This month, the U.S. Supreme Court will hear arguments in a case from Shelby County, Ala., challenging the constitutionality of Section 5 of the landmark Voting Rights Act of 1965, our nation’s most effective tool in combating racial discrimination in voting.
The importance of this case can’t be overstated. At stake is the future of our democracy. The protections in the Voting Rights Act affect millions of African-American, Latino, Asian-American and American Indian citizens, who depend on it to ensure they can participate in our elections and have a voice in our democracy.
Section 5 requires those states and local jurisdictions proven to have the most egregious history of racial and ethnic voting discrimination to receive preapproval — or “preclearance” — from the U.S. Department of Justice or a federal court before making any election-related change, such as passing restrictive voter ID laws, limiting hours for early voting, or moving a polling place or redrawing city council districts.
Section 5 currently applies to all or part of 16 states, including Alabama and Mississippi, but also states like Arizona, New York and South Dakota. Like flu shots, Section 5 was prescribed to treat those places with the most aggressive strains of voting discrimination. Because changes must be precleared before implementation, Section 5 can actually prevent harm by stopping discriminatory laws before they take effect.
Shelby County, a largely white community outside of Birmingham, claims in its appeal to the court that Congress exceeded its constitutional authority when it reauthorized the Voting Rights Act in 2006 without changing the criteria used to determine whether a jurisdiction is covered under Section 5.
In essence, the county contends that it — and by extension other covered jurisdictions — have changed their ways to such a degree that citizens of color no longer need the protections provided by Section 5.
As civil rights leaders, we would be the first to acknowledge and applaud our nation’s significant progress in expanding access to the ballot box, thanks in large part to the Voting Rights Act. But while it may be tempting to think that voting discrimination is only a vestige of the past, the reality is that many state and local jurisdictions continue to pass laws and make rules that discriminate against voters based on race or ethnicity. And that’s especially true for places covered by Section 5.
Among the evidence presented to Congress when it reauthorized the Voting Rights Act in 2006 was a comprehensive study by the University of Michigan Law School that found that voting discrimination was far more common and severe in jurisdictions covered by Section 5 than in the rest of the country.
That study was part of the 15,000-page record that Congress compiled in the course of the 2006 reauthorization, which involved 21 hearings and testimony from more than 90 witnesses over a 10-month period. The record was so extensive that it was described by one court as “virtually unprecedented.”
Still a problem
Since the law’s reauthorization, we’ve witnessed many continuing efforts to disenfranchise minority voters in areas protected by Section 5, even in the most recent election. Among them:
u South Carolina enacted a discriminatory voter ID law that impacted voters like 82-year-old Hanna White, who was unable to get a state-issued ID because she’s never had a birth certificate. Because of Section 5 and litigation, South Carolina revised the law to create an exception for anyone with a “reasonable impediment“ to obtaining a government-issued photo-ID.
u A unanimous three-judge panel declared that the Texas redistricting plan drawn by the state legislature would have a discriminatory and retrogressive impact against minorities and affirmed that all three maps — the Congressional, state House of Representatives and state Senate — were in violation of Section 5. The court held that the legislature was motivated by discriminatory intent when it redrew districts that diluted minority voting strength.
u The Justice Department blocked a proposed redistricting plan in Natchez, Miss., that was made with a discriminatory purpose to deny black voters the ability to elect their candidates of choice.
As a nation, we aspire to the day when voting discrimination is a thing of the past, but that day has not yet arrived. Until it does, we need Section 5, which protects real people from real threats to their right to vote.
Benjamin Todd Jealous is president and CEO of the NAACP. Margaret Moran is national president of the League of United Latin American Citizens.