Facts And Myths About The Supreme Court Challenge To The Voting Rights Act

Described as the crown jewel of civil rights law, the Voting Rights Act has been the target of right-wing misinformation for decades, and a parallel legal assault against its constitutionality will be argued before the Supreme Court in Shelby County v. Holder on February 27. The VRA, enacted to stem voter suppression on the basis of race in the South, contains a provision within it - Section 5 - which identifies the worst historical offenders and requires that election changes in those jurisdictions pass federal review. The current legal challenges to the VRA focus on Section 5, and are the continuation of the same discredited claims lodged against this anti-discrimination law since its inception.

FACT: Voter Suppression Was A Serious Problem In The Last Election Cycle, Admitted To By Its Perpetrators, Reported By Journalists, And Proven In Federal Courts.

Myth: Section 5 Of The Voting Rights Act Is Outdated.

Heritage Foundation's Hans Von Spakovsky: There Is “A Complete Lack Of Evidence” Of Relevant Discrimination. Von Spakovsky, the repeatedly discredited voter ID proponent, described by former Bush-era Department of Justice colleagues as the “point person for undermining the Civil Rights Division's mandate to protect voting rights,” still opposes the Voting Rights Act. In conjunction with his belief in in-person voter fraud - despite evidence that it is practically non-existent - he also believes there is no longer widespread voter suppression to justify Section 5:

[The 2006 reauthorization of Section 5 of the Voting Rights Act] seems designed to make it easier for Justice attorneys to label covered jurisdictions as racist. That is a dangerous thing. During my service as a career attorney in the Civil Rights Division, I found that nearly all the lawyers and staff involved in Section 5 determinations see nefarious racial agendas -- i.e., discriminatory purpose -- lurking at every corner.


[Section 5] also provides a heckler's veto to any minority state legislator unsatisfied with a new redistricting map; such a legislator can now simply cry “racism,” thereby causing the map to suffer from a fatal Section 5 “discriminatory purpose” defect. Today, lone cries of racism are often (although not always, of course) totally baseless. But one can count on the ideologues in the Voting Section to accept every cry as legitimate.


States must understand that they cannot expect to get an impartial hearing from this Justice Department. They may still get a panel of liberal judges in federal court, but at least normal evidentiary standards will apply. In court, DOJ will have to provide actual evidence of discrimination -- not the rank hearsay and imaginary evidence often considered in its own administrative review. [National Review, 2/23/11]

American Enterprise Institute's Abigail Thernstrom: “The Supreme Court Should Scrap An Antiquated [Law].” A frequent National Review Online contributor and affirmative action opponent, Thernstrom has long advocated for “colorblind” policies that prohibit any consideration of race, a rejection of long-standing equal protection case law. Similarly, Thernstrom objects to the Voting Rights Act's continued focus on the disenfranchisement of voters of color:

By now, racist registrars and fraudulent literacy tests have gone the way of segregated water fountains. But the [Voting Rights Act] as subsequently amended betrays no awareness of this remarkable revolution in racial attitudes and laws; indeed, in passing the amendments of 2006, Republicans and Democrats alike accepted the argument offered by civil-rights advocates, and included in a House Judiciary Committee Report, that discrimination has just become “more subtle” than it was in 1965. Minority voters are still prevented from “fully participating in the electoral process.”

Rarely in the rich annals of congressional deceit and self-deception have more false and foolish words been written[.] [National Review, 6/22/09]

But Contrary To The Assertions Of Opponents Of The Voting Rights Act, Voter Suppression Is Still Very Much Alive. Since 2010, the pattern of Republican-fueled attempts to make it harder for American citizens to vote has been much reported, as is the partisan motive behind such restriction of the franchise. The impermissible racial discrimination behind these new state laws would have been harder to prove if not for Section 5 of the Voting Rights Act. As described by legal expert and founder of the Constitutional Accountability Center, Doug Kendall:

As everyone knows by now, in the run-up to the 2012 election, the right to vote was under siege.  Conservatives throughout the country tried to change election rules to disenfranchise ordinary Americans - passing restrictive voter ID laws, shortening early voting hours, and making it more difficult to register to vote.  These restrictions had the greatest impact on young, minority, elderly, and poor voters.


