If Section 5 Falls: New Voting Implications

As the Supreme Court prepares to release its decision in Shelby County v. Holder, this report analyzes new implications — that have so far gone largely unnoted — if the Court takes the extraordinary step of striking down Section 5 of the Voting Rights Act. This key provision has been crucial to challenging restrictive voting laws proposed by states in recent years. Without the protections of Section 5, states might seek to reinstate or push a wave of discriminatory voting measures that were previously blocked or deterred by the law. This would seriously threaten the rights of minority voters across the country to cast a ballot and generate additional confusion and litigation over voting rules.

Executive Summary

For nearly five decades, Section 5 of the Voting Rights Act of 1965 (“VRA”) has been one of the nation’s most effective tools to eradicate racial discrimination in voting. Section 5 prohibits certain states and jurisdictions with histories of voting discrimination from enforcing changes to their election procedures until the changes have been reviewed by the U.S. Department of Justice (“DOJ”) or a federal court through a process called “preclearance.” This critical tool stops discriminatory election changes before they can harm voters by requiring jurisdictions covered by Section 5 to demonstrate that their proposed voting changes do not have a racially discriminatory intent or effect.

Section 5 has been challenged as unconstitutional in Shelby County v. Holder, now pending before the U.S. Supreme Court. The Court upheld Section 5 in four previous cases, and we believe it ought to do so again. The U.S. Constitution specifically gives Congress the authority to adopt legislation to combat racial discrimination in voting. Lawmakers considered a vast amount of evidence showing ongoing racial voting discrimination in the Section 5 covered states before voting nearly unanimously in 2006 to continue the provision through 2031.

The decision in the Shelby County case could have significant consequences. Should the Court eliminate or weaken Section 5, minority voting rights could be threatened on a number of fronts by jurisdictions attempting to:

• re-enact discriminatory voting changes that have been formally blocked by Section 5 (31 proposals were blocked by DOJ alone since the VRA was reauthorized in 2006);
• adopt discriminatory voting changes that previously were deterred by Section 5 (for example, between 1999 and 2005, 153 changes were withdrawn when DOJ asked questions about them);
• implement discriminatory voting changes that have lain dormant while awaiting Section 5 review;
• adopt new restrictive changes; or
• implement discriminatory voting changes that have been blocked from going into effect, but technically still remain on the books.