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Proposed Amendments to the Voting Rights Act of 1965

Laughlin McDonald

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Shelby County Invalidated the Section 5 Coverage Formula

  • 1 Roberts, C.J., delivered the opinion of the Court, in which Scalia, Kennedy, Thomas, and Alito, JJ. (...)

1 In Shelby County, Alabama v. Holder, 133 S.Ct. 2612, 2627 (2013), the Supreme Court, in a closely divided 5-4 decision, held the coverage formula of the Voting Rights Act, Section 4(b), 52 U.S.C. § 10303(b), was unconstitutional because it “is based on decades-old data and eradicated practices.”1 The coverage formula, first enacted in 1965 and extended in 1970, 1975, 1982, and 2006, was based on whether a state or political subdivision used a “test or device” for voting and whether less than 50% of voting age citizens were registered or voted in the 1964, 1968, or 1972 presidential elections. 133 S.Ct. at 2619-20, 2627. The phrase “test or device” is defined as any requirement that “a person as a prerequisite for voting or registration for voting (1) demonstrate the ability to read, write, understand, or interpret any matter, (2) demonstrate any educational achievement or his knowledge of any particular subject, (3) posses good moral character, or (4) prove his qualifications by the voucher of registered voters or members of any other class.” 52 U.S.C. § 10303(c). A ban on tests or devices was made nationwide in 1970 by amendments to the Voting Rights Act and made permanent in 1975. 52 U.S.C. § 10501(a); Shelby County, 133 S.Ct. at 2620. In Oregon v. Mitchell, 400 U.S. 112 (1970), the Court held the nationwide ban on literacy tests imposed by the 1970 amendments was constitutional.

2 When first enacted in 1965, the Voting Rights Act was “designed by Congress to banish the blight of racial discrimination in voting, which has infected the electoral process in parts of our country.” South Carolina v. Katzenbach, 383 U.S. 301, 308 (1966). In 1975, coverage was extended to language minorities, defined as American Indians, Asian Americans, Alaskan Natives, and those of Spanish heritage. 52 U.S.C. § 10503(e). Congress concluded that language minorities, like racial minorities, had been the victims of significant discrimination in many areas, including access to voter registration, public education, housing, administration of justice, and employment. Senate Committee on the Judiciary, Voting Rights Act Extension, S. Rep. No. 295, 25, 29 (1975).

3 Prior to the Shelby County decision, nine states and parts of seven others were covered and were required by Section 5 of the Act, 52 U.S.C. § 10304, to get federal approval (either from the Attorney General or the Federal District Court for the District of Columbia) of any changes in their voting practices or procedures before they could be implemented. 133 S.Ct. at 2624. The covered jurisdictions were: Alabama, Alaska, Arizona, California (five counties), Florida (five counties), Georgia, Louisiana, Michigan (two towns), Mississippi, New Hampshire (ten towns), New York (three counties), North Carolina (40 counties), South Carolina, South Dakota (two counties), Texas, and Virginia. Procedure for the Administration of Section 5, Code of Federal Regulations 28, pt. 51 app. (2002). The burden is upon the submitting jurisdiction to show that a proposed change would not have the purpose or effect of diminishing the ability of racial or language minorities “to elect their preferred candidates of choice.” 52 U.S.C. § 10304(b). A voting change has a discriminatory effect under Section 5 if it leads to a “retrogression” in minority voting rights, that is, makes them worse off than under the existing or “benchmark” practice. Beer v. United States, 425 U.S. 130, 141 (1976).

4 The majority opinion of the Court in Shelby County conceded “voting discrimination still exists; no one doubts that.” 133 S.Ct. at 2619. It also held: “We issue no holding on §5 itself, only the coverage formula. Congress may draft another formula based on current conditions. . . . and while any racial discrimination in voting is too much, Congress must ensure that the legislation it passes to remedy that problem speaks to current conditions.” Id. at 2631. In her dissenting opinion, Justice Ginsburg chided the majority that “[t]hrowing out preclearance when it has worked and is continuing to work to stop discriminatory changes is like throwing away your umbrella in a rainstorm because you are not getting wet.” Id. at 2650. She also noted that the Voting Rights Act contains a “bail out” provision, which allows a jurisdiction that has complied with the Act for ten years and has engaged in efforts to eliminate intimidation and harassment of voters to bailout from Section 5 coverage. According to Justice Ginsberg, the bailout provision and it use by nearly 200 jurisdictions “exposes the inaccuracy of the Court’s portrayal of the Act as static, unchanged since 1965.” Id. at 2644.

