As Americans commemorate the 50th anniversary of the March on Washington, one of the key pieces of legislature accredited with advancing civil rights lingers in limbo. In April, a Supreme Court split along ideological and partisan lines voted 5-4 to strip the government of its most potent tool to stop voting bias: the requirement in the Voting Rights Act that all or parts of 15 states with a history of discrimination in voting, mainly in the South, get Washington’s approval before changing the way they hold elections. “Virtually everyone who has thought of this characterizes the Voting Rights Act as the most successful piece of civil rights legislation ever enacted,” said Charles Bullock, political science professor at the University of Georgia. “In Georgia, in 1962, prior to the adoption of the Voting Rights Act, only about 27 percent of adult blacks in Georgia were registered to vote. Now registration rates are pretty much identical to whites, and have been for awhile,” he said. “When that legislation was passed in Georgia there were three black offices holders. Now, there are thousands. It’s had a dramatic impact.” The decision was deplored by voting access activists and largely applauded by the states now free from nearly 50 years of intense federal oversight of their elections.
Bullock explained how Section 4 and Section 5, gutted by the decision, affected voting policy.
“For some states, and Georgia is among those, any time that the state or local government made any kind of changes that in any way impacted elections, they had to get the approval of the federal government. One was an administrative approach. With that, the proposed change would have to be submitted to the attorney general, and that office would have 60 days to decide whether the proposal was likely to be discriminatory. If not, it would be rejected,” Bullock explained
The second was a judicial approach, he said.
“The jurisdiction could go to Washington, D.C., in the district court, seeking a declaratory judgment that the proposed change was not discriminatory,” Bullock said.
“Section 4 determined who would be covered by Section 5, the trigger for federal preclearance,” he said. “In the Shelby County case, essentially the Supreme Court has made those unnecessary — no longer do you need to get federal approval.”
“If certain counties were covered as a result of the trigger mechanism, that’s when it had to abide by Section 5, the preclearance. The concept of preclearance wasn’t shuttered, but the trigger resting on that election data was now 49 years ago, and the Supreme Court ruled that wasn’t appropriate.”
The case originated in Shelby County, Ala. Subject to the pre-clearance measures, the county sued U.S. Attorney Eric Holder in federal court, arguing that Sections 4 and 5 of the act were unconstitutional. A federal district judge rejected the argument, ruling in favor of Holder, as did the U.S. Court of Appeals in May 2012.
Willie Mitchell, a Gainesville City Schools board member and past president of the Hall County-Gainesville NAACP, said his concern for voting rights is part of the reason he will be marching on Washington for the anniversary.
“A part of the conversation and a part of the protest is about the Voting Rights Act,” Mitchell said. “The problem I have with that is too many states are coming up with rules and regulations that would deny people the right to vote. To me it’s reminiscent of the old days, when they would do gerrymandering and poll taxes to exclude minorities.”
When the act was crafted in 1965, a locality was covered by Section 4 if less than half the adult population had registered or voted in the 1964 presidential election, or if the precinct had a test or device as a hurdle to vote — and in 1965 most of the South did, Bullock said. Other than the South, a few counties in New York, Michigan, California and Arizona were covered.
It will take congressional action to put Section 4 and Section 5 back into play by re-working the formula.