The Voting Rights Act, Section 5

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One of the more controversial questions coming before the Supreme Court during the upcoming session figures to be the Voting Rights Act—specifically Section 5 of that law. I thought it would be a good candidate for discussion.

First, a review of what Section 5 actually does.

The Voting Rights Act is designed to protect American citizens’ right to vote. This means preventing unfair practices related to the voting process—including the disenfranchisement of minority voters through tricky means (e.g., located polling places in hard-to-reach areas, requiring ID, etc.).

Challenging a law under the VRA usually happens under Section 2. It’s important to remember that there’s no question that most of the VRA is going to be sticking around for a while (and probably forever). Regardless of what the Supreme Court decides re: Section 5, we’ll still have a legal avenue to challenge anything infringing on voting rights.

So what does Section 5 do, then, and why is it controversial? 

Well, the VRA was passed in 1965, when racist practices were rampant in certain areas of the country. Of course, some say they still are—and we’ll get to that shortly. Section 5 establishes that certain counties are considered “problematic”—that is, that they are particularly suspect for violations of the VRA. These problematic counties are required to submit to preclearance whenever they change their voting laws. So, if a district in Alabama moves its polling place to an all-white country club, for example, the change cannot take effect until its approved.

There are two ways to get approval. The first is through the Department of Justice. This is far and away the most common approach. Problematic districts submit their new laws and the bureaucracy process them (to simplify things), either granting approval or quashing them as illegal.

The other method, which is becoming increasingly popular, is to litigate the issue directly before a panel of judges taken essentially from the D.C. Circuit.

These preclearance rules are designed to prevent those who want to adversely impact the voting process from excluding anyone for any period of time. Especially back in 1965, this was especially important, because the victimized group had so little political power.

But what about today? Well, this is where the controversy arises. Many feel that the areas subject to preclearance are outdated. Is it still necessary to subject much of the south to these preclearance requirements? Is the racism still so bad there?

It’s easy to think of these questions as moot. After all, the VRA does provide for adding and removing districts from the “problematic” list. And besides, does it really matter if we subject some places to more circumspection that others, provided the end result is better guardianship of voting rights? These are the arguments those in favor of VRA Section 5 make—along with alleging that racist practices are still alive and kicking in problematic areas.

Whether unfair practices still exist is a fact-finding question that doesn’t have any real theoretical importance. I can’t imagine the Supreme Court finding that racism is dead vis-à-vis the voting process, but it is worth noting that our only black Justice, Clarence Thomas, apparently supports this conclusion.

A more interesting question is whether the VRA leads to a just application of the law. In the canon of constitutional law, questions of over- and under-inclusivity are considered during the adjudication process. In the case of VRA Section 5, it seems like a pretty sure thing that not every district subject to preclearance is actually problematic, and that some districts not subject to preclearance are problematic (if indeed unfair practices still exist).

A more nuanced way to approach this question is to look at whether enforcement of VRA Section 5 reflects real world rights violations or simply the VRA’s own structure. That is, does the VRA create a bias that propagates suspicion rather than responding to objectively unfair practices? Consider the following hypotheticals (which, unlike the country club example given above, I’ve completely made up):

Scenario 1: A district in Rhode Island moves the polling place serving a small town from a church located along the main street of town to a Knights of Columbus lodge about a mile away. The new polling place is easily accessible by car and has plenty of parking, but isn’t served by public transportation. There are no black members of the local Knights of Columbus. This Rhode Island district has a very small minority population, but also has very hotly-contested political races.

Scenario 2: The same facts as above, but in Alabama.

Reading the hypothetical above, you should have had some concerns about a new law that might disparately affect voters. Minority voters that could probably have easily reached the old polling place now might have some trouble voting. This is especially true if they rely on public transportation (which minorities, demographically, tend to do to a larger extent than whites). Also, while the minority population is small, it appears that they might still impact elections, giving political parties a motive to influence their voting habits. In reality, the impact might only really have a very small impact, but even that is important if the impact is a curtailment of constitutional rights.

Then again, there might be a legitimate reason for such a change. Maybe the old polling place wasn’t logistically fit to serve as a polling place—not enough room to line up, not enough parking, insufficient facilities, etc.

The point is that, in Rhode Island, this law would pass. Now, someone could of course challenge it under Section 2 of the VRA and maybe have it overturned if deemed discriminatory—remember that this is always possible—but, because Rhode Island isn’t subject to preclearance, at least initially no eyebrows would be raised.

Not so for Scenario 2. If this law was passed in Alabama, it would have a very real chance of being struck down before being implemented thanks to the preclearance process.

Is that appropriate? If we assume the facts are identical in Rhode Island and in Alabama, the justifications for the new polling place are just as valid in each place, right? So does the VRA just force the DoJ to be unduly critical, simply by bringing practices that would normally be fairly unassuming to the government under the premise that they’re likely to be discriminatory.

Well, maybe. It seems to me that the VRA should set standards for nondiscriminatory practices, and that preclearance should be a simple procedural tool for making sure that certain historically problematic places meet those minimum standards. In practice, I think it does in fact impose higher standards on those places, by drawing undue circumspection to those practices.

But maybe that’s a good thing. If there’s a history of racism and discrimination in a given district, perhaps it’s appropriate to be extra strict about any activity that’s even debatably discriminatory. This is an interesting philosophical approach, but legally it’s somewhat weak—the VRA doesn’t express any intention to set higher standards for any given area, just to pay closer attention to certain spaces to make sure they meet the same universal standards to which everyone is held. It begs the question: What is a higher standard? Obviously, no activity intended for discriminatory purposes is acceptable anywhere. But everything anyone does has a disparate effect on different demographics. Virtually any activity could be argued discriminatory under so harsh a standard—and that would be costly and silly.

As a political issue, it seems to me that many people will be unwilling to ever acknowledge that discriminatory practices have subsided enough to end preclearance. And they might be right not to! In any case, I can’t help feeling that such a declaration seems a ways off.

To close, let’s return to a question I asked earlier but didn’t answer: Why do we even care? Isn’t it better to pay special attention than too little attention? Well, keep in mind that voting is a locally- and state-governed practice, and the VRA gives the federal government the power to intervene. Where there are discriminatory practices to prevent, the Supreme Court finds this a compelling government interest, so the intervention is allowed—but this wouldn’t be the case if discrimination were found to be on the wayside. So it’s not simply a question of stopping discrimination, it’s a question of balancing anti-discriminatory safeguards and our basic governmental structure of federalism.

My projection? VRA Section 5 stands, but it’s a legally uninteresting opinion because the Court relies almost exclusively on fact findings, declining to opine on the value of Section 5 going forward.