(The Root) — Section 5 of the Voting Rights Act says that certain jurisdictions can change their voting laws only with federal approval or by winning a court challenge. This part was first enacted in 1965 as a temporary law. It took a hard look at states and districts with low voter participation and regulations on the books that made it hard for citizens to register or vote.
While some entire Southern states, including Louisiana, have been covered by that section of the bill, there are districts in places as far-flung as North Dakota and New York that also have to meet this special criterion. The law has since been re-upped several times (most recently in 2006) and currently is authorized through 2031 … unless a forthcoming challenge before the Supreme Court changes the game.
Late last year the Supreme Court agreed to hear the case Shelby County v. Holder. In it, prosecutors in Shelby County, Ala., examined whether the 2006 reauthorization of Section 5 actually trampled on states’ rights granted by the 10th Amendment, which says, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” Lawyers are currently scheduled to begin their arguments late next month.
So is Section 5 of the Voting Rights Act an anachronism? When it was first enacted, black voter participation in some Southern states was less than 10 percent because of tactics including intimidation and literacy tests. The situation was very different in 2012, at least in terms of who made it to the polls.
As the Pew Research Center put it: “Blacks voted at a higher rate this year than other minority groups and for the first time in history may also have voted at a higher rate than whites, according to a Pew Research Center analysis of census data, election day exit poll data and vote totals from selected cities and counties.”
But the same black voters who exceeded turnout expectations faced huge struggles at the ballot box. In Florida, Gov. Rick Scott, a Republican, refused to extend early-voting hours. “Extend” might be the wrong way to put it, since the Republican-led Legislature had already cut the number of early voting days from 14 to eight.
People who typically might use early voting as a way to avoid the Election Day crush and get to work on time ended up waiting six or more hours to vote. The news organization Politico, which usually focuses on the minutiae of Beltway strategy, published a blistering piece by venerable reporter Roger Simon, calling out the GOP’s voter-suppression tactics, including in Florida.
To summarize: Black and other nonwhite voters are not nearly as vulnerable as they were when Section 5 of the Voting Rights Act was first written into law. They are better equipped to participate in the voting process — albeit in some cases despite their local governments rather than because of them. Granted, there are some federal efforts to protect voting rights — such as the Voter Empowerment Act (pdf), a bill introduced by Democratic members of Congress including Rep. John Lewis of Georgia and Rep. John Conyers of Michigan, which, if passed, is designed to ensure equal access to polling places and modernize the voting process.
That returns us, then, to the original question: Is it fair to hold some jurisdictions to a higher level of scrutiny than others? Is Section 5 of the Voting Rights Act an anachronism — and an unfair one at that?