The happier, but lesser known, part of this story is how effective the Justice Department and progressive organizations were in going to court and using the Voting Rights Act to prevent the worst of these statutes from going into force.   In the run up to the election there were a number of hugely important lower court rulings that enforced the requirement that states with a history of racially discriminatory voting restrictions must “preclear” with the Department of Justice any change in voting laws.  These rulings provide critical new evidence of precisely why preclearance is still a much needed tool to protect the right to vote free from racial discrimination. Without the Voting Rights Act in place, African American and Hispanic voters in states across the country might have been denied their constitutional right to cast a ballot on election day. [Huffington Post, 11/9/12]

...And Section 5 Was Specifically Created Because Other Attempts To Fight Voter Suppression Prohibited Under The Voting Rights Act Were Unsuccessful. As evidenced by its remarkable preemptive success rate against voter suppression in the past year, Section 5 was specifically crafted to avoid after-the-fact "long shot" attempts at remedying voter suppression, when illegitimate elections have already occured and disenfranchised voters may not be able to testify. As explained by CNN legal analyst Jeffrey Toobin:

The heart of the Voting Rights Act is its famous Section 5, which essentially put the South on perpetual probation. In rough terms, the law requires the states of the old Confederacy (as well as a few smaller areas outside the South) to submit any changes in their electoral law to the Justice Department for what's known as “pre-clearance”--to make sure that the changes don't infringe on minority voting rights. Before Section 5, states and municipalities could simply change their rules--about everything from the location of polling places to the borders of district lines--and dare civil-rights activists to sue to stop them. It was a maddening, and very high-stakes, game of whack-a-mole. As a result of Section 5, though, the Justice Department monitored these moves and made sure there would be no backsliding on voting rights. [The New Yorker, 5/22/12]

FACT: Jurisdictions Covered By Section 5 Have A Record Of Suppressing The Votes Of Communities Of Color.

Myth: States Covered Under Section 5 Are Discriminated Against Unfairly.

The Wall Street Journal's James Taranto: “Clinging To [Section 5] Is Reactionary.” WSJ editorial board member Taranto repeatedly defends white males from perceived "antiwhite bigotry." However, he ignores the relevance of continued racial discrimination rooted in Jim Crow when he asks why only some states are covered by Section 5:

The question is whether Section 5 is appropriate legislation. If not, then it is clearly an infringement of state sovereignty under Article IV and the 10th Amendment, which define the basic structure of federal-state relations.


Among these 11 states, Georgia, South Carolina, Texas and parts of Florida and New Hampshire are covered by Section 5. But Indiana, Kansas, Ohio, Pennsylvania, Tennessee and Wisconsin are not. In Crawford v. Marion County Election Board (2008) the Supreme Court upheld Indiana's strict ID law against a challenge claiming it was unconstitutional on its face. In Ohio, a federal judge struck down a change in early voting rules on equal-protection grounds. In Pennsylvania a state judge enjoined enforcement of the voter ID law until next year, and a Wisconsin judge held that voter ID violated the state constitution. [The Wall Street Journal, 11/29/12]

Southern States Covered Under Section 5: “The Voting Rights Act Essentially Denies Some States The Right To Make Laws That Others Are Free To Enact.” Just as right-wing media refuses to acknowledge the historical pattern of voter suppression in states of the Old Confederacy, southern states have argued along the same lines in court. In a recent Section 5 challenge to its attempts at voter suppression, Arizona wondered why they are targeted by the Voting Rights Act and other states are not:

On Friday, Arizona Attorney General Thomas Horne filed an amicus brief in the South Carolina [Section 5] case, the Examiner noted. Arizona's argument: Section 5 unfairly affects states like South Carolina, since other states that aren't subject to the law can change voting laws to require similar identification measures without government approval.

“Because Section 5 applied arbitrarily to the Covered Jurisdictions, none of which uses discriminatory tests or devices, and many of which have higher voter turnout, or lower disparity in minority voter turnout, than many of the uncovered jurisdictions, the Covered States are denied the fundamental principles of equal sovereignty and equal footing,” the brief said. “Because the VRA's purpose is to eradicate voting discrimination for all United States citizens, treating states differently is not congruent with the Act's purpose.”

The brief cites examples such as voter ID laws in Indiana, New Mexico and Washington. It points out that lawmakers in those states were free to enact ID requirements, while those states covered under the Voting Rights Act could not, unless they got preclearance from the Justice Department. [The Wall Street Journal, 8/27/12]

But If Northern States Now Engage In Voter Suppression, Section 5 Should Be Expanded, Not Eliminated. Right-wing advocates complain that southern states prohibited from voter suppression tactics - such as voter ID - are unfairly discriminated against. They argue that states not subject to Section 5 have recently engaged in voter suppression, calling into question how the law selects covered states. These complaints omit the history of impermissible racial (and later national origin) discrimination behind the selections. As explained by former Department of Justice official and Chief Counsel to the Senate Judiciary Committee, William Yeomans:

Faced with this overwhelming evidence that Section 5 is still justified in the jurisdictions still subject to it, opponents are making a second argument. Some jurisdictions, they point out, that are not covered by Section 5 behave just as badly -- revealing the imprecision of the section's coverage formula...There was never any magic to the formula, which was reverse-engineered to capture the worst offenders.