Prior Challenges to Section 5

5 When enacted in 1965, the constitutionality of Section 5 was challenged by South Carolina and five other covered Southern states. The Supreme Court held the statute was constitutional because it was justified by the “insidious and pervasive evil which had been perpetuated in certain parts of our country through unremitting and ingenious defiance of the Constitution.” South Carolina v. Katzenbach, 383 U.S. at 309. The Court also held the Section 4(b) coverage formula was constitutional because it was designed “to describe these areas . . . relevant to the problem of voting discrimination.” Id. at 329. Congress was “entitled to infer a significant danger of the evil in the few remaining States and political subdivisions covered by § 4(b) of the Act. No more was required to justify the application to these areas of Congress’ express powers under the Fifteenth Amendment.” Id.

6 Section 5 was extended for an additional five years in 1970, and the Section 4(b) coverage formula was expanded to include the 1968 presidential election. Pub. L. No. 91-285, 84 Stat 314, 315 (1970). The extension was upheld in Georgia v. United States, 411 U.S. 526, 535 (1973), in which the Court held “for the reasons stated at length in South Carolina v. Katzenbach . . . we reaffirm that the Act is a permissible exercise of congressional power under § 2 of the Fifteenth Amendment.” Id. at 535.

7 Congress again extended Section 5 in 1975 for seven years, and expanded the Section 4(b) coverage formula to include the 1972 presidential election. Pub. L. No. 94-73, 89 Stat 400, 401 (1975). City of Rome v. United States, 446 U.S. 156, 182 (1980), held the extension was “plainly a constitutional method of enforcing the Fifteenth Amendment.” In doing so, it relied upon Congress’ conclusions that Section 5 “has become widely recognized as a means of promoting and preserving minority political gains in covered jurisdictions,” that “recent objections entered by the Attorney General . . . to Section 5 submissions clearly bespeak the continuing need for this preclearance mechanism,” and that Section 5 “serves to insure that that progress not be destroyed through new procedures and techniques.” Id. at 181.

8 In 1982, Congress again extended Section 5, this time for 25 years and retained the preexisting Section 4(b) coverage formula. Pub. L. No. 97-205, 96 Stat.131 (1982). The constitutionality of the extension was affirmed in Lopez v. Monterey County, 525 U.S. 266, 282 (1999), which held “we have specifically upheld the constitutionality of § 5 of the Act against a challenge that this provision usurps powers reserved to the States.”

9 In 2005 and 2006, Congress considered the need for continuation of Section 5 and the appropriateness of the Section 4(b) coverage formula. It held 21 hearings, heard from more than 90 witnesses, and compiled a massive record of more than 15,000 pages of evidence. H.R. Rep.

10No. 109-478, 109th Cong., 2d Sess., at 5 (May 22, 2006); S. Rep. No. 109-295, 109th Cong., 2d Sess., at 2 (July 26, 2006). The House Committee on the Judiciary described the record it compiled as “one of the most extensive legislative records in the Committee on the Judiciary’s history.” H.R. Rep. No. 109-478, at 5 (2006). At the conclusion of its deliberations Congress, by a vote of 390 to 33 in the House and by a unanimous vote in the Senate, extended Section 5 under the Section 4(b) coverage formula for an additional 25 years. 152 Cong. Rec. S8012 (daily ed. July 20, 2006); 152 Cong. Rec. H5143-5207 (daily ed. July 13, 2006); Fannie Lou Hamer, Rosa Parks, and Coretta Scott King Voting Rights Act Reauthorization and Amendments Act of 2006, Public Law 109-246, 120 Stat. 577 (2006). In doing so, Congress invoked its enforcement authority under the Fourteenth and Fifteenth Amendments. H.R. Rep. No. 109-478, at 90 (2006). Both Amendments provide: “The Congress shall have power to enforce this article by appropriate legislation.”

