Sections of the VRA That Require Reauthorization
The Voting Rights Act of 1965 (VRA) is designed to ensure that every American citizen has the right to vote. It was passed in direct response to persistent and purposeful discrimination that denied millions of Americans equal voting rights. Even after the enactment of the Fifteenth Amendment to the Constitution, which guarantees the right to vote to all citizens, regardless of race, color, or previous condition of servitude, many states continued to prevent people of color from voting, using literacy tests, poll taxes, intimidation, threats, and even violence. The Voting Rights Act was passed to end this discrimination.
The VRA prohibits discrimination based on race, and requires certain jurisdictions to provide voting assistance to language minority citizens. The Act, which bars the use of any voting practices or procedures that discriminate against minority voters, has been successfully used to prevent discrimination in voting such as restrictive voter registration requirements, districting plans that dilute minority voting strength, discriminatory annexations, and the location of polling places at sites inaccessible to minority voters.
Which Three Key-Provisions Will Expire Unless Congress Acts to Reauthorize?
- Section 5 requires covered jurisdictions to obtain approval (or “preclearance”) from the U.S. Department of Justice or the U.S. District Court in D.C. before they can change voting practices or procedures. Federal approval requires proof that the proposed change does “not have the purpose and will not have the effect of denying or abridging the right to vote on account of race or color [or membership in a language minority group].”
- Section 203 requires certain jurisdictions to provide bilingual language assistance to voters in communities where there is a high concentration of citizens who are limited English proficient and illiterate.
- Sections 6-9 authorize the federal government to send federal election examiners and observers to certain jurisdictions covered by Section 5 where there is evidence of attempts to intimidate minority voters at the polls.
What Does Section 5 Cover?
- Section 5 applies to places that have a history of significant discrimination and where persistent discrimination continues. Currently, Section 5 covers all or part of 16 states. It applies to any state or county where a test or device was used and where voter registration or turnout among voting-age citizens was below fifty percent for certain elections.
- Because any change in election law or procedure could potentially discriminate against minority voters, all proposed voting changes in covered jurisdictions must be submitted for pre-clearance. Examples of these types of changes are plans for redistricting, annexations, at-large elections, re-registration requirements, polling place changes, and new rules for candidate qualifying. Congress and the Supreme Court have recognized that changes which appear to be insignificant can really be subtle attempts to discriminate.
- Recently, Section 5 was used to prevent discrimination in Kilmichael, Mississippi. When several African- American candidates appeared to be in a strong position to win seats on the local Kilmichael governing council, the all-White board of alderman and the mayor cancelled the election. However, because Mississippi is covered by Section 5 of the VRA, Kilmichael had to submit this plan to the Department of Justice for a determination that the change would not adversely impact minority voters. The DOJ analysis concluded that the decision to cancel the election was discriminatory; thus, the Department prevented the town from canceling the election. When elections were finally held in 2003, three African Americans were elected to the Board of Aldermen and the town elected its first African-American mayor.
How Can Jurisdictions Be Removed from Section 5 Coverage?
The Act includes a “bail-out” mechanism, which allows a jurisdiction to be removed from Section 5 coverage if it can show that:
- it has been in full compliance with the preclearance requirements for the past 10 years;
- no test or device has been used to discriminate on the basis of race, color, or language minority status; and
- no lawsuits against the jurisdiction, alleging voting discrimination, are pending.
Should Section 5 Be Made Permanent or Apply Nationwide?
- While making this provision permanent or applying it nationwide may seem attractive, doing so would extend the VRA beyond the targeted jurisdictions that have an established history of discrimination and make it vulnerable to a constitutional challenge.
- Section 5 must be able to withstand “strict scrutiny” by the courts. What this means, in part, is that the provision must be “narrowly tailored” to address the harms it is designed to cure and the Congress must show that the harms or discrimination continue to persist each time it reauthorizes the VRA.
- A “nationwide” Section 5 would also be vulnerable to constitutional attack as not “narrowly tailored” or “congruent and proportional” to address the harms it is designed to cure – namely a history of significant discriminating against minority voters.
- In addition, nationwide application of Section 5 would be extremely difficult to administer, given the volume of voting changes that would have to be reviewed. This expansion of coverage would dilute the Department of Justice’s ability to appropriately focus their work on those jurisdictions where discrimination has been and continues to be a problem.
Where Do the Language Minority Sections of the Act Apply?
- Section 203 was enacted in 1975 and reauthorized in 1982 and 1992 because Congress found that discrimination against language minorities limited the ability of limited-English proficient (LEP) members of those communities to participate effectively in the electoral process.
- Section 203 applies statewide to five states (Alaska for Alaska Natives and Arizona, California, New Mexico, and Texas for Spanish Heritage) and portions of 26 other states. The total number of counties or political subdivisions specifically identified for Section 203 coverage include:
- 27 jurisdictions covered for Alaska Natives;
- 81 for American Indians;
- 425 for Spanish Heritage; and
- 16 for Asian Americans.
- A community with one of these language groups will qualify for language assistance under Section 203 of the Act if more than 5% or 10,000 of the voting-age citizens in a jurisdiction belong to a single language minority community and have limited English proficiency; AND the illiteracy rate of voting-age citizens in the language minority group is higher than the national illiteracy rate.
- Certain Section 203-covered jurisdictions that had English-only literacy tests also are covered by Section 5.
- Under Section 203 covered jurisdictions must provide written materials or oral assistance based upon the actual needs of the language-minority groups through targeted assistance. No written materials have to be provided in Alaska Native and American Indian languages that are historically unwritten.