Section Five: Dead or Alive?

Tomorrow the Supreme Court will hear a case called Shelby County v. Holder. The case will examine the validity of Section Five of the Voting Rights Act, and because the Court is currently dominated by conservatives, liberals worry that the VRA might essentially be gutted if/when the Court finds Section Five unconstitutional. Section Five has a long legal history, dating back to the Civil Rights Movement in the ’60s. The purpose of the VRA as a whole was to outlaw discriminatory voting practices that were used to disenfranchise or dilute the vote of African Americans. Section Five of the act required that any district with a history of racial voting discrimination must first attain approval (“preclearance”) from the Department of Justice before making any legislative changes that affect voting. As a consequence, any voting scheme that has the purpose or effect (measured by the non-retrogression principle) of discriminating against racial minorities can be rejected by the DOJ.

Practically speaking, this very rarely happens. Since the landmark case Allen v. State Board of Education (when the court decided that any structural change to an aspect of elections can be subject to preclearance), the section five claims that have been brought to court exploded. Since that case (1969), there have been over 2300 claims subjected to preclearance. Of those claims, less than 2% have been denied. When we discussed this case in our Election Law class, our professor said that this fact can be evaluated in two ways:

1. This is a watchdog with no teeth; the preclearance requirement is essentially pointless.

2. Alternatively, it’s a deterrent. People won’t try to pull the same tricks anymore, because they know that they can’t get away with it.

At worst, Section Five has apparently done nothing bad. At best, Section Five has helped tremendously in the struggle to give racial minorities adequate representation in the democratic process. So how could the Court rule that Section Five is unconstitutional? They’ll deny that Section Five has done nothing bad.

The argument is that Section Five places an unjustifiable burden on the states, and thereby compromises our system of federalism. The preclearance requirement presumes that states are guilty of racist behavior before they’ve had a chance to show that they’re not. The days of literacy tests and other racist disenfranchisement schemes are behind us, and to assume that Southern States will continue such shenanigans is only justified if evidence can be shown that the South is particularly deserving of the extra regulation. If this evidence cannot be shown, then the regulations should apply either to all states or to none. After all, Section 2 does most of the work in the VRA, so if Section 5 is truly unnecessary, it ought to be disposed of.

But this is the problem for the case. Chief Justice Roberts uses the analogy of an elephant whistle: “I’ve got this whistle that keeps away elephants. How do I know it’s working,” he jokes rhetorically… “See any elephants?” How can you prove that a deterrent is actually addressing a problem? You remove it, and face of one two consequences. Either there’s no problem. Or there is.