The Voting Rights Act of 2006

On February 27, 2013, the U.S. Supreme Court heard oral arguments in a case challenging the constitutionality of an important provision of the Voting Rights Act of 2006. [1] This provision extended for 25 years a requirement in section 5 for certain states to obtain pre-clearance from a special federal court or the U.S. Department of Justice for any changes in their election laws.[2]

Before we discuss that argument, we will look at the Voting Rights Act of 2006.[3]

Its stated Purpose in Section 2(a) was “to ensure that the right of all citizens to vote, including the right to register to vote and cast meaningful votes, is preserved and protected as guaranteed by the Constitution.” The last reference, of course, included the Constitution’s Fifteenth Amendment: “The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any state on account of race, color, or previous condition of servitude.”

The 2006 statute did that by reauthorizing and extending for 25 years (until 2032) the following essential provisions of the original Voting Rights Act of 1965:

  • Section 2 forbids any “standard, practice, or procedure” that “results in a denial or abridgment of the right of any citizen of the United States to vote on account of race or color.” Applicable nationwide, section 2 enables individuals to bring suit against any state or jurisdiction to challenge voting practices that have a discriminatory purpose or result.
  • Section 5 (the focus of the current case before the Supreme Court) only applies to certain “covered jurisdictions” and “prescribes remedies . . . which go into effect without any need for prior adjudication.”  Section 5 suspends “all changes in state election procedure until they [are] submitted to and approved by a three-judge Federal District Court in Washington, D.C., or the [U.S.] Attorney General.”
  • Such approval or preclearance may be granted only if the jurisdiction demonstrates that the proposed change to its voting law neither “has the purpose nor . . . the effect of denying or abridging the right to vote on account of race or color.”
  • The “covered jurisdictions” subject to section 5 were identified in section 4(b), as subsequently modified, as any state or political subdivision of a state that “maintained a voting test or device as of November 1, 1972, and had less than 50% voter registration or turnout in the 1972 presidential election.”
  • Upon satisfying certain criteria a state or other jurisdiction could obtain “bailout” from section 5 or be subject to “bail-in” to such coverage.

The Voting Rights Act of 2006 was overwhelmingly adopted by the Congress: 98 to 0 in the Senate and 390 to 33 (with 9 not voting) in the House. In doing so, the Congress acted on the basis of a legislative record over 15,000 pages in length, including statistics, findings by courts and the Justice Department, and first-hand accounts of discrimination.[4]

Given this extensive record before Congress, Section 2(b) of the Voting Rights Act of 2006 contains the following extensive congressional Findings:

  • “(1) Significant progress has been made in eliminating first generation barriers experienced by minority voters, including increased numbers of registered minority voters, minority voter turnout, and minority representation in Congress, State legislatures, and local elected offices. This progress is the direct result of the Voting Rights Act of 1965.
  • “(2) However, vestiges of discrimination in voting continue to exist as demonstrated by second generation barriers constructed to prevent minority voters from fully participating in the electoral process.
  • “(3) The continued evidence of racially polarized voting in each of the jurisdictions covered by the expiring provisions of the Voting Rights Act of 1965 demonstrates that racial and language minorities remain politically vulnerable, warranting the continued protection of the Voting Rights Act of 1965.
  • “(4) Evidence of continued discrimination includes—
  • “(A) the hundreds of objections interposed, requests for more information submitted followed by voting changes withdrawn from consideration by jurisdictions covered by the Voting Rights Act of 1965, and section 5 enforcement actions undertaken by the Department of Justice in covered jurisdictions since 1982 that prevented election practices,such as annexation, at-large voting, and the use of multimember districts, from being enacted to dilute minority voting strength;
  • “ (B) the number of requests for declaratory judgments denied by the United States District Court for the District of Columbia;
  • “(C) the continued filing of section 2 cases that originated in covered jurisdictions; and
  • “(D) the litigation pursued by the Department of Justice since 1982 to enforce sections 4(e), 4(f)(4), and 203 of such Act to ensure that all language minority citizens have full access to the political process.
  • “(5) The evidence clearly shows the continued need for Federal oversight in jurisdictions covered by the Voting Rights Act of 1965 since 1982, as demonstrated in the counties certified by the Attorney General for Federal examiner and observer coverage and the tens of thousands of Federal observers that have been dispatched to observe elections in covered jurisdictions.
  • “(6) The effectiveness of the Voting Rights Act of 1965 has been significantly weakened by the United States Supreme Court decisions in Reno v. Bossier Parish II and Georgia v. Ashcroft, which have misconstrued Congress’ original intent in enacting the Voting Rights Act of 1965 and narrowed the protections afforded by section 5 of such Act.
  • “(7) Despite the progress made by minorities under the Voting Rights Act of 1965, the evidence before Congress reveals that 40 years has not been a sufficient amount of time to eliminate the vestiges of discrimination following nearly 100 years of disregard for the dictates of the 15th amendment and to ensure that the right of all citizens to vote is protected as guaranteed by the Constitution.
  • “(8) Present day discrimination experienced by racial and language minority voters is contained in evidence, including the objections interposed by the Department of Justice in covered jurisdictions; the section 2 litigation filed to prevent dilutive techniques from adversely affecting minority voters; the enforcement actions filed to protect language minorities; and the tens of thousands of Federal observers dispatched to monitor polls in jurisdictions covered by the Voting Rights Act of 1965.
  • “(9) The record compiled by Congress demonstrates that, without the continuation of the Voting Rights Act of 1965 protections, racial and language minority citizens will be deprived of the opportunity to exercise their right to vote, or will have their votes diluted, undermining the significant gains made by minorities in the last 40 years.”

