Voting Rights Act Frequently Asked Questions
- What are the key provisions of the Voting Rights Act?
- Why is the Voting Rights Act an issue now?
- How does pre-clearance under Section 5 work?
- What kinds of laws and practices affecting voting must be pre-cleared?
- Where does Section 5 apply?
- Because of its limited application, is Section 5 used to "punish" certain states?
- Is Section 5 constitutional?
- Why is Section 5 needed if law suits against voting discrimination can be brought under Section 2?
- Is Section 5 still needed?
- What is "bail-out"?
- Is there a bail-out provision in the present Voting Rights Act?
- What is Section 2 of the Voting Rights Act?
- How is Section 2 different from Section 5?
- What role do federal examiners and observers play in protecting the right to vote, and why is it important that Sections 6-9 be renewed?
- What is the purpose/intent of Section 203?
- What does Section 203 do?
- What minority populations are covered by Section 203?
- Why are these groups covered?
- When is a jurisdiction covered under Section 203?
- How many jurisdictions are affected by Section 203?
- What is required under Section 203?
- Does Section 203 work?
- Is Section 203 still needed?
- Does Section 203 promote cultural separatism?
- Why should we help language minorities who are citizens--shouldn't they be able to read and write English fluently?
- Does it cost a lot to provide bilingual assistance?
- Should Section 5 of the VRA be made permanent?
- Should Section 5 apply nationwide?
- Why is the VRA important to voters in state or jurisdictions not covered by Sections 5 and 203?
- Why are congressional hearings important for the reauthorization effort?
What are the key provisions of the Voting Rights Act?
The most important permanent provisions are Section 2, which bans racial discrimination in voting nationwide, and Sections 4 and 201, which ban literacy tests nationwide. The most important temporary provisions - provisions that get periodically reauthorized by Congress - are:
- Section 5, which requires certain state and local governments (called "covered jurisdictions") to "preclear" proposed changes in voting or election procedures with either the U.S. Department of Justice or the U.S. District Court for the District of Columbia, and
- Section 203, which requires that certain state and local jurisdictions provide assistance in languages other than English to voters who are not literate or fluent in English.
- Sections 6-9, which give the U.S. Attorney General the power to send federal examiners and observers to monitor elections.
Why is the Voting Rights Act an issue now?
The temporary provisions of the VRA (Sections 5, 6-9, and 203) will expire on August 6, 2007, unless Congress renews them.
How does pre-clearance under Section 5 work?
A covered jurisdiction that wants to change laws and practices affecting voting is required to submit the change along with a letter explaining the change to the Department of Justice. The jurisdiction must demonstrate that the 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]." Citizens may submit comments to the Department of Justice on how the proposed change will affect their community. Within 60 days, the department responds either by approving or "preclearing" the change or by objecting to it. An objection bars the jurisdiction from implementing the proposed change. If an objection is issued and a jurisdiction wishes to appeal, the jurisdiction may seek preclearance through the D.C. District Court. The jurisdiction may alternatively preclear its changes through a lawsuit in the D.C. District Court.
What kinds of laws and practices affecting voting must be pre-cleared?
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 preclearance. Examples are plans for redistricting, annexation, at-large elections, re-registration requirements, polling place changes, and new rules for candidate qualifying. The Supreme Court has recognized that seemingly insignificant changes can really be subtle attempts to discriminate.
Where does Section 5 apply?
Section 5 affects all or part of the following 16 states: Alabama, Alaska, Arizona, Georgia, Louisiana, Mississippi, South Carolina, and Texas; and most of Virginia, 4 counties in California, 5 counties in Florida, 2 townships in Michigan, 10 towns in New Hampshire, 3 counties in New York, 40 counties in North Carolina, and two counties in South Dakota. A formula designed by Congress applies Section 5 to any state or county where a literacy test was used as of November 1, 1964, and where a participation rate of under 50 percent by eligible voters in the 1964 presidential election showed the test had a racially discriminatory basis. Later amendments to the Act included the years 1968 and 1972 in the coverage formula.
