Voting Rights: Why Section 4 Mattered

Without the key provision, the Supreme Court's decision has made Section 5 moot.

Activists hold signs supporting the Voting Rights Act. (Mandel Ngan/AFP/Getty Images)
Activists hold signs supporting the Voting Rights Act. (Mandel Ngan/AFP/Getty Images)

(The Root) — In the second explicitly race-related ruling this week, which legal analysts and Supreme Court observers have described as far more restrained than had been expected from the conservative-dominated court, the Supreme Court invalidated an essential portion of the Voting Rights Act. 

The court’s 5-4 decision voided parts of Section 4, which provided the formula — the guidelines — for the Voting Rights Act used to determine which states and communities are subject to extra federal election oversight called for in Section 5 of the act because of a history of or ongoing evidence of minority-voter suppression. 

The court’s Tuesday ruling did not declare Section 5 unconstitutional, as Alabama’s Shelby County and the conservative activists who took the case to court had hoped. Instead it called for Congress, which reapproved the Voting Rights Act in 2006 over the objections of some Republican members of Congress, to create a new formula that will determine which communities are subject to Section 5.  

So how did Section 4 and Section 5 work?

Section 5 of the 1965 Voting Rights Act, a provision often described by voting and civil rights advocates as the heart, soul and — when all else fails — the teeth of the law, essentially singled out states and counties with a history of extremely low rates of voter registration among eligible people of color. The states and communities with a particularly egregious history of minority-voter abuses or suppression, and those where less than half of eligible minority adults were registered to vote or actually participated in elections, were subject to a process known as preclearance. 

Until Tuesday, that meant these communities had to seek approval from a panel of three federal judges or the Justice Department for any planned changes to voting or elections practices. Both had the authority to approve, block or delay voting changes — adjustments as small as altering a voter-registration form or as large as shifting polling places, voting times or district lines — if the changes seemed likely to reduce minority-voter participation or political influence. 

Entire states — Alabama, Alaska, Arizona, Georgia, Louisiana, Mississippi, South Carolina, Texas and Virginia — were subject to Section 5. So, too, were certain counties in California, Florida, New York, North Carolina and South Dakota, as well as some communities in Michigan and New Hampshire. (Most of the South became subject to Section 5 in 1965; other areas were added later to protect Latino and Inuit/Native American voters.) Without Section 4, these states and communities may be no longer subject to additional oversight.

Over time, the work of preclearance moved away from well-known and seemingly archaic but still sometimes employed tactics such as voter intimidation and poll taxes. The three-judge panel and officials inside the Justice Department found themselves blocking state or county efforts to alter district lines, clump together large groups of inactive minority voters or disperse minority voters into new and mostly white, Republican-dominated districts where mathematically those minority voters had little chance of shaping election outcomes. 

Voter suppression, Attorney General Eric Holder said earlier this year, has become a more subtle business but one still capable of deeply damaging democracy.