PresBush signign VRAOn July 27, 2006, President George W. Bush signed this statute in a ceremony on the South Lawn of the White House (as shown in the photo to the left). Attending the event were Attorney General Alberto Gonzalez and other members of the Cabinet, the leaders of the United States Senate and House of Representatives, representatives of the Fannie Lou Hamer family,  representatives of the Rosa and Raymond Parks Institute, members of the Martin Luther King, Jr. family and  civil rights leaders, including Dr. Dorothy Height, Julian Bond (the Chairman of the NAACP), Bruce Gordon, Reverend Lowery, Marc Morial, Juanita Abernathy, Jesse Jackson, Al Sharpton and Dr. Benjamin and Frances Hooks.

On that occasion President Bush said, “By reauthorizing this act, Congress has reaffirmed its belief that all men are created equal; its belief that the new founding started by the signing of the [Voting Rights Act of 1965] . . .  by President Johnson is worthy of our great nation to continue.”

That original statute, President Bush continued, “rose from the courage shown on a Selma bridge one Sunday afternoon in March of 1965 . . . [when] African Americans . . .  marched across the Edmund Pettus Bridge in a protest intended to highlight the unfair practices that kept them off the voter rolls.The brutal response [to the marchers that day] . . . stung the conscience of a slumbering America. . . . One week after Selma, President Lyndon Johnson took to the airwaves to announce that he planned to submit legislation that would bring African Americans into the civic life of our nation. Five months after Selma, he signed the Voting Rights Act [of 1965] into law in the Rotunda of our nation’s capitol.”

President Bush recognized that in the “four decades since the Voting Rights Act was first passed, we’ve made progress toward equality, yet the work for a more perfect union is never ending.” By signing the Voting rights Act of 2006, President Bush concluded, we “renew a bill that helped bring a community on the margins into the life of American democracy. My administration will vigorously enforce the provisions of this law, and we will defend it in court.”

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[1] The 2006 statute’s correct title is the Fannie Lou Hamer, Rosa Parks, Coretta Scott King Voting Rights Act Reauthorization and Amendments Act of 2006, Pub. L. 109-246, 120 Stat. 577 (2006).

[2] The states now subject to section 5 are Alabama, Alaska, Arizona, Georgia, Louisiana, Mississippi, South Carolina, Texas and Virginia.

[3]  A prior post discussed the original Voting Rights Act of 1965. Other posts will discuss two other predicates for the recent Supreme Court argument: the previous Supreme Court case regarding the 2006 statute (Northwest Austin Municipal Utility District No. One v. Holder) and the 2012 decision of the U.S. Court of Appeals for the D.C. Circuit that is the subject of the that argument (Shelby County, Alabama v. Holder).

[4]  The 2006 Act also overruled two Supreme Court decisions interpreting the statute.

 

 

The Voting Rights Act of 1965

On February 27, 2013, the U.S. Supreme Court heard oral arguments in a case challenging the constitutionality of an important provision of the Voting Rights Act of 2006.[1] This provision extended for 25 years a requirement in section 5 of the original Voting Rights Act of 1965 for certain states to obtain pre-clearance from a special federal court or the U.S. Attorney General for any changes in their election laws.[2]

Before we review that oral argument, we will examine in separate posts four predicates for that argument.[3] This post will discuss the first of these predicates–the relevant substance of the original Voting Rights Act of 1965.[4]

This 1965 statute (as well as the 2006 statute) was enacted pursuant to Section 2 of the Fifteenth Amendment to the U.S. Constitution that provides, “The Congress shall have power to enforce this article by appropriate legislation.” That amendment, which was ratified after the Civil War in 1870, states in Section 1: “The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any state on account of race, color, or previous condition of servitude”

LBJ signing VRA65

The Voting Rights Act of 1965 is seen as a major accomplishment of the Congress and President Lyndon B. Johnson. (The photo to the left shows President Johnson signing the statute; immediately behind him is Rev. Dr. Martin Luther King, Jr.) It was adopted as a result of congressional recognition that case-by-case litigation over racial voting discrimination was slow, expensive and ineffective and that a stature was needed “to cure the problem of voting discrimination” and “rid the country of racial discrimination in voting,”  (South Carolina v. Katzenbach, 383 U.S. 301, 313, 315 (1966).)

The 1965 Act combined a permanent, case-by-case enforcement mechanism with a set of more stringent, temporary remedies designed to target those areas of the country where racial discrimination in voting was concentrated.