The formula was always under-inclusive. It fails, for example, to include such states as Arkansas, Tennessee and Oklahoma, where racial discrimination was no stranger. It was also over-inclusive, capturing jurisdictions where voting discrimination was not as severe. That is why Congress built into the act a bailout provision, which allows jurisdictions that have maintained clean records for 10 years to go to court to end federal oversight. Dozens of jurisdictions have done just that.

It is true that several states not covered by Section 5 have been hotbeds of voting law controversy in recent cycles - notably Ohio, Pennsylvania and Florida (only five counties are covered). The correct response to this misbehavior, however, is not to release the covered jurisdictions. It is to ensure adequate legal remedies against abuses in these others as well. [Reuters, 1/10/13]

...And Former President George W. Bush Reauthorized The Voting Rights Act In 2006, Recognizing That The History Of Racism In Southern States Was Still Relevant. The last time the Voting Rights Act was reauthorized in 2006, former President Bush cited past racial discrimination in the south as a reason for its continued relevance, stating:

The Voting Rights Act that broke the segregationist lock on the ballot box rose from the courage shown on a Selma bridge one Sunday afternoon in March of 1965. On that day, African Americans, including a member of the United States Congress, John Lewis -- (applause) -- marched across the Edmund Pettus Bridge in a protest intended to highlight the unfair practices that kept them off the voter rolls.

The brutal response showed America why a march was necessary.


One week after Selma, President Lyndon Johnson took to the airwaves to announce that he planned to submit legislation that would bring African Americans into the civic life of our nation. Five months after Selma, he signed the Voting Rights Act into law in the Rotunda of our nation's capitol. In a little more than a year after Selma, a newly enfranchised black community used their power at the ballot box to help defeat the sheriff who had sent men with whips and clubs to the Edmund Pettus Bridge on that bloody Sunday.

In four decades since the Voting Rights Act was first passed, we've made progress toward equality, yet the work for a more perfect union is never ending. We'll continue to build on the legal equality won by the civil rights movement to help ensure that every person enjoys the opportunity that this great land of liberty offers. [The White House, 7/27/06]

FACT: The Supreme Court Has Repeatedly Upheld Reauthorizations Of The Voting Rights Act, Acknowledging Powers Explicitly Granted To Congress Under The Constitution.

Myth: Section 5 Is Unconstitutional.

The Washington Post's George Will: Congress' Assertion That Prohibited Discrimination Is Affecting Minority Voters Is “Nonsensical.” Conservative columnist Will has repeatedly attacked race-conscious legislation, such as affirmative action, while simultaneously defending voter suppression. In addition to the illogical assertion that an increase in voter turnout due to population increases is proof that voter suppression doesn't exist, Will's constitutional argument against the Voting Rights Act also focuses on Congress' purported failure to justify the recent reauthorization of Section 5:

In 1966, the Supreme Court said the pre-clearance requirement was a “rational” response to that era's crisis. In 1997, however, the court held that, to be justified, such an infringement of states' self-government must demonstrate “congruence and proportionality” concerning the problem it addresses. The 25-year extension in 2006, which the Texas jurisdiction challenges, is incongruent and disproportionate because it was based on the evidence used for the 1975 extension -- that of the 1972 and some earlier presidential elections. So the 2006 renewal is itself evidence that there are no contemporary findings of unconstitutional behavior proportional to the Voting Rights Act's sweeping 1965 remedy. In 2031, which will be 59 years after the 1972 election, Congress probably will reflexively extend this receivership -- unless the court insists upon the pertinence of evidence. [The Washington Post, 1/18/09]

The Cato Institute's Ilya Shapiro: “The [Voting Rights Act] Flies In The Face Of The Fifteenth Amendment's Requirement That All Voters Be Treated Equally.” Shapiro, a prolific libertarian who has objected to federal management of national problems in other areas, at least admits that his opposition to Section 5 of the Voting Rights Act is based on the ahistorical “colorblind” theory of constitutionalism that would prohibit any progressive legislation conscious of racial impacts:

The law's modern application, however, is problematic to say the least.  Sections 2 and 5 conflict with each other, with the Fourteenth and Fifteenth Amendments, and with the orderly implementation of fair elections.  The law, most recently renewed in 2006 for another twenty-five years, is based on deeply flawed assumptions and outdated statistical triggers, and flies in the face of the Fifteenth Amendment's requirement that all voters be treated equally.