Because of its limited application, is Section 5 used to "punish" certain states?
Section 5 is not punitive; it prohibits discriminatory changes affecting the right to vote. The Voting Rights Act has no provisions that name particular states or areas. Section 5 is aimed at a type of problem, not a state or region. It is designed to prevent backsliding by states whose discriminatory literacy tests were outlawed by the original act in 1965. Section 4 banned literacy tests in states where they were used to discriminate, but experience showed that when one method of voting discrimination was blocked - either through court action or a new law - another method would suddenly appear as a replacement. Congress therefore included the Section 5 preclearance provision to prevent the implementation of new discriminatory laws. The objections made since 1965 showed the covered jurisdictions have attempted to use gerrymandering and other forms of discrimination to abridge the right to vote. Section 5 has focused on these efforts.
Is Section 5 constitutional?
It was held constitutional by the U.S. Supreme Court in 1966, in South Carolina v. Katzenbach. The court interpreted Section 5 as being within the realm of the 15th Amendment, which gives Congress broad powers to enact legislation prohibiting voting discrimination. More recent cases have reaffirmed the constitutionality of Section 5.
Why is Section 5 needed if law suits against voting discrimination can be brought under Section 2?
Section 5 has been the only speedy, cost efficient, and effective mechanism ever devised against voting discrimination. Prior to the enactment of the VRA, constitutional litigation failed to eliminate discrimination affecting voting because jurisdictions simply developed new methods of discriminating after one method - such as "white primaries" - was held unconstitutional. While a law or practice was being litigated, it usually remained enforceable and thus voting rights violations continued during protracted cases. Section 5 now provides a simple administrative alternative or a judicial avenue in which jurisdictions have only to show that a change is not discriminatory.
Is Section 5 still needed?
Yes. Public officials in covered states continue to adopt election law changes which deny minorities' equal access to the political process. Many of the more blatant past abuses, such as poll taxes and discriminatory literacy tests, have been eliminated but there remain a wide variety of methods employed to dilute minority votes.
Since the VRA has been in effect, more than 1,000 objections have been lodged by the Justice Department against voting changes in the covered jurisdictions. While the number of objections seems small compared to the number of submissions, a single objection can protect thousands of voters from unlawful discrimination.
What is "bail-out"?
"Bail-out" refers to the way in which jurisdictions covered by Section 5 terminate their coverage.
Is there a bail-out provision in the present Voting Rights Act?
Yes. Under the "bail-out" provision in Section 4 of the VRA, a jurisdiction can be removed from 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.
Although some jurisdictions have utilized the "bail-out" provisions which set forth clear and demonstrable standards, they have not been widely used.
What is Section 2 of the Voting Rights Act?
Section 2 is a permanent provision of the Act that prohibits practices which deny or abridge the right to vote. It reflects the view that while there is no need for a nationwide pre-clearance requirement, there is a need for a workable, careful standard that allows Blacks, Hispanics, Asian Americans, American Indians, Alaska Natives and other minorities to challenge discriminatory voting practices that are not covered by Section 5.
How is Section 2 different from Section 5?
Section 2 prohibits practices that deny or abridge the right to vote. It allows the Attorney General or private plaintiffs to challenge discriminatory practices in areas of the country not covered by Section 5 of the Act. Additionally, it is the only statutory recourse to challenge discriminatory voting practices that were enacted in "covered" (Section 5) jurisdictions prior to 1965.
Section 5 is an effective administrative or court procedure that prohibits practices which have the purpose or effect of denying or abridging the right to vote. Section 5 has limited geographical coverage and does not cover practices in these "covered" areas that were enacted prior to November 1, 1964.
Under Section 2, the Attorney General or private plaintiffs can challenge existing discriminatory voting practices by filing suit in local federal district courts. The plaintiff bears the burden of proving that the practice is discriminatory.
Under Section 5, covered jurisdictions must submit any changes in voting practices or laws to the U.S. Department of Justice or to the District Court for the District of Columbia before the change can be implemented. The jurisdiction bears the burden of proving that the change does not discriminate against minority voters. Section 5 has been effective in blocking more than 1000 discriminatory voting changes and has acted as a deterrent to the enactment of many other such procedures.