11 Congress also amended Section 5 to restore the longstanding interpretation and application of Section 5 which had been abrogated by Reno v. Bossier Parish Sch. Bd., 528 U.S. 320 (2000) (Bossier II), and Georgia v. Ashcroft, 539 U.S. 461 (2003). In Bossier II the Court held for the first time that the “purpose” prong of Section 5 prohibited only voting changes that were enacted with a discriminatory and a retrogressive purpose. 528 U.S. at 328. In 2006, Congress explained that Bossier II’s limitation of the purpose prong was inconsistent with Congress’s intent that Section 5 prevents “[v]oting changes that ‘purposefully’ keep minority groups ‘in their place,’” as well as purposefully retrogressive voting changes. H.R. Rep. No. 109-478, at 68 (2006). See S. Rep. No. 109-295, at 16 (2006) (Bossier II gives “approval to practices that violate the Constitution”). Congress thus restored the pre-Bossier II definition of the purpose standard to include “any discriminatory purpose.” 52 U.S.C. § 10304(c).

12 In Georgia v. Ashcroft, the Court also changed the preexisting standard for determining whether a voting change had a prohibited retrogressive effect under Section 5. Prior to Ashcroft, the effect standard was “‘whether the ability of minority groups to participate in the political process and to elect their candidates to office is . . . diminished . . . by the change affecting voting.’” Beer v. United States, 425 U.S. 130, 141 (1976) (quoting H.R. Rep. No. 94-196, at 60). In Ashcroft, the Court approved a “totality of circumstances” analysis that included whether a minority group could “influence the election of candidates of its choice.” 539 U.S. at 479. Congress concluded the new standard introduced “substantial uncertainty” into the operation of Section 5, which was designed to protect “the effectiveness of minority political participation.” H.R. Rep. No. 109-478, at 70 (2006). See also id., at 68 & 70 (Ashcroft not only made Section 5 “unadministerable” but “would encourage States . . . to turn black and other minority voters into second class voters”); S. Rep. No. 109-295, at 18 (2006) (“the Georgia standard is unworkable. The concept of ‘influence’ is vague”). In order to restore the “ability to elect” standard articulated in Beer, Congress added the language that a voting change was objectionable under Section 5 if it diminished the ability of minorities “to elect their preferred candidates of choice.” 52 U.S.C. §§ 10304(b) & (d). See H.R. Rep. No. 109-478, at 70-1 (2006).

13Shortly after the 2006 amendment and extension of Section 5, a municipal utility district in Austin, Texas filed suit claiming it was entitled to bailout from Section 5 coverage, but if not Section 5 was unconstitutional. Northwest Austin Municipal Util. Dist. No. One v. Holder, 557 U.S. 193, 200-01 (2009). The Court concluded the district was entitled to bailout and it was thus unnecessary to reach the constitutional question. Id. at 205. The Court, however, for the first time expressed concerns about the coverage formula and whether its “disparate geographic coverage” was “sufficiently related” to the problems it targeted. Id. at 203.

14 In April 2010, Shelby County sought a declaration that Sections 5 and 4(b) were facially unconstitutional and a permanent injunction against their enforcement. The district court granted summary judgment to the defendants, Shelby County, Ala. v. Holder, 811 F.Supp. 2d 424 (D. D.C. 2011), and Shelby County appealed. The court of appeals in a 2-1 opinion affirmed. It noted that Nw. Austin, 557 U.S. at 203, which declined to consider the constitutionality of the 2006 extension of Section 5, held the extension “must be justified by current needs,” and that “a statute’s disparate geographic coverage” requires a showing that it “is sufficiently related to the problem that it targets.” Shelby County, Ala. v. Holder, 679 F.3d 848, 858-59 (D.C. Cir. 2012). The court of appeals then applied the “congruence and proportionality standard” of City of Boerne v. Flores, 521 U.S. 507, 520, 530 (1997) (in the exercise of Congressional power to enforce the Fourteenth Amendment there must be a “congruence between the means used and the ends to be achieved,” and “[t]he appropriateness of remedial measures must be considered in light of the evil presented"), in affirming the constitutionality of the extension of Sections 5 and 4(b).

