary” – just ask any 92 year old person.

@GB101, you bring out a very interesting point. That alone should force the SCOTUS to declare Section V null and void, even if there were not so many other reasons for doing so. It is far past time for all states to be treated the same, in order to be indeed a United States of America.

Harry November 14, 2012 at 12:04 am

It is far past time for all states to be treated the same, in order to be indeed a United States of America.

The dilemma is, so long as there is majority rule there will never really be protection of minority rights. This applies to states rights as with individual rights. It’s a problem of Democracy. We should practice a less unitary form of federalism.

GB101 November 14, 2012 at 7:51 am

I don’t know what effect overturning Sec. 5 would have on reapportionment. The VRA says “You can’t discriminate.” Sec. 5 says “Some of you can’t do anything until we tell you it’s ok.” One of the anythings is reapportionment, of course, and it is probably the biggest anything.

Over the decades since the VRA was passed, the Justice Dept. has applied the law so as to require states under Sec. 5 to create a maximum of “majority-minority” districts.

Drawing district lines so as to maximize majority-minority districts is something different, I think, than not nondiscrimination. However, I do not know what standard would be applied to determine what is discriminatory and what is not discriminatory in the absence of the system that has evolved since the act was passed.

SallyForth November 13, 2012 at 11:45 pm

Argh! Late at night, my fingers have the attention span of a cocker spaniel puppy. My brain and my hands disconnected on those numbers (it should have been 48 and 25, then 73) – but anyway you get my drift. Anything 48 or 73 years old doesn’t qualify as temporary either.

Please free Modify/Delete *sobbing*…….

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