What role do federal examiners and observers play in protecting the right to vote, and why is it important that Sections 6-9 be renewed?
Today, election observers and examiners are assigned to monitor elections in any certified jurisdiction for the purpose of observing whether eligible voters are allowed to vote and whether votes cast by eligible voters are properly being counted. The main function of the examiner in practice is to receive phone calls from individuals who are reporting problems. The observers essentially serve as witnesses for what occurs in the polling place and during the counting of the vote.
The case of United States v. Burks County shows the value of observers in documenting problems within the polls. The United States won the case based upon the court-appointed observers' substantial evidence of hostile and unequal treatment of Hispanic and Spanish speaking voters by poll officials. The Burks case also illustrates why observers have a deterrent effect. Because poll workers, election officials, and others involved in the election process know their actions are being observed and recorded, some individuals are going to be discouraged from engaging in inappropriate behavior.
What is the purpose/intent of Section 203?
In 1975, Congress permanently banned the use of literacy tests and other discriminatory registration and voting practices, including English-only materials, in any election nationwide. Congress also broadened the scope of voting rights protection to include limited English proficient voters of Asian American, Hispanic, and American Indian or Alaska Native descent. Congress found these groups had historically faced, and continued to face, discrimination based on their race and ethnicity. Based on these findings, Congress enacted Section 203.
What does Section 203 do?
Section 203 provides citizens who are not yet fluent in English the opportunity to be informed voters and participate effectively in our representative democracy by requiring covered jurisdictions to provide language assistance to such citizens.
What minority populations are covered by Section 203?
Section 203 applies to four minority groups: American Indians, Asian Americans, Alaska Natives, and Latinos.
Why are these groups covered?
Congress has repeatedly found that these four language minority groups face discrimination based on race, ethnicity or national origin. Discriminatory voting practices and procedures systematically denied these covered groups their voting rights. This discrimination still exists today. In the 2004 elections, there was evidence of Asian American and Latino voters in jurisdictions across the country being singled out because of their "foreign-sounding names" or "foreign appearance" and facing challenges to their eligibility to vote as well as unlawful requests for identification. Similarly, in some parts of the country, Native American voters were singled out and unlawfully required to provide identification during these elections.
When is a jurisdiction covered under Section 203?
A jurisdiction is covered under Section 203 where the number of limited English proficient United States citizens of voting age in a single language group within the jurisdiction who are Asian, Hispanic or Native American:
- Is more than 10,000, or
- Is more than five percent of all voting-age citizens, or
- Exceeds five percent of all reservation residents on an Indian reservation; and
- Has an illiteracy rate higher than the national illiteracy rate.
How many jurisdictions are affected by Section 203?
According to the Census Bureau's 2002 determination of covered jurisdictions, 425 out of a total of more than 3,000 jurisdictions nationwide must provide language assistance to Spanish speakers, 16 to Asian Americans (some in multiple Asian languages), 81 to American Indians (some in multiple languages), and 27 to Alaska Natives (some in multiple languages). Additionally, under Section 4(f)(4) of the Voting Rights Act, 3 states in their entirety (Alaska, Arizona and Texas) and a total of 19 counties or townships in 6 other states must provide language assistance similar to that provided under Section 203.
What is required under Section 203?
Any election materials provided in English must also be provided in the language of the covered minority group. Election information includes registration or voting notices, forms, instructions, ballots, and any other materials or information relating to the electoral process. Where the language of a covered minority group has no written form, the state or locality is only required to provide oral instructions, information, and assistance.
In addition to providing translated election information, compliance with Section 203 requires that the information be effectively disseminated to covered language minority groups. Communication can be facilitated by posting public notices, publicizing the availability of language assistance materials through mainstream and ethnic media, and providing bilingual poll workers at polling places who can assist voters.
Does Section 203 work?
Yes, Section 203 works to overcome barriers to voting and increases political participation by and electoral representation of minority groups.