15 The court of appeals stressed that “the record contains numerous ‘examples of modern’ instances of racial discrimination in voting” in the covered jurisdictions relied upon by Congress in amending and extending the Act in 2006. Shelby County, 679 F.3d at 865. That evidence included: (1) 626 objections by the Department of Justice (DOJ) from 1982 to 2004 to voting changes that would have the purpose or effect of discriminating against minorities; (2) “more information requests” from DOJ regarding Section 5 submissions which resulted in the withdrawal or modification of over 800 potentially discriminatory voting changes; (3) 105 successful Section 5 enforcement actions brought against covered jurisdictions between 1982 and 2004; (4) 25 preclearance denials by the District Court for the District of Columbia between 1982 and 2004; (5) 653 successful lawsuits under Section 2 of the Voting Rights Act, 52 U.S.C. § 10301, between 1982 and 2005 providing relief from discriminatory practices in at least 825 covered counties; (6) tens of thousands of federal observers dispatched to monitor elections in covered jurisdictions; (7) examples of “overt hostility to black voting power by those who control the electoral process;” (8) racially polarized voting; (9) evidence that Section 5 has a strong deterrent effect; (10) litigation by DOJ to enforce the minority language provision of the Act; and (11) Section 2 was an inadequate remedy for racial discrimination in voting in the covered jurisdictions. Shelby County, 679 F.3d at 865-872; 120 Stat. 577, Sec. 2(b) . The court of appeals concluded: “After thoroughly scrutinizing the record and given that overt racial discrimination persists in covered jurisdictions notwithstanding decades of section 5 preclearance, we, like the district court, are satisfied that Congress’s judgment deserves judicial deference.” Shelby County, 679 F.3d at 873; See 120 Stat. 577, Sec. 2(b) (summarizing the findings and evidence upon which Congress relied in amending and extending the Voting Rights Act). The Supreme Court limited its grant of certiorari to the question whether “the pre-existing coverage formula of Section 4(b) of the Voting Rights Act” is constitutional. Shelby County, Alabama v. Holder, 133 S.Ct. 594 (2012). And in striking down the coverage formula, the Court relied upon Northwest Austin in concluding the formula was not based on “current conditions.” Shelby County, 133 S.Ct. at 2630-31.

Examples of Current Voting Discrimination

16 There are many examples of current voting discrimination justifying the extension of Section 5. One involved Texas’s 2011 Congressional, Senate, and House redistricting plans. In denying preclearance to the Congressional plan, the District of Columbia court concluded it was both “retrogressive” and had been adopted “with discriminatory intent.” Texas v. United States, 2012 WL 3671924 **14, 21 (D. D.C. Aug. 28, 2012). It based its finding of discriminatory intent upon several factors, including: the removal of key economic centers from the minority districts; the removal of district offices from the minority districts but not from any of the districts of Anglo members of Congress; “Texas’s history of failures to comply with the VRA;” Black and Hispanic members of Congress “were excluded completely from the process of drafting new plans, while the preferences of Anglo members were frequently solicited and honored;” only 72 hours notice was given of the sole public hearing on the proposed plan; failure to release a redistricting proposal during the regular session; the limited time for review of proposed plans; and failure to provide election data to evaluate VRA compliance. Id. at **20-1.

17 The court denied preclearance to the Senate plan because it “was enacted with discriminatory purpose as to SD 10.” Id. at *26. That purpose was evident from a variety of factors. The African American and Hispanic population in SD 10 was cracked into three other districts. Id. at *23. In addition, “every senator who represented an ability district was excluded from this map-drawing process and was not allowed . . . to preview the maps.” Id. at * 24. “None of the senators representing ability districts were shown their districts until forty-eight hours before the map was introduced in the Senate.” Id at *24. At the staff level “no new proposals or amendments to the district map would be entertained at the markup.” Id. at *25. The “legislature departed from typical redistricting procedures and excluded minority voices from the process even as minority senators protested that section 5 was being run roughshod.” Id. at *26.

18 The court denied preclearance to the House plan because it abridged minority voting rights in four ability districts - HDs 33, 35, 117, and 149 - and did not create any new ability districts to offset those losses. Id. at *26. Because it found the House plan had a retrogressive effect, the court found it unnecessary to decide whether the plan had been enacted with a discriminatory purpose. However, it concluded that “record evidence may support a finding of discriminatory purpose in enacting the State House Plan.” Id. at *37. The evidence of discriminatory purpose included: the House plan paid little attention to the VRA; despite the dramatic growth in minority population “Texas failed to create any new minority ability districts among 150 relatively small House districts;” the evidence showed “a deliberate, race-conscious method to manipulate not simply the Democratic vote but, more specifically, the Hispanic vote; and “mapdrawers cracked VTDs (Voting Tabulation District) along racial lines to dilute minority voting power.” Id. at **36-7.

