America Has Changed, So Voting Rights Act Section 5 Is No Longer Constitutional

It is long past time to declare victory over Jim Crow and move on to a healthier stage of race relations, particularly with respect to how the American people elect their government representatives.


This term the Supreme Court has a chance to do that in a case examining the continuing constitutionality of an important but now outmoded part of the Voting Rights Act of 1965. Shelby County, Alabama is challenging Section 5 of the VRA, which requires that certain states and counties – as determined by a decades‐​old formula – receive approval (“preclearance”) from the Department of Justice or a federal district court in Washington before implementing any change to their election regulations, no matter how modest.


The county sued to resolve the “serious constitutional questions” noted by the Supreme Court in the last significant VRA challenge in 2009 – a case infelicitously named Northwest Austin Municipal Utility District v. Holder, or “NAMUDNO” – but the U.S. Court of Appeals for the D.C. Circuit ruled against it, over a heated dissent by Judge Stephen Williams. This lawsuit hinges on the validity of extraordinary federal power in a nation where massive racial disenfranchisement is, thankfully, consigned to history books.


Here’s the background: The Fifteenth Amendment grants Congress the power to craft “appropriate” enforcement legislation to secure the rights of all citizens to vote, regardless of race. Congress’s initial attempts to enforce those rights, however, were frustrated by tactics designed to avoid complying with a colorblind voting mandate. Congress thus enacted Section 5, meant to apply to jurisdictions with a history of disenfranchising racial (and later linguistic) minority voters. The Supreme Court upheld the measure against constitutional challenge in the 1960s but noted that its perverse and substantial costs to federalism and equal protection were justified only because of the “exceptional conditions” on the ground.


VRA enforcement went on to successfully defeat the systemic discrimination that had once justified Section 5. In 2006, however, after several successive reauthorizations – the last of which, in 1981, also made permanent a provision (Section 2) aimed at discrete instances of discrimination in voting – Congress reauthorized Section 5 for another 25 years. It did so without explaining why the covered jurisdictions had to be subject to such an intrusive process on the basis of an obsolete formula, particularly when all of the evidence showed that the goal of minority representation and access to voting was achieved (and indeed that black voter registration and voting rates were higher in covered jurisdictions than elsewhere).


Indeed, the 2006 revisions made matters worse, authorizing the federal government to reject any electoral changes in covered jurisdictions whenever they are believed to “diminish[] the ability of minority citizens … to elect their preferred candidate of choice” – which has been taken to mean the need to gerrymander to preserve majority‐​minority districts. Ironically, Section 5 has become an obstacle to racial integration because race‐​conscious districting balkanizes the population and marginalizes minority legislators.


Cato urged the Supreme Court to take the case and, now that it has, argues in an amicus brief that the Court should strike down Section 5 because it conflicts with the Fourteenth and Fifteenth Amendments, basic federalism principles, the administration of fair elections, and, perhaps most strikingly, Section 2. Section 5 can’t coexist with Section 2, which allows both federal prosecution and private lawsuits and is more than sufficient to remedy voter disenfrachisement. Beyond infringing on state sovereignty, the modern Section 5 creates a serious equal protection dilemma, mandating that covered jurisdictions factor race into their election laws even as the Constitution’s non‐​discrimination principles forbid such practices.


In short, Section 5’s extraordinary powers were justified only under exceptional conditions; the Voting Rights Act’s success in eradicating those conditions has happily obviated Section 5’s constitutional legitimacy.


The Court will hear Shelby County v. Holder on February 27, with a ruling expected in June.