For example, in San Diego County, voter registration among Latinos and Filipinos rose over 20 percent after the Department of Justice (DOJ) enforced Section 203 requirements. Vietnamese registrations increased by 40 percent after the county agreed to provide language assistance in Vietnamese.
In Harris County, Texas, the turnout among Vietnamese eligible voters doubled following the DOJ's efforts to remedy the county's failure to provide Vietnamese ballots on its electronic voting machines in 2003. In 2004, the first Vietnamese American was elected to the state legislature.
Is Section 203 still needed?
Yes, Section 203 is still needed. Discrimination is prevalent today, and disparities still exist for minorities. The gap between minority and white voters in registration and turnout remains in the double-digits for the Asian American, Latino, and Native American communities. Combined with the tendency toward racial bloc voting in many districts (where voters choose candidates who are almost exclusively of their own race/ethnicity), it becomes even more difficult for minorities to elect representatives of their choice.
We continue to see evidence of poll workers exhibiting hostility towards minority citizens who cannot speak English fluently. There have been reports of intimidation of minority voters based on their race, national origin or ethnicity. Barriers continue to restrict access to voting for many language minorities, which limits their civic engagement and political participation.
Does Section 203 promote bilingual separatism?
No. Bilingual elections promote the integration and political participation of people who had previously been excluded from the political process due to their lack of fluency in English.
Why should we help language minorities who are citizens - shouldn't they be able to read and write English fluently?
The United States encourages people who have been here for a long time and who have been contributing to society to be civically engaged. As a result, certain persons are exempt from English literacy requirements when applying for citizenship, such as the elderly who have resided in the United States for a lengthy period of time, the physically or developmentally disabled, and certain Hmong veterans who helped to save American lives during the Vietnam War and came to the United States as refugees.
In addition, voting can be an intimidating and complicated process, even for voters who are native-English speakers. For new citizens whose first language is not English, the voting process is even more difficult to maneuver. Language assistance also helps native-born voters who, because of a lack of access to educational opportunities, are limited English proficient. Without language assistance, many may simply decide to bypass the whole process rather than ask for help - especially when they are ridiculed when they try to ask for help. For many new citizens, one of the greatest treasures received from becoming a U.S. citizen is the right to vote - a right that many did not receive from the country of their birth. For our democracy to flourish, all of its stakeholders need to participate.
Does it cost a lot to provide bilingual assistance?
No. Where Section 203 is implemented properly, bilingual assistance accounts for only a small fraction of total elections costs. For example, in a 2005 study of election officials in the 31 states covered by Section 203, 39.5 percent reported that they incur no additional costs for providing language assistance. Most of the remaining responding jurisdictions reported that they incur expenses of less than 1.5 percent of their entire election budgets for oral assistance and less than 3 percent for written assistance. This study mirrored the results of General Accounting Office studies conducted in 1984 and 1997, which found minimal costs on the part of jurisdictions to provide language assistance.
Should Section 5 of the VRA be made permanent?
While making this provision permanent may seem attractive, doing so would make it vulnerable to a constitutional challenge. Because Section 5 is race conscious, it 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. Many legal experts question whether the Court would find a permanent Section 5 to be "narrowly tailored," such as to survive a constitutional attack.
Should Section 5 apply nationwide?
No. 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, as required by the Supreme Court's recent precedents. Section 5 is directed at jurisdictions with a history of 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 there is a history of voting discrimination.
Why is the VRA important to voters in states or jurisdictions that are not covered by Sections 5 or 203?
The foundation of our democratic form of government is the right to vote and every person should have the opportunity to participate in our democracy. To ensure that all Americans have this important tool to influence the policies the government adopts that affect every aspect of our lives, we must make sure that every American can cast an effective ballot. Unfortunately, even today, many minority voters face barriers to voting.
Why are congressional hearings important for the reauthorization effort?
The Supreme Court has made clear in recent years that it will require Congress to establish a detailed record, through hearings and legislative findings, in order to ensure that provisions such as these survive constitutional scrutiny.