Petitioner challenged section 4 and 5 of the Voting Rights Act that required only some States to obtain federal permission before enacting a law related to voting in order to address the longstanding problem of racial discrimination in voting.
The Fifth Amendment is not designed to punish for the past; its purpose is to ensure a better future. To sever that purpose, Congress must identify those jurisdictions to be singled out on a basis that makes sense in light of 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.
Does section 4 and 5 of the Voting Rights Act of 1965 requiring States to obtain federal permission before enacting any law related to voting, of which the requirements applied to only some States violate the Constitution?
Yes, section 4 and 5 of the Voting Rights Act of 1965 requiring States to obtain federal permission before enacting any law related to voting, of which the requirements applied to only some States violate the Constitution violate the Constitution. This is because States retain sovereignty under the Constitution and 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 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.
The covered jurisdictions have had a unique history of problems with racial discrimination in voting and voting discrimination still pervades in those jurisdictions. The Voting Rights Act has worked to combat voting discrimination where other remedies had been tried and failed. Particularly effective is the Act’s requirement that teared out second generation barriers such as discrimination against minority voters and racial gerrymandering
“the practice of dividing or arranging a territorial unit into election districts in a way that gives one political party an advantage.”
. Congress has assembled a sizable record that is sufficient to show the effectiveness.
Section 5 of the Voting Rights Act is also unconstitutional because it forbids voting changes with any discriminatory purpose as well as voting changes that diminish the ability of citizens on account of race, color, or language minority status, to elect their preferred candidates of choice. However one aggregates the data compiled by Congress, it cannot justify the considerable burdens created by section 5.
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. However, coverage of the Act today is based on decades-old data and eradicated practices. The formula captures States by reference to literary tests and low voter registration and turnout in the 1960s and 70s. Voter registration and turnout numbers in the covered States have risen dramatically in the years since racial disparity in those numbers was compelling evidence justifying the pre-clearance remedy and the coverage formula. 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.