19 As is apparent, during its 2011 redistricting process the State of Texas resorted to overt racial discrimination in minimizing the opportunities of minorities to participate in the political process and to elect representatives of their choice. It undeniably underscores the continuing need for Section 5 and redrafting the coverage formula.

20 Another example of current voting discrimination involved South Carolina. In 2011 the state enacted a new photo ID requirement for in-person voting, and submitted it to DOJ for preclearance under Section 5. On December 23, 2011, DOJ objected to the change on the grounds that it would have a discriminatory effect upon minority voters. See Letter from Thomas E. Perez, Assistant Attorney General, to C. Havird Jones, Jr., S.C. Assistant Deputy Attorney General, December 23, 2011,​crt/​about/​vot/​sec/​_5/​obj_activ.php. The DOJ noted that the “absolute number of minority citizens whose exercise of the franchise could be adversely affected by the proposed requirements runs into the tens of thousands.” Id. at p. 3. South Carolina then filed an action for judicial preclearance of the photo ID requirement. The experts for South Carolina and the defendants agreed that as of April 2012, some 130,000 registered voters in the state lacked a photo ID acceptable under the new law, and those voters were disproportionately likely to be members of a racial minority. South Carolina v. Holder, 2012 WL 4814094 *20 (D. D.C. Oct. 10, 2012). The three-judge court denied preclearance of the photo ID requirement for the November 2012 election because there was not adequate time to implement it to ensure the law would not have a discriminatory effect on African American voters. However, it granted preclearance for subsequent elections but only because the state ultimately agreed during the protracted course of the litigation that the law “allows citizens with non-photo registration cards to still vote without a photo ID so long as they state the reason for not having obtained one.’’ Id. at *1. In a concurring opinion, Judge Bates underscored “the vital function that Section 5 of the Voting Rights Act has played here. Without the review process under the Voting Rights Act, South Carolina’s voter photo ID law certainly would have been more restrictive.” Id. at *21. The state’s agreement to modify the ID law was driven by “South Carolina officials’ efforts to satisfy the requirements of the Voting Rights Act.” Id. As Judge Bates concluded: “The Section 5 process here . . . demonstrates the continuing utility of Section 5 of the Voting Rights Act in deterring problematic, and hence encouraging non-discriminatory, changes in state and local voting laws.” Id. at *22. South Carolina’s continuing efforts to marginalize minority voting strength further underscores the need for Section 5 preclearance, and the need for Congress to enact a new coverage formula.

21 South Carolina and Texas are not isolated examples. In the 2014 elections, the first held in nearly fifty years without the full protection of the Voting Rights Act, voters in fourteen states faced new restrictions at the polls. See, Ari Berman, Give Us The Ballot; The Modern Struggle For Voting Rights In America (Farrar, Straus and Giroux, New York; 2015), p. 311. These restrictions included cut backs in early voting, photo ID requirements for in-person voting, abolishing same day registration and voting, not counting ballots cast in the wrong precincts, and making it harder to register to vote. To cite another recent example, San Juan County, Utah, the home of a substantial Navajo Indian population, implemented a new system of mail-in voting in 2015. The change will have a significant adverse impact on the ability of Navajo Indians to vote because many lack adequate access to public mails. And Alabama also announced in 2015 that it was closing 31 of its 67 motor vehicle locations, the majority of which are in counties with substantial black populations. These closures will make it more difficult for blacks applying for driver’s licenses to also register to vote. Had Section 5 been in effect, these changes would have been required to be precleared.

Pending Bills

22 Following lengthy discussions, a coalition of civil rights organization, voting rights attorneys, voting rights advocates, and a bipartisan group of members of Congress reached an agreement on the provisions of a new bill to respond to the decision in Shelby County. A bipartisan bill designed to move quickly through Congress following the decision was first introduced in 2014 and reintroduced in 2015, the Voting Rights Amendment Act (H.R. 885) (VRAA). It covered only four states and did not have support from some members of Congress who were opposed to any revision of the coverage formula. Another bill has been introduced, known as the Voting Rights Advancement Act of 2015 (S. 1659/H.R. 2867(Advancement Act), designed to strengthen the VRAA of 2014. The Advancement Act contains three separate preclearance provisions: (1) a geographic coverage formula with three standards, Section 4; (2) a preclearance requirement for the most suspect voting changes, Section 5; and (3) an expansion of the existing bail-in provision to include violations of any Federal voting rights laws, Section 3.

