—F. Michael Higginbotham
Recently, the Supreme Court heard oral arguments in Shelby County v. Holder, examining the constitutionality of Section 5 “pre-clearance” provisions of the Voting Rights Act. Section 5 mandates that states or portions thereof with a history of discriminatory voting laws get prior approval by the Department of Justice for any changes to their election laws. In 2009, the Supreme Court upheld Section 5, but Chief Justice Roberts indicated that the section creates “serious constitutional questions” and should be “justified by current needs.”
For 47 years, the Voting Rights Act has prohibited certain racially discriminatory election practices and given the federal government supervisory powers over jurisdictions that used such practices. This supervisory role has proven crucial to ensuring protections for racial minorities previously excluded from their constitutionally guaranteed right to vote.
In signing the bill, President Lyndon Johnson termed it “a monumental law in the history of American freedom.” He was right. Shortly after the law was enacted, 800,000 blacks registered to vote in covered jurisdictions. Few minorities were registered prior to its passage. Today, there are over 10,000 elected black officials; in 1965, there were approximately 300.
Because of this progress, some question whether Section 5 is still needed. Recent voting irregularities in the covered jurisdictions, where allegations of minority voter suppression have been lodged due to faulty election machines, purges in voter rolls, burdensome voter identification requirements, and winner-take-all at-large districting mandates, suggest that it is.
It is in this last category where Section 5 has been most effective preventing changes in election practices that would undermine the voting power of racial minorities. The Shelby County case provides insight. Prior to local elections in 2008, the City of Calera, located in Shelby County, redrew its jurisdictional boundaries. The redrawn boundary eliminated the City Council’s only majority-black district by adding several white subdivisions adjacent to Calera while refusing to incorporate a black area located nearby. The lone majority-black district was reduced from 70 to 30 percent black, resulting in the election loss of Ernest Montgomery, the only black city councilperson. The Justice Department would not approve the redistricting plan and, after extensive negotiations, Calera adopted a more inclusive at-large election system. A system that prevented a white numerical majority from controlling 100 percent of the six positions on the city council and that resulted in Montgomery receiving the most votes of all council candidates.
While much progress has been made over the last few decades including black registration rates equivalent to whites, racially polarized voting patterns coupled with vote prevention and dilution practices suggest a continued need for vigilance. In 2001, the white mayor and all white city council in Kilmichael, Mississippi cancelled elections shortly after blacks became a majority of registered voters. Last year in Texas, two federal courts identified multiple examples of more sophisticated, yet equally outrageous, discriminatory redistricting practices including removing economic centers from majority-minority districts and placing them in white districts without any financial reasons for doing so, and removing minorities from such districts who have voted in prior elections and replacing them with minorities who have not recently voted in order to maintain the appearance of a majority-minority district without the likelihood of minorities casting the most ballots. In each situation, Section 5 was used to prohibit the discriminatory practice. With so many clearly identified problems, it is hard to believe that five justices of the Supreme Court would decide that anti-discrimination protections in Section 5 are no longer “justified by current needs”.
F. Michael Higginbotham is the Wilson H. Elkins Professor of Law at the University of Baltimore School of Law. He is the author of Race Law: Cases, Commentary, and Questions and Ghosts of Jim Crow: Ending Racism in Post-Racial America (NYU Press, 2013).