The Voting Rights Act of 1965 is one of the most important civil rights statutes in American history. The constitutionality of a crucial provision of the act—Section 5—is in doubt, and the case that challenges it, Shelby County v. Holder, will be argued before the Supreme Court on Feb. 27. Section 5 is important because of another provision, Section 2 of the Voting Rights Act, which prohibits voting practices or procedures that discriminate on the basis of race or against certain language minority groups. Under the 1982 amendments to Section 2, the act is violated by state or local laws that have the effect of disadvantaging minority voters. Lawsuits may be brought to challenge state or local actions that are alleged to violate Section 2. But Congress, in adopting the Voting Rights Act, concluded that allowing lawsuits to challenge election procedures was not adequate to stop discrimination in voting. Congress was aware that Southern states especially often invented new ways of disenfranchising minority voters. Section 5 of the Voting Rights Act was adopted to prevent such actions. It applies to jurisdictions with a history of race discrimination in voting and requires that there be preapproval—termed “preclearance”—of any attempt to change “any voting qualification or prerequisite to voting, or standard, practice, or procedure with respect to voting” in any “covered jurisdiction.” The preapproval must come either from the U.S. Attorney General, through an administrative procedure in the Department of Justice, or from a three-judge federal court in the District of Columbia through a request for a declaratory judgment.
In South Carolina v. Katzenbach, decided in 1966, the Supreme Court upheld the constitutionality of Section 5 and spoke of the “blight of racial discrimination in voting.” The court found that Section 5 was a constitutional exercise of Congress’s power to enforce the Fifteenth Amendment’s prohibition of race discrimination in voting.
Congress repeatedly has extended Section 5, including for five years in 1970, for seven years in 1975, and for 25 years in 1982. After each reauthorization, the court again upheld the constitutionality of Section 5: Georgia v. United States, decided in 1973; City of Rome v. United States, 1980; and Lopez v. Monterey County, 1999.
In 2006, Congress voted overwhelmingly–98-0 in the Senate and 390-33 in the House—to extend Section 5 for another 25 years, and President George W. Bush signed this into law. Congress found that “without the continuation of the [Voting Rights Act’s] protections, racial and language minority citizens will be deprived of their opportunity to exercise their right to vote, or will have their votes diluted, undermining the significant gains made by minority voters in the last 40 years.”
Challenges were quickly brought to the constitutionality of Congress’s extending Section 5 and the Supreme Court considered this issue in Northwest Austin Municipal Utility District v. Holder. A local government in Texas argued that Congress exceeded its powers in reauthorizing Section 5.
Chief Justice John G. Roberts Jr., writing for the court in an 8-1 decision issued in 2009, expressed serious doubts about the constitutionality of the extension of Section 5, but interpreted the statute so as to avoid the constitutional issue. He noted the progress with regard to race discrimination in voting: In 1965, there were jurisdictions where there was a 50 percentage point gap in registration for voting, whereas “[t]oday, the registration gap between white and black voters is in single digits in the covered [s]tates; in some of those [s]tates, blacks now register and vote at higher rates than whites.”