23 Under the geographic coverage formula, any state that has had either (1) 15 voting rights violations in the most recent 25-year period or (2) 10 violations, one of which was statewide, on the most recent 25-year period, would be subject to Section 5 preclearance for all of its voting changes, including those at the state and local jurisdictional level, for 10 years starting on January 1 of the year of the most recent voting rights violation. This is a dual statewide coverage formula and would subject 13 states to coverage: Alabama, Arizona, Arkansas, California, Florida, Georgia, Louisiana, Mississippi, New York, North Carolina, South Carolina, Texas, and Virginia. For those states not covered pursuant to the above formulas, preclearance would be required of a sub-jurisdiction within a state if there have been 3 voting rights violations in the jurisdiction in the most recent 25-year period. A sub-jurisdiction would be covered for 10 years starting on January 1 of the year of the most recent voting rights violation.

24 For purposes of the coverage formula, a voting rights violation occurred in a state or political subdivision if: (1) a final judgment has been entered finding a denial or abridgement of voting rights on account of race, color, or membership in a language minority in violation of the Voting Rights Act or the Fourteenth or Fifteenth Amendments; (2) a consent decree or settlement agreement was entered resolving a complaint alleging a denial or abridgement of voting rights on account of race, color, or membership in a language minority in violation of the Voting Rights Act or the Fourteenth or Fifteenth Amendments; (3) the Attorney General imposed an objection under Section 5 to a proposed voting change or the District Court for the District of Columbia denied preclearance to a proposed change. Once a state or local jurisdiction is subject to preclearance under the above formulas, it remains covered for 10 years unless the state of subdivision obtains a bail-out under the existing provisions of Section 4(a) of the VRA.

25 Under Section 6 of the Advancement Act reasonable public notice in a reasonably convenient and accessibly format would be required of any change to: (1) voting qualifications, prerequisites, standards, practices, or procedures; (2) polling place resources; or (3) demographics and electoral districts. Notice should also be provided for any change made in the 180 days prior to any election. The right to vote of any person shall not be denied or abridged because the person failed to comply with any change made by a state or political subdivision if the state or subdivision did not meet the applicable requirements of this section with respect to the change.

26 If any jurisdiction not covered by the geographic coverage formula makes one of the following voting changes, that change would also have to be precleared before it could be implemented: (1) changes to the method of election to add seats elected at-large or to change one or more seats elected by single member seats, where: (i) two or more language minority or racial groups each represent 20% or more of the voting age population (VAP) in the state or political subdivision; or (ii) a single language minority group represents 20% or more of the VAP on an Indian reservation located in whole or in part in a political subdivision; (2) reductions in the kind or type of voting materials that are provided in a language other than English or changes to the manner in which such materials are provided or distributed where no such reduction of change in English language materials has occurred; (3) any change or series of changes within a year to the boundaries of a jurisdiction that reduces by three or more percentage points the proportion of the jurisdiction’s citizen voting age population (CVAP) that is comprised of members of a single racial or language minority group in the jurisdiction, and where: (i) two or more language minority or racial groups each represent 20% or more of the VAP in the political subdivision; or (ii) a single language minority group represents 20% or more of the VAP on an Indian reservation located in whole or in part in a political subdivision; (4) changes to voter registration or verification requirements that create additional requirements or steps in the process; (5) changes to the boundaries of election districts through redistricting in jurisdictions where any racial or language minority group experiences a population increase of at least 10,000 or 20 percent of VAP over the preceding decade as measured by the five year estimate by the U.S. Census American Community Survey; (6) any change that reduces, consolidates, or relocates voting locations, including early, absentee, and election day voting locations in: (i) one or more census tracts within the jurisdiction wherein two or more language minority or racial groups each represent 20% or more of the VAP; or (ii) an Indian reservation wherein at least 20% of the VAP belongs to a single language minority group.

27 The Advancement Act also provides that the Attorney General can send federal observers to any place where she determines there is a substantial risk of racial discrimination at the polls on election day or during the early voting period. It also: makes explicit that tribal governments have the ability to request federal election observers and monitors; ensures that ballots are translated into all written Native languages in jurisdictions with obligations under Section 203 of this Act; requires annual consultation between DOJ and Tribal organizations to discuss voting issues; and requires that jurisdictions offer substantially equal opportunities for voter registration and voting on and off Indian Reservations.

