- Jan. 16, 2014: Read our blog post about legislation to undo some of the damage done by the Supreme Court decision
This act flows from a clear and simple wrong. . . . Millions of Americans are denied the right to vote because of their color. This law will ensure them the right to vote. The wrong is one which no American, in his heart, can justify. The right is one which no American, true to our principles, can deny.
In the decades since, the Voting Rights Act has become the keystone in the arch of protection for people of color. Yet today some still seek to deny these Americans the right to vote. That can be seen in the many efforts at voter suppression during the 2012 presidential election.
During the current term, the Supreme Court will rule on a challenge to a key provision of the Voting Rights Act itself.
How the Voting Rights Act Works
Section 5 of the Voting Rights Act involves a process called “preclearance.” States and localities covered by Section 5 are barred from making changes in voting laws until the U.S. Department of Justice or a federal court determines that the changes do not have either the purpose or effect of discriminating against minorities.
AFJ, the Institute for Policy Studies and the NAACP have released a letter from Archbishop Desmond Tutu and 18 other prominent human rights leaders from around the world urging the Supreme Court to uphold the Voting Rights Act.
Opponents of the Voting Rights Act say Section 5 has outlived its usefulness. They say all of the wrongs have been righted.
That claim should have been dispelled by the concerted effort to deny poor people and minorities their right to vote in the 2012 presidential election. During that election African-American and Hispanic voters were more than twice as likely as white voters to have been forced to endure long lines at their polling place.1 In Arizona, the Maricopa County Board of Elections kept printing the wrong date on materials for voters – but only made the mistake on materials printed in Spanish.2 In Florida, Governor Rick Scott worked tirelessly to reduce voter registration and curb voting hours – an effort which four prominent current and former Republican officials say was a deliberate effort to reduce the minority vote.3
Those are just the most recent examples. In his majority decision upholding the act, Judge David Tatel of the U.S. Circuit Court of Appeals for the District of Columbia cited others, including:
- 1995: Mississippi tried to revive a dual registration system “initially enacted in 1892 to disenfranchise Black voters” and previously struck down by a federal court.
- 1998: After voters in Webster County, Georgia elect a majority-black school board for the first time, the county proposes to reduce the black population in three of the education board’s five single-member districts.
- 2001: Kilmichael, Mississippi abruptly cancels an election when “an unprecedented number” of African-Americans run for office.4
- 2004: Waller County, Texas tries to reduce early voting at polling places near a historically black university and threatens to prosecute students for “illegal voting,” after two black students announce their intent to run for office.
Some examples are even less subtle, like the legislators in Mississippi and Georgia who referred to plans increasing the number of districts with African-American majorities as the “n—er plan” and “n—er districts.”5
There is statistical evidence as well. Between 2000 and 2006, the Justice Department filed objections to change voting procedures that affected 660,000 minority voters. (See more data on the following page.)
Given the mass of evidence, it’s no wonder that, though the Voting Rights Act dates back to 1965, it was renewed by Congress in 2006 – by a unanimous vote in the Senate and with only 33 votes opposed in the House.
Stark statistical evidence of the continued need for the law
660,000 – Number of minority voters covered by Justice Department objections to proposed changes in voting procedures from 2000 to 2006800+ – Number of proposed voting changes withdrawn or modified after the Justice Department raised questions about them between 1990 and 2004.
653 – Successful cases brought under Section 2 of the act, (in which objections are filed after voting changes have been made) between 1982 and 2005
626 – Attorney General objections that blocked discriminatory voting changes from 1982 to 2004.
105 – Successful enforcement actions under the “preclearance” provision of the law between 1982 and 2004.
Source: Decision of Judge David S. Tatel, Shelby County v. Holder (No. 11-5256, United States Court of Appeals for the District of Columbia Circuit, May 18, 2012) p.41. http://1.usa.gov/SmN0jx
Opponents of the “preclearance” provision complain that it covers only some jurisdictions – mostly states in the Deep South. While that might have made sense in the 1960s, they say, the South has changed and the choice of what are known as “covered jurisdictions” affected by preclearance no longer makes sense.
There are two problems with this argument.
- Of course much has changed since 1965 – in large part precisely because of the changes brought by the Voting Rights Act itself. But there remains strong evidence that efforts to deny people of color the right to vote are significantly greater in jurisdictions covered by Section 5.For example, a comprehensive study looked at actions based on another part of the law, Section 2, which allows the government to sue to reverse a change after it’s taken place. That section applies nationwide. Yet between 1982 and 2004 there were four times as many successful enforcement cases under Section 2 in “covered jurisdictions” than in non-covered jurisdictions.
- The jurisdictions covered by Section 5 are written in law, but not chiseled in stone. The law includes mechanisms to remove places that no longer show a pattern of discrimination – and add places that do.Any jurisdiction that had not engaged in discriminatory voting practices for ten years can apply to federal court for exemption from Section 5.Since 1982, not one application for what is commonly called “bailout” has been denied.6 Shelby County Ala., which brought the case now before the Supreme Court, didn’t even try to “bail out” before bringing its challenge. Conversely, if a federal court finds a pattern of discrimination in places not originally covered by Section 5, the court can order those places included.
Section 2 Is Not Enough
Some opponents of the law also argue that since the entire nation is covered by Section 2, which allows the government to sue after a state discriminates against voters of color, there is no need for Section 5 as well.
But the Voting Rights Act was passed precisely because after-the-fact remedies were not enough. As Judge Tatel notes in his ruling, “lawsuits to enjoin discriminatory voting laws [after they take effect] are costly, take years to resolve, and leave those elected under the challenged law with the benefit of incumbency.”7
Citing previous cases, Judge Tatel also noted that “Prior to Section 5’s enactment, states could stay ahead of plaintiffs and courts ‘by passing new discriminatory voting laws as soon as the old ones had been struck down.’ But Section 5 ‘shift[ed] the advantage of time and inertia from the perpetrators of the evil to its victim.’”8
The question now is whether the Supreme Court will shift it back.
AFJ President Nan Aron was among the speakers at a rally supporting this landmark civil rights law. Watch a video of Nan’s statement:
There’s more from Nan, and other highlights from the rally in this video from The Leadership Conference for Civil Rights Education Fund and the NAACP Legal Defense and Education Fund:
Hart Research Associates, 2012 AFL-CIO Election Surveys, Nov. 7, 2012, http://bit.ly/RWgUce
 Fox News Latino, “Arizona Spanish Voter ID Cards Give Incorrect Election Date,” Oct. 17, 2012,http://bit.ly/10SIWLZ and Elise Foley, “Maricopa County Puts Out Another Spanish-Language Flyer With Wrong Election Date,” Huffington Post, Oct. 23, 2012, http://huff.to/10SJt0r
 Editorial, “Scott’s shameless voter suppression efforts,” Tampa Bay Times, Sept. 28, 2012, http://bit.ly/10SLIkn; Dara Kam and John Lantigua, “Former Florida GOP leaders say voter suppression was reason they pushed new election law,” The Palm Beach Post, Nov. 25, 2012, http://is.gd/qio9Md
 Decision of Judge David Tatel, Shelby County v. Holder (No. 11-5256, United States Court of Appeals for the District of Columbia Circuit, May 18, 2012) p.28. http://1.usa.gov/SmN0jx
 Ibid, p. 29.
 Ibid, p. 59
 Ibid, p.19
 Ibid, p.8.