Section 5 of the Voting Rights Act
By Now, a Murky Mess

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As it was first enacted, the Voting Rights Act was flawless.[1] Scholars still disagree over the wisdom and legitimacy of parts of the 1964 Civil Rights Act.[2] But almost immediately, debate over the 1965 legislation fell silent, and even at the outset, only southerners (who came to the matter with dirty hands) raised serious questions about federalism and other issues.[3] And thus in 1997 the Supreme Court depicted the original 1965 Act as an occasion on which Congress understood precisely its enforcement power under Section 5 of the Fourteenth Amendment.[4]

That statute, however, barely resembles the Voting Rights Act of today.[5] True, the core guarantees of basic Fifteenth Amendment rights remain.[6] But while once upon a time every provision in the Act resembled an essential element in a beautifully constructed house with no extraneous or jarring parts, that old house is now a jumbled mess. The result is that after four decades in which courts and the Department of Justice (DOJ), as well as Congress, have basically rewritten the statute, its constitutional legitimacy has been seriously undermined. This is particularly true of Section 5, which is the focus of this article. The Act is part permanent, part temporary. Section 5, the most important of the temporary provisions, was passed in 1965 on an emergency basis in response to the crisis of southern black disfranchisement ninety-five years afterthe enactment of the Fifteenth Amendment. The provision requires federal preclearance (pre-approval) of all changes in election procedure in “covered” jurisdictions in the racially suspect South.[7] While it was expected to expire in 1970, it has been repeatedly renewed and revised, most recently for twenty-five years as the centerpiece of the Fannie Lou Hamer, Rosa Parks, and Coretta Scott King Voting Rights Act Reauthorization and Amendments Act of 2006 (VRARA).[8]

If a challenge to the constitutionality of the amended Section 5 reaches the Supreme Court, as is likely, the provision may no longer be regarded as unimpeachably valid.[9] Today there is near agreement in Congress, the mainstream media, and the civil rights community that, while blacks are going to the polls, electoral discrimination remains a real threat. Moreover, the revised statute is generally seen as all benefits and no costs.[10] Hence the paucity of critics of the proposed VRARA.[11] But, even if the preclearance provision survives constitutional scrutiny, that consensus may not last another decade.

The reworked statute rests on a racism-everywhere vision, particularly, but not exclusively, in the South. While that perspective was accurate in the 1960s, it no longer is.[12] There is bound to be a reality check down the road. In passing the 2006 VRARA, undoubtedly Congress hoped to end argument over the statute until 2031. Race-related debates are perilous today, but given the pace of racial change, events are likely to force that debate in legislative halls, on the bench, and within the DOJ. For the moment, the amended temporary provisions of the Act have been extended for another (arbitrarily chosen) quarter century.[13] It is a careless, politically expedient promise unlikely to be kept and it carries a high cost.

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