28 The Advancement Act, Section 3, also expands the existing “bail-in” provision of the Voting Rights Act. Under Section 3(c) of the Voting Rights Act, 52 U.S.C. § 10302(c), a court may subject a state or political subdivision to Section 5 coverage “for such period as it may deem appropriate” if the court finds the state or political subdivision has violated the Fourteenth or Fifteenth Amendments. The bail-in provision was not affected by the Shelby County decision but remains in force. Two non-covered states, Arkansas and New Mexico, were subjected to partial preclearance under the bail-in provision, as well as jurisdictions in California, Colorado, Florida, Nebraska, New Mexico, New York, South Dakota, and Tennessee. In Sanchez v. Anaya, C.A. No. 82-0067M (D. N.M. Dec. 17, 1984), the court found New Mexico’s legislative plan violated Section 2 of the Voting Rights Act, and required preclearance of state redistricting plans for a period of ten years. In Jeffers v. Clinton, 740 F.Supp. 585, E.D. Ark, 1990), appeal dismissed, 498 U.S. 1129 (1991), the court found the state had intentionally discriminated against black voters by enacting a majority vote requirement and ordered the state to preclear future laws establishing majority vote requirements and leaving the requirement in place until “further order of this Court.” 740 F.Supp. at 627. And relying upon its “inherent equitable power,” it also ordered Arkansas to preclear its 1990 redistricting plan. Id. at 602. For a discussion of the coverage of the other jurisdictions, see Travis Crum, “The Voting Rights Act’s Secret Weapon: Pocket Trigger Litigation and Dynamic Preclearance,” 119 Yale L.J. 1992, (2010). Violations of the Fourteenth and Fifteenth Amendments can require proof of a discriminatory purpose. See City of Mobile, Ala. v. Bolden, 446 U.S. 56, 62 (1980) (action by a state “violates the Fifteenth Amendment only if motivated by a discriminatory purpose”); Personnel Adm’r of Massachusetts v. Feeney, 442 U.S. 256, 272 (1979) (a law violates the Equal Protection Clause of the Fourteenth Amendment only if it “can be traced to a discriminatory purpose”). A significant exception is violations of the one person, one vote standard of the Fourteenth Amendment. They do not require a finding of discriminatory purpose but only that voting districts are of substantially unequal size. Reynolds v. Sims, 377 U.S. 533, 560-61(1964) (“The fundamental principle of representative government in this country is one of equal representation for equal numbers of people, without regard to race, sex, economic status, or place of residence”). In view of the general requirement of proof of a discriminatory purpose to establish a constitutional violation, the bail-in provision would be strengthened and made more effective in addressing problems of discrimination in voting by providing that a jurisdiction could be subjected to Section 5 preclearance if a court finds a violation of the Fourteenth or Fifteenth Amendments or any federal voting rights law that prohibits discrimination on the basis of race or membership in a language minority. That would include Section 2 of the Voting Rights Act which does not require proof of a discriminatory purpose.

29 In amending and extending the Voting Rights Act in 1982, Congress made clear that a violation of Section 2 “could be proved by showing discriminatory effect alone.” Thornburg v. Gingles, 478 U.S. 30, 35 (1986). And see Chisom v. Roemer, 502 U.S. 380, 383-84 (1991) (“In 1982, Congress amended 2 of the Voting Rights Act to make clear that certain practices and procedures that result in the denial or abridgment of the right to vote are forbidden even though the absence of proof of discriminatory intent protects them from constitutional challenge”). A violation of Section 2 can be established by showing that racial and language minorities “have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice.” 52 U.S.C. § 10301(b). And see Thornburg v. Gingles, 478 U.S. at 36-51 (discussing the factors relevant to a Section 2 vote dilution challenge to multi-member legislative districts). The constitutionality of Section 2 is not in doubt. As the majority in Shelby County held: “Our decision in no way affects the permanent, nationwide ban on racial discrimination in voting found in § 2.” 133 S.Ct. at 2631. Violations of minority voting rights under other provisions of federal law could also trigger bail-in, such as Section 203 of the Voting Rights Act, 52 U.S.C. § 10503 (providing bilingual election requirements for language minorities).

