February 1, 2012
(Editor’s note: February is Black History Month, and the struggle for civil rights is a big part of that history. Throughout the month of February, we’ll be looking at contemporary civil rights disputes, especially legal ones.)
On August 6, 1965, with Martin Luther King, Jr. and Rosa Parks present, President Lyndon B. Johnson signed the Voting Rights Act (VRA) into law.
The Act was a landmark piece of civil rights legislation that outlawed voting practices used to disenfranchise African American voters (such as voter literacy tests).
While most of the VRA was controversial at the time of its signing, at least in some areas of the country, one provision in particular continues to be so even today: Section 5.
Section 5 requires that a “covered jurisdiction” cannot change “any voting qualification or prerequisite to voting, or standard, practice, or procedure with respect to voting” without federal approval.
The “covered jurisdictions” are predominantly states located in the South, but also include counties in other states (see the Department of Justice’s current list of covered jurisdictions for more).
As the statute’s language suggests, Section 5’s prohibition against such jurisdictions making any changes relating to voting without federal approval is very broad, although one area in particular has made Section 5 a big legal focus recently.
That area was also the subject of a recent Supreme Court decision: redistricting.
The decision – Perry v. Perez – was actually very limited in its scope in regards to Section 5 itself, to the great disappointment of those hoping to see the provision struck down as unconstitutional.
Here’s what happened:
After census data is collected and made available, states must redraw their congressional and state legislative maps to account for population shifts.
However, before such changes can take effect, Texas, a “covered jurisdiction,” must obtain federal approval for those changes – also known as “preclearance.”
To be “precleared,” a covered jurisdiction must show that its proposed changes don’t have a “discriminatory purpose” or “retrogressive effect” on minority voters.
Texas drew up the maps, and filed in federal court in D.C. for preclearance.
While the preclearance case was pending, various groups sued in a separate action claiming that the new plans discriminated against African American and Latino voters.
Hearings were heard in the case, but judgment was reserved pending the resolution of the preclearance case.
It then became apparent that there wouldn’t be resolution to either case in time for the 2012 elections.
Since the previous census, Texas saw massive population shifts, with three-quarters of its population growth since 2000 attributable to Latinos and African Americans.
Thus, given the U.S. Constitution’s mandate of “one person, one vote” (see 1964’s Reynolds v. Sims), using the old district maps would be unconstitutional.
On the other hand, the new ones couldn’t be used until Texas obtained preclearance.
So, to try to put something together in time for the elections, the federal court hearing the challenge to the redistricting then drew its own maps.
The Supreme Court’s decision in Perry v. Perez was the final result of the conflict over the district court’s maps, and in it the Court unanimously (and lukewarmly) held that it was “unclear” whether the district court drew the maps correctly.
As I mentioned earlier, this decision was a huge disappointment to many because the Court didn’t touch the issue of Section 5’s constitutionality (except, of course, for the Court’s fiercest opponent of civil rights laws, Clarence Thomas, who declared it unconstitutional in a separate concurrence).
Those hoping to see the Court void Section 5 will continue to be disappointed as long as they rely on preclearance actions as the vehicle to try to accomplish their goal.
Except for the rare occasion, the Roberts Court prefers to decide cases on as narrow of grounds as possible.
Because preclearance actions only require a decision on whether voting changes are acceptable, it is highly unlikely that the Court will go above and beyond to rule Section 5 unconstitutional.
The Court would view that as overstepping its judicial bounds, especially in light of Congress’s extending of the VRA for another 25 years in 2006 (more on that next week).
Whether explicit challenges to Section 5 itself – such as Shelby County v. Holder – will have any better luck remains to be seen.
Even if they fail, challengers are unlikely to stop trying, and this battle could easily be seen as the biggest legal civil rights struggle of the present time.