To protect democracy, Supreme Court must fully uphold Voting Rights Act

Today, the Supreme Court will consider the constitutionality of Section 5 of the Voting Rights Act  in the case Shelby County, Alabama v. Holder. After a year of politicians manipulating voting laws, the Court must uphold this protection and safeguard every American’s fundamental right to vote.

President Lyndon B. Johnson holds the signed Voting Rights Act at the White House Aug. 6, 1965. The Supreme Court begins hearings today on the constitutionality of Sect. 5 of the Act, which op-ed contributors Myrna Pérez and Lucy Zhou say 'is able to block discrimination before it occurs, acting as both a deterrent and a remedy to state and local governments whose laws end up...denying American citizens the equal right to vote.'

For generations, the Voting Rights Act (VRA) of 1965 has been instrumental in making the promise of our democracy a reality for millions of citizens. Today, the Supreme Court will consider the constitutionality of Section 5 of the Act ­– one of the most effective civil rights tools in our nation’s history – in the case Shelby County, Alabama v. Holder. After a year where politicians manipulated voting laws for their own benefit, the Court must uphold this protection and safeguard every American’s fundamental right to vote.

Section 5 requires certain states and jurisdictions with documented histories of denying minority voting-rights to gain approval from the Department of Justice or a federal court before changing voting procedures. This “preclearance” process is designed to ensure the changes do not discriminate against minority voters, either intentionally or unintentionally. Shelby County, a largely white suburb of Birmingham, filed suit in 2010, claiming Section 5 is unconstitutional because it hurts states’ rights.

Opponents of the law say it is unfair for some states to have to follow these rules. But the Supreme Court rejected this argument shortly after the Act was originally enacted in 1965. In total, four separate Court decisions have upheld the Act through the decades, and in 2006, Congress voted overwhelmingly to reauthorize it.

Opponents also argue the law is no longer necessary – that discrimination in our electoral process is a thing of the past. But the recent push to restrict voting, which came heavily in jurisdictions covered by Section 5, proves them wrong.   

In 2011 and 2012, 19 states passed more than two-dozen measures that would have effectively made it harder to vote, the biggest rollback in voting rights since the Jim Crow era. These measures included voter ID laws, early-voting cutbacks, and curbs on community-based voter registration drives – all of which imposed burdens on minority voters.

The Brennan Center for Justice and other voting-rights advocates fought back. Citizens rejected these laws at the polls, nearly a dozen courts overturned or weakened restrictive measures, and the Department of Justice blocked others. In the end, far fewer voters were affected by the voting-law changes than initially predicted.

Section 5 of the Voting Rights Act was instrumental in protecting these votes.

For example, last year, the Department of Justice opposed a Texas law demanding strict photo identification that many eligible Americans do not have. In late August 2012, the reviewing federal court agreed, denying Texas preclearance for the change because the voter ID law would have negatively impacted minority voters. A federal court also refused to preclear the legislature’s redistricting plan, finding the new lines intentionally discriminated against minorities. Because of Section 5, Texas could not implement these measures.

Likewise, in Florida last year, the Justice Department opposed portions of a Florida law that cut the early-voting period in half, among other restrictions. A federal court denied preclearance to Florida’s law based on evidence it reduced early-voting opportunities used disproportionately by minority voters.   

In South Carolina as well, the Brennan Center got involved in a case arguing against preclearance of the state’s voter ID requirement. The court did approve the law for future elections (it was not in effect for 2012 because there was not enough time for citizens to obtain proper ID), but it approved it only after interpreting the law in a way that allows all South Carolinians to vote even if they lack photo ID.

US District Judge John Bates acknowledged in his opinion that Section 5 played a “vital function” in the case, and that without the review process under the Voting Rights Act, South Carolina’s voter ID law “certainly would have been more restrictive.”

In 2013, some politicians are at it again. Restrictive voter photo-ID laws have passed legislatures in a number of states, including Virginia, whose new law awaits the governor’s signature and will then require federal preclearance before going into effect.

Without Section 5, voters would need to challenge restrictive laws on a case-by-case basis – after they are already enacted. This is an inefficient method to protect minority voting-rights. It would allow discriminatory laws to remain in effect while opponents endure the slow and expensive litigation process of challenging them.

Section 5 of the Voting Rights Act, however, is able to block discrimination before it occurs, acting as both a deterrent and a remedy to state and local governments whose laws end up intentionally or unintentionally denying American citizens the equal right to vote.

Not only is Section 5 of the Voting Rights Act a necessary and effective tool, it is also a symbol of our nation’s struggle and commitment to safeguarding the most fundamental right of American democracy. To weaken or invalidate this Act would be a shameful departure from the values our society holds so dear – equality, fairness, and an inclusive democracy. The Voting Rights Act is a reflection and realization of these values, and it must be fully upheld.

Myrna Pérez is senior counsel in the Democracy Program at the Brennan Center for Justice at New York University School of Law. Lucy Zhou is a research associate in the Democracy Program.

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