* Voting Rights Act

Months after the nation witnessed Alabama state troopers attacking civil rights marchers in Selma in March 1965, Congress approved the Voting Rights Act. Lawmakers reasoned that it was needed because many state and local officials routinely discriminated against black Americans in the voting process, making it difficult for them to cast their ballots.

Echoing the language of the Fifteenth Amendment, the Act forbade states from enacting any “voting qualification or prerequisite to voting, or standard, practice, or procedure … to deny or abridge the right of any citizen of the United States to vote on account of race or color.”

Additionally, the Twenty-Fourth Amendment, which was ratified by the states in January 1964, had given Congress the power to abolish the imposition of poll taxes in federal elections.

In 1966 the U.S. Supreme Court upheld the Voting Rights Act in South Carolina v. Katzenbach, finding that Congress had “full remedial powers” to prevent racial discrimination in voting. Following the adoption of the Fifteenth Amendment in 1870, there was “unremitting and ingenious defiance in certain parts of the country,” the court stated. The Act constituted a “legitimate response” to the “insidious and pervasive evil” of various policies that had denied black Americans the right to vote since 1870. (Also in 1966, the court struck down state poll taxes in Harper v. Virginia Board of Elections.)

Section 5 of the Voting Rights Act relegates states and localities to second-class status by presuming they are too corrupt and racist to administer elections fairly. Before the passage of the statute, the burden was on victims to challenge discriminatory abuses, but Section 5 shifted the burden of cost and delay to government officials, the possible perpetrators of discrimination.

Section 5 requires state and local governments in certain parts of the nation to get federal approval — called pre-clearance — before implementing any changes they want to make in their voting procedures. Changes can include anything from moving a polling place to changing district lines in a county. The way the law is interpreted, even lowly bond referendums in affected areas require pre-clearance.

The section requires a state, county, or local government entity to demonstrate to federal authorities that the voting change in question does not have a racially discriminatory purpose and is not “retrogressive,” which means that it will not make minority voters worse off than they were prior to the change.

According to the Department of Justice, the states of Alabama, Alaska, Arizona, Georgia, Louisiana, Mississippi, South Carolina, Texas, and Virginia are covered by Section 5 of the Act.

In addition to those nine states, Section 5 covers various counties across the nation: four in California; five in Florida; three in New York (all within New York City); 40 in North Carolina; and two in South Dakota. It also covers two townships in Michigan and 10 townships in New Hampshire.

The areas regulated under Section 5 were overwhelmingly Democratic when the law was signed by President Lyndon B. Johnson on Aug. 6, 1965.

An argument can be made that the law was needed at the time to curb the influence of openly racist Democratic officials on the electoral process.

When LBJ signed the law, racial segregationists, overwhelmingly Democrats, ran most of the states affected by Section 5. Mississippi Gov. Paul B. Johnson Jr. (D), was one of them. Johnson in his stump speeches thought he was witty when he sneered, “You know what the NAACP stands for? Ni–ers, alligators, apes, coons, and possums.”

Other pro-segregation Democratic governors in power at the time were Alabama’s George Wallace and Louisiana’s John McKeithen.

According to The New York Times, “Section 5 … was originally scheduled to expire in five years. Congress repeatedly extended it: for five years in 1970, seven years in 1975, and 25 years in 1982. Congress renewed the act in 2006 after holding extensive hearings on the persistence of racial discrimination at the polls, again extending the preclearance requirement for 25 years.”

A Voting Rights Act provision related to Section 5 was Section 4, which determined which states would be required to receive clearance from the Justice Department or a federal court in Washington before they could make any changes at all — major or minor — to their voting procedures.

In June 2013, the Supreme Court struck down Section 4 in a 5-4 decision. As Chief Justice Roberts explained, the Court’s ruling was founded upon the fact that Section 4 was “based on 40-year-old facts having no logical relationship to the present day.” “Congress — if it is to divide the states — must identify those jurisdictions to be singled out on a basis that makes sense in light of current conditions,” Roberts wrote. “It cannot simply rely on the past.”

A New York Times report on the Court’s ruling said: “The decision did not strike down Section 5, but without Section 4, the later section [5] is without significance — unless Congress passes a new bill for determining which states would be covered.”

Section 2 of the Voting Rights Act allows congressional district boundaries to be redrawn to protect “majority-minority” districts and to prevent what a congressional research report calls “the submergence of minority voters into the majority, which can deny minority voters the opportunity to elect a candidate of their choice.”

Further Reading: “Rachel Maddow Smears ‘Racist’ Scalia” (by Matthew Vadum, 3-8-2013); “Supreme Court Invalidates Key Part of Voting Rights Act” (NY Times, 6-25-2013).

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