(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?
Natasha Korgaonkar of the NAACP Legal Defense and Educational Fund told The Root, "Section 5 is a checkpoint for our country's democracy. It's the heart of [the] Voting Rights Act. All or part of the 16 states with the worst histories of voter discrimination have to prove their [new] laws are free of discrimination before those laws take effect.
"The way to understand Section 5 is if you think of it as a medicine," she added. "It makes sense for a medicine to go to certain places that are unwell. It seeks to change the places in America that are unwell because of voter fraud and suppression."
Brentin Mock, a reporter for Voting Rights Watch 2012 (a partnership between Colorlines.com and the Nation magazine), said that Section 5, while necessary, fails to address some of the problem areas of election 2012. "The voter suppression that was attempted in South Carolina, Texas, Mississippi and parts of Florida was combated with the help of Section 5. [But] the voter suppression in Ohio, Pennsylvania, Tennessee and most of Florida wasn't combated at all by Section 5 because those were not covered jurisdictions."
In other words, jurisdictions covered by Section 5 are added and subtracted every time the act is reauthorized. And the latter group of states that Mock mentions were not included in the 2006 reauthorization of the Voting Rights Act.
Nancy Abudu, a senior staff attorney with the ACLU Voting Rights Project based in Atlanta, makes the case that Section 5 is not prejudicial and that states and districts can petition at any time to be removed from the category of special oversight. She points to several jurisdictions that have successfully petitioned to be removed from the scrutiny of Section 5, including Sandy Springs, Ga., and several counties in Virginia. They approach the Justice Department and document the ways in which their voting practices have changed.
And it's not just about African Americans. In Texas, some districts made it harder for Latinos to vote for their preferred candidates. The ruling in Texas v. United States found that there was purposeful intent in denying Latino Texans the chance to vote for their candidates of choice.
Once again the Supreme Court will decide whether to change the law of the land. Election 2012 makes it clear that there is an ongoing pitched battle between politicians who favor voter suppression and citizens who want to make their voices heard.
Which remedies will make voting simpler and cleaner for all Americans? Despite the gravitas and power of the Supreme Court, U.S. voters and politicians may fight over this well past the next court decision.
Farai Chideya is a distinguished writer in residence at New York University's Arthur L. Carter Institute for Journalism. She is the author of four books and blogs at Farai.com.