SCOTUS to Review Section 5 of the Voting Rights Act

Does Section 5 of the Voting Rights Act encroach on States' Rights?
Tue November 13, 2012 5:07 am
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Texas Republicans might be pleased by the news that the Supreme Court will review Section 5 of the Voting Rights Act, which was signed into law by Lyndon B. Johnson in 1965. They’ve been looking for this fight for a long time. And while Texas isn’t the only state to cross swords with the feds over voting laws lately, the state’s high-profile and protracted court battles over voter ID and redistricting are a big reason that the Supreme Court is revisiting Section 5, which was renewed by Congress (and signed by George W. Bush) in 2006.

The constitutional question in the current case, which is Shelby County v. Holder, is whether Congress was within its rights to have done so, in light of the progress that has been made thus far. Understanding this requires some background. The Voting Rights Act bars states from passing voting rules that discriminate on the basis of race—intentionally or unintentionally. Section 5 holds that in certain states or parts of states with documented or prospective problems in that regard all of Alabama, parts of Florida any changes to the existing rules will be subject to “preclearance” by the federal government, to ensure that those changes don’t amount to discrimination.

It’s a federal restriction on state authority, that is, one which only applies to certain states. And while it’s broadly true that the states subject to Section 5 have a history of trampling civil rights, it’s not true that Section 5 simply applies to the former Confederate states. Texas, for example, was not among the states originally subject to Section 5, despite the fact that it was one of the five states that still had a poll tax in 1964, when the 24 th Amendment (which outlaws the poll tax) was ratified. Texas wasn’t covered by Section 5 until 1975, when Congress revised the formula that determines which states are covered, in an attempt to address any racial disenfranchisement that might

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