During the 2006 congressional debate, Southern conservatives were unhappy that their states were still subject to Section 5. Georgia Representative Charlie Norwood offered an amendment that would have exempted the entire Deep South and covered only Hawaii, a state with no history of racial discrimination in voting. The amendment was defeated 318 to 96.
Changing the places covered by Section 5 would have blown up the entire bill. There was no political will or necessity to expand Section 5 nationwide, and "no objective statistical criteria could have added the most recent bad actors (Ohio and Florida) to the list of currently covered jurisdictions," wrote Nate Persily, a law professor at Columbia University. "The fact that Section 5 was geographically targeted has always been seen as one of its constitutional saving graces." The statute is intentionally narrow and deep rather than shallow and wide.
Prior to the NAMUDNO case, Section 5 had been upheld each time it was challenged before the Supreme Court — in 1966, 1973, 1980 and 1999. That pattern has continued, in the lower courts, with the Shelby County case. "This Court finds that Section 5 remains a 'congruent and proportional remedy' to the 21st century problem of voting discrimination in covered jurisdictions," wrote District Court Judge John Bates, a George W. Bush appointee, in September 2011. "Congress determined that '40 years has not been a sufficient amount of time to eliminate the vestiges of discrimination following nearly 100 years of disregard for the dictates of the 15th amendment.'"
The tide of voter suppression during the last election cycle makes the case for Section 5 even more persuasive. As Holder put it, "Even today, too many citizens have reason to fear that their right to vote, their access to the ballot — and their ability to have their votes counted — is under threat."
Shelby County makes two principal arguments in its brief, both of which quote Roberts's opinion in the NAMUDNOcase: first, that "things have changed in the South," and second, that the "evil that Section 5 is meant to address may no longer be concentrated in the jurisdictions singled out for preclearance." In other words, the Jim Crow era is over — but even if it's not, these days the North is no better than the South. "If we're going to have federal laws that protect the enfranchisement of minorities, those federal laws have to be one-size-fits-all," Blum says.
But past remains present to a disturbing degree in the South. States and counties with a history of voting discrimination in the 1960s and '70s are still trying to suppress their growing minority vote today. Six of the nine fully covered states have passed new voting restrictions since 2010, including voter ID laws (Alabama, Mississippi, South Carolina, Texas and Virginia), limits on early voting (Georgia) and restrictions on voter registration (Alabama and Texas). But only one-third of noncovered jurisdictions passed similar restrictions during the same period. The worst of the worst actors are still those covered by Section 5.
It's certainly true that voter suppression efforts have spread to states like Ohio, Pennsylvania and Wisconsin. If anything, though, that's an argument for expanding the statute, not eliminating it. "It's a unique concept to say, 'Well, since you're not catching everybody, you can't catch anyone,'" says Anita Earls, a prominent civil rights lawyer and executive director of the Durham-based Southern Coalition for Social Justice.
In last year's election cycle, the Justice Department under Section 5 opposed voter ID laws in Texas and South Carolina, early-voting cutbacks in Florida and redistricting maps in Texas. The federal courts in Washington sided with the DOJ in three of four cases, finding evidence of discriminatory effect and/or purpose, while also blocking South Carolina's voter ID law for 2012. "One cannot doubt the vital function that Section 5 of the Voting Rights Act has played here," Judge Bates wrote during South Carolina's voter ID trial. "Without the review process under the Voting Rights Act, South Carolina's voter photo ID law certainly would have been more restrictive."
In addition to passing a raft of new voting restrictions, Republicans across the South used their control of state legislatures following the 2010 election to pass redistricting maps that have led to a resegregation of Southern politics, placing as many Democratic lawmakers into as few majority-minority districts as possible as a way to maximize the number of white Republican seats [see Berman, "The GOP's New Southern Strategy," February 20, 2012]. Republican leaders say they're only following the guidelines of Section 5, but in reality they've turned the VRA on its head. (Most recently, on Martin Luther King Day, the GOP-controlled Virginia Senate redrew its maps to reduce Democratic seats by diluting black voting strength in at least eight districts.)
Expanding voting rights in these areas has been shaky at best. "Black voters and elected officials have less influence [in the South] now than at any time since the civil rights era," says a 2011 report from the Joint Center for Political and Economic Studies, which points out that only 4.8 percent of Southern black state legislators serve in the majority, compared with 54.4 percent in the rest of the country. Before the 1994 election, 201 of 202 black state legislators belonged to the majority party. Following the 2010 election, only fifteen of 313 did. There are more black elected officials in the South today, but they have far less power. And without Section 5, there would also be far fewer.
In Alabama, for example, Republicans targeted nearly every white Democrat in the state legislature for extinction but preserved the twenty-seven majority-minority districts in the House (even adding one more) as well as eight in the Senate in order to clear the maps with the feds. (At the time, the head of the Senate Rules Committee, Republican Scott Beason, referred to blacks as "aborigines.") "If there's no Section 5, all those majority-black districts are now vulnerable," says Jim Blacksher, a longtime voting rights lawyer in Birmingham. "And there is no question in anybody's mind what will happen next." He calls Section 5 "the most important sea anchor against the ongoing, uninterrupted, virulent white-supremacy culture that still dominates this state."
The kind of postracial society that would signal Section 5's irrelevance isn't anywhere on the horizon. Following Obama's re-election, white students at the University of Mississippi yelled racial slurs during an impromptu demonstration. Obama won only 10 percent of the white vote in Mississippi and 15 percent in Alabama. "Overall, Obama won about 46 percent of the white vote outside the South and 27 percent of the white vote in the South," observes Kevin Drum of Mother Jones.
Section 5 is invoked only in the most extreme circumstances and remains an imperfect and underused remedy. From 2010 to 2011, the Justice Department has objected to only twenty-nine of 19,964 submitted voting changes. Localities with a clean record are increasingly "bailing out" from the statute. "More jurisdictions have bailed out in the three years since NAMUDNO than the total number of jurisdictions that had bailed out in the 27 years prior to NAMUDNO," writes Gerry Hebert, a voting rights lawyer and longtime Justice Department official. "Not a single government that has sought bailout has been turned down." Adds Sensenbrenner, "Rather than throwing Section 5 out, which allows the people who haven't cleaned up their act to get out, why not have the people who don't discriminate anymore utilize the procedure to bail out?"
When the Supreme Court heard the NAMUDNO case shortly after Obama's election, opponents of the VRA argued that the election of the first black president showed that long-disenfranchised minority groups no longer needed special constitutional protections. It's much harder, after reviewing the ugly attempts at voter suppression in 2012, to make that argument now. "Our history," Harvard University historian Alex Keyssar testified to Congress in 2006, "makes plain that the right to vote can be as fragile as it is fundamental." Seven years later, those words have never been more true.