Shelby County, located in Alabama, is a covered jurisdiction of the Voting Rights Act that required States to obtain federal permission before enacting any law related to voting. The Attorney General has objected to voting changes proposed from within the county. It complained that section 4 and 5 of the Act are facially unconstitutional.
Exceptional conditions can justify legislative measures not otherwise appropriate. When racial discrimination in voting is too much, Congress must ensure that the legislation it passes to remedy that problem speaks to current conditions.
The Voting Rights Act of 1965 employed extraordinary measures to address an extraordinary problem. Section 5 of the Act required States to obtain federal permission before enacting any law related to voting – a drastic departure from basic principles of federalism. Section 4 of the Act applied that requirement only to some States – an equally dramatic departure from the principle that all States enjoy equal sovereignty. While it was drastic, Congress determined it was needed to address entrenched racial discrimination in voting, “an insidious and pervasive evil which had been perpetuated in certain parts of our country.” They were scheduled to expire after five years. However, they are still in effect nearly 50 years later. Census Bureau data indicate that African-American voter turnout has come to exceed white voter turnout in five of the six States originally covered by the Act.
Are section 4 and 5 of the Voting Rights Act of 1965 that required States to obtain federal permission before enacting any law related to voting and applied that requirement only to some States unconstitutional?
Yes, not only do States retain sovereignty under the Constitution, there is also a fundamental principle of equal sovereignty among the States. The Voting Rights Act sharply depart from these basic principles. It suspends all changes to state election law – however innocuous – until they have been precleared by federal authorities in permission to implement laws that they would otherwise have the right to enact and execute on their own.
Efforts to reduce the impact of minority votes, in contrast to direct attempts to block access to the ballot, are aptly described as “second-generation barriers” to minority voting. Second generation barriers come in various forms. One of the blockages is racial gerrymandering, the redrawing of legislative districts in an effort to segregate the races for purposes of voting. Another is adoption of a system of at-large voting in lieu of district-by-district voting in a city with a sizable black minority. By switching to at-large voting, the overall majority could control the election of each city council member, effectively eliminating the potency of the minority’s voters.
The Act was intended to be temporary, set to expire after five years. At the time it was enacted, the coverage formula made sense. Congress chose to limit its attention to the geographic areas where immediate action seemed necessary. Nearly 50 years later, things have changed dramatically. In the covered jurisdictions, voter turnout and registration rates now approach parity. Blatantly discriminatory evasions of federal laws are rare. And minority candidates hold office an unprecedented levels. Yet the Act has not eased the restrictions or narrowed the scope of the coverage formula. Those extraordinary and unprecedented features were reauthorized – as if nothing has changed. However, a fundamental problem still remains: Congress did not use the record it compiled to shape a coverage formula grounded in current conditions. Thus, the Court only invalidated the coverage formula. Congress may draft another formula based on current conditions.