Section 2, the Act’s main permanent provision, forbids any “standard, practice, or procedure” that “results in a denial or abridgment of the right of any citizen of the United States to vote on account of race or color.” (42 U.S.C. § 1973(a).) Applicable nationwide, section 2 enables individuals to bring suit against any state or jurisdiction to challenge voting practices that have a discriminatory purpose or result. (See Thornburg v. Gingles, 478 U.S. 30, 35 (1986).)

Section 5 of the statute and the focus of the current case before the Supreme Court only applies to certain “covered jurisdictions” and “prescribes remedies . . . which go into effect without any need for prior adjudication.” (Katzenbach, 383 U.S. at 327-28.) Section 5 suspends “all changes in state election procedure until they [are] submitted to and approved by a three-judge Federal District Court in Washington, D.C., or the [U.S.] Attorney General.” (Northwest Austin Municipal Utility District No. One v. Holder, 129 S. Ct. 2504, 2509 (2009),

A “covered jurisdiction” seeking to change its voting laws or procedures must either submit the change to the Attorney General or seek preclearance directly from the three-judge court. If such a jurisdiction opts for the former and if the Attorney General lodges no objection within 60 days, the proposed law can take effect.(42 U.S.C. § 1973c(a).) But if the Attorney General lodges an objection, the submitting jurisdiction may either request reconsideration, (28 C.F.R. § 51.45(a)), or seek a de novo  determination from the three-judge district court. (42 U.S.C. § 1973c(a).)

Either way, preclearance may be granted only if the jurisdiction demonstrates that the proposed change to its voting law neither “has the purpose nor . . . the effect of denying or abridging the right to vote on account of race or color.” (Id.) This provision “preempted the most powerful tools of black disenfranchisement ,” resulting in “undeniable” improvements in the protection of minority voting rights. (Northwest Austin, 129 S. Ct. at 2509. 2511.)

The “covered jurisdictions” subject to section 5 were identified in section 4(b), as originally enacted, as any state or political subdivision of a state that “maintained a voting test or device as of November 1, 1964, and had less than 50% voter registration or turnout in the 1964 presidential election.” (Voting Rights Act of 1965, Pub. L. No. 89-110, § 4(b), 79 Stat. 437, 438.) Congress chose these criteria carefully because it knew precisely which states it sought to cover, those six southern states with the worst historical records of racial discrimination in voting: Alabama, Georgia, Louisiana, Mississippi, South Carolina, and Virginia.

In so doing, Congress recognized that these criteria for determining “covered jurisdictions” might have to be adjusted over time.

  • First, as it existed in 1965, section 4(a) allowed jurisdictions to earn exemption from coverage by obtaining from a three-judge district court a declaratory judgment that in the previous five years (i.e., before they became subject to the Act) they had used no test or device “for the purpose or with the effect of denying or abridging the right to vote on account of race or color.” (1965 Act § 4(a).) This so-called “bailout” provision, as subsequently amended, addresses potential over-inclusiveness of section 5, allowing jurisdictions with clean records to terminate their section 5 pre-clearance obligations.
  • Second, section 3(c) authorizes federal courts to require pre-clearance by any non-covered state or political subdivision found to have violated the Fourteenth or Fifteenth Amendments. (42 U.S.C. § 1973a(c).) Specifically, courts presiding over voting discrimination suits may “retain jurisdiction for such period as [they] may deem appropriate” and order that during that time no voting change take effect unless either approved by the court or unopposed by the Attorney General. (Id.) This judicial “bail-in” provision addresses the formula’s potential under-inclusiveness.

In South Carolina v. Katzenbach, the Supreme Court sustained the constitutionality of section 5, holding that its provisions “are a valid means for carrying out the commands of the Fifteenth Amendment.”  As originally enacted in 1965, section 5 was to remain in effect for five years. Congress subsequently renewed these temporary provisions, including sections 4(b) and 5, in 1970 (for five years), in 1975 (for seven years), and in 1982 (for twenty-five years).[5] The Supreme Court also sustained the constitutionality of each extension through 2007. (Georgia v. United States, 411 U.S. 526 (1973); City of Rome v. United States, 446 U.S. 156 (1980); Lopez v. Monterey County, 525 U.S. 266 (1999).)

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[1] The 2006 statute’s correct title is the Fannie Lou Hamer, Rosa Parks, Coretta Scott King Voting Rights Act Reauthorization and Amendments Act of 2006.

[2] The states now subject to section 5 are Alabama, Alaska, Arizona, Georgia, Louisiana, Mississippi, South Carolina, Texas and Virginia.

[3] The other predicates to be examined in separate posts are the Voting Rights Act of 2006; the 2009 Supreme Court decision regarding the 2006 statute (Northwest Austin Municipal Utility District No. One v. Holder); and the 2012 decision of the U.S. Court of Appeals for the D.C. Circuit, 2 to 1, upholding the constitutionality of the 2006 statute in the case now pending in the Supreme Court. (Shelby County, Alabama v. Holder.)

[5] The 1982 extension also made the provision for “bailout” from section 5 restrictions substantially more permissive.