That is, Section 5 was a valuable tool in the fight against systemic disenfranchisement, but it now facilitates the very discrimination it was designed to prevent.  For example, the prohibition on “retrogression” effectively requires districting that assures that minority voters are the majority in some districts - an inherently race-conscious mandate.

Jurisdictions covered by Section 5 are thus subject to utterly predictable litigation, the outcome of which is often dependent on judges' views of how to satisfy both the VRA's race-conscious mandates and the Fifteenth Amendment's command to treat people of all races equally under law.  [SCOTUSblog, 9/11/12]

But Criticism Of Congress' Role In Continuously Reauthorizing The Voting Rights Act Ignores Crucial Facts About Its Constitutional Role. Not only is the claim that there is no contemporary evidence of voter suppression for Congress to rely on demonstrably false, it is a constitutional truth that Congress is playing precisely the role it is assigned by the Fifteenth Amendment. As explained by David Gans, director of the Human Rights, Civil Rights, and Citizenship Program at the Constitutional Accountability Center:

To anyone who takes the Constitution's text seriously, there are glaring holes in the conservative constitutional attack on the Voting Rights Act.  Shelby County's primary argument is that the Act's preclearance requirement is outdated and unnecessary, given changes in Alabama (where Shelby County is located) and elsewhere, but the Constitution, in fact, assigns to Congress the job of deciding how to enforce the Constitution's ban on racial discrimination in voting.  As Chief Justice Roberts recognized in a much-ignored passage of his 2009 opinion in NAMUDNO v. Holder, “the Fifteenth Amendment empowers Congress, not the Court, to determine . . . what legislation is needed to enforce it.”


Going all the way back to 1965, “Congress identified the jurisdictions it sought to cover - those for which it had 'evidence of actual voting discrimination' - and then worked backward, reverse-engineering a formula to cover those jurisdictions.”  And, as the record described by Judge Bates and Judge Tatel in Shelby County shows, these jurisdictions continue to be the worst offenders, consistently refusing to live up to the Constitution's promise of a multi-racial democracy...In 2006, Congress considered the possibility of using modern voter turnout and registration data to update the coverage formula, but overwhelmingly rejected this course because it would have, in the words of one Republican Congressman, “turn[ed] the Voting Rights Act into a farce,” eliminating the preclearance requirement in jurisdictions with the longest history of racial discrimination in voting.   The Constitution does not demand the impossible of Congress in order to protect the right to vote free from racial discrimination. [Text & History, 9/24/12]

...And The Constitution Is Not “Colorblind,” No Matter How Many Times The Right-Wing Claims It Is. The "conservative sophistry" of a "colorblind" jurisprudence is behind new attempts to argue that although the Fifteenth Amendment was explicitly written for the purposes of guaranteeing suffrage to persons of color, it nevertheless does not permit race-conscious measures like Section 5. Such a revisionist reading of the Reconstruction Amendments - specifically crafted to constitutionally dismantle systemic racial discrimination against those who are not white - does not have the support of a majority of the Supreme Court. As explained by Justice Anthony Kennedy, the deciding vote who still refuses to join the conservative wing of the Court on this topic:

Our Nation from the inception has sought to preserve and expand the promise of liberty and equality on which it was founded.  Today we enjoy a society that is remarkable in its openness and opportunity.  Yet our tradition is to go beyond present achievements, however significant, and to recognize and confront the flaws and injustices that remain.  This is especially true when we seek assurance that opportunity is not denied on account of race.  The enduring hope is that race should not matter; the reality is that too often it does.

This is by way of preface to my respectful submission that parts of the opinion by THE CHIEF JUSTICE imply an all-too-unyielding insistence that race cannot be a factor in instances when, in my view, it may be taken into account...The plurality's postulate that "[t]he way to stop discrimination on the basis of race is to stop discriminating on the basis of race," is not sufficient to decide these cases[.]


The statement by Justice Harlan that "[o]ur Constitution is color-blind" was most certainly justified in the context of his dissent in Plessy v. Ferguson... In the real world, it is regrettable to say, it cannot be a universal constitutional principle. [Parents Involved in Community Schools v. Seattle School District No. 1, 6/28/07]