30 The Advancement Act, Section 8, also provides that preliminary injunctive relief applies to all provisions of the VRA and that such relief shall be granted if the complainant raises a “serious question” and that, on balance, granting relief will be less of a hardship to the defendants than to the plaintiff if relief were not granted. The proposed amendment would significantly strengthen Section 2. As noted above, the majority in Shelby County upheld Section 2. The problem with Section 2 is that its enforcement depends on suits brought by the victims of discrimination or the Department of Justice. Not only do the plaintiffs have the burden of proof but Section 2 litigation can be time consuming, expensive and a challenged practice can remain in effect until the termination of the litigation.

31 In extending Section 5 in 2006 Congress concluded the “failure to reauthorize the temporary provisions, given the record established, would leave minority citizens with the inadequate remedy of a Section 2 action.” H.R. Rep. No. 109-478, at 57 (2006). This conclusion was based on extensive testimony that Section 2 litigation places the burden of proof on the victims of discrimination rather than its perpetrators, imposes a heavy financial burden on minority plaintiffs, is heavily work-intensive, cannot prevent enactment of discriminatory voting measures, and allows discriminatorily elected officials to remain in effect for years until litigation is concluded. See, e.g., House Hearing, History, Scope, and Purpose, vol. I, at 92, 97, 101 (2005) (testimony of Nina Perales); id. at 79, 83-84 (testimony of Anita Earls); House Hearing, Evidence of Continued Need, vol. 1, at 97 (2006) (testimony of Joe Rogers). A Federal Judicial Center study found that voting cases required nearly four times more work than the average district court case and ranked as the fifth most work-intensive of the 63 types of cases analyzed. See Federal Judicial Center, 2003-2004 District Court Case Weighting Study, Table 1, pp. 5-6. In Large v. Fremont County, Wyo., 709 F.Supp. 2d 1176 (D. Wyo. 2010), for example, plaintiffs filed their Section 2 complaint in October 2005, but did not get a decision on the merits until April 2010, some five years later. In Levy v. Lexington County, South Carolina, 589 F.3d 708 (4th Cir. 2009), the plaintiffs filed their Section 2 complaint in September 2003, but did not get a decision on the merits until February 2009, which was subsequently vacated and remanded for consideration of additional intervening elections. In Katzenbach, the Court stressed that “Congress had found that case-by-case litigation was inadequate to combat widespread and persistent discrimination in voting, because of the inordinate amount of time and energy required to overcome the obstructionist tactics invariably encountered in these lawsuits.” 383 U.S. at 328; see also id. at 313-15 (explaining why case-by-case litigation had “proved ineffective”). City of Rome also found that: “Case-by-case adjudication had proved too ponderous a method to remedy voting discrimination.” 446 U.S. at 174. Accord, City of Boerne v. Flores, 521 U.S. 507, 526 (1997) (Section 5 was “deemed necessary given the ineffectiveness of the existing voting rights laws, and the slow, costly character of case-by-case litigation”). By providing that preliminary injunctive relief can be granted if the complainant raises a serious question and granting relief will be less of a hardship to the defendant than to the plaintiff if relief were not granted significantly strengthens the impact and effectiveness of Section 2.


32There is no way to predict what Congress will ultimately do in response to Shelby County, but the pending bipartisan amendments to the Voting Rights Act would not only address the voting discrimination the Supreme Court acknowledged still exists, but would be based upon current conditions and not decades-old data and eradicated practices. The restoration of Section 5 and the strengthening of the Voting Rights Act are sorely needed and Congress should enact appropriate legislation as it is authorized to do by the Fourteenth and Fifteenth Amendments.

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1 Roberts, C.J., delivered the opinion of the Court, in which Scalia, Kennedy, Thomas, and Alito, JJ., joined. Thomas, J., filed a concurring opinion in which he stated “I would find §5 of the Voting Rights Act unconstitutional as well.” 133 S.Ct. at 2631. Ginsburg, J., filed a dissenting opinion, in which Breyer, Sotomayor, and Kagan, JJ., joined.

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Laughlin McDonald, « Proposed Amendments to the Voting Rights Act of 1965 », Transatlantica [En ligne], 1 | 2015, mis en ligne le 04 décembre 2015, consulté le 28 mars 2017. URL :

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Laughlin McDonald

Laughlin McDonald is Director Emeritus of the American Civil Liberties Union Voting Rights Project.

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