Myths & Facts about Section 5 of the Voting Rights Act
Myth: Section 5 is unnecessary today because voting discrimination has been eliminated.
Fact: Election officials still attempt to implement election law changes that would deny minorities equal access to the political process. The number of objections (626) interposed between August 5, 1982, when Section 5 was last reauthorized, and December 30, 2004 was greater than the number of objections before 1982, constituting 56 percent of the total objections under the VRA. [Source: NATIONAL COMMISSION ON THE VOTING RIGHTS ACT 2006 (quoting DOJ statistics)]
Myth: Section 5 unfairly punishes covered jurisdictions.
Fact: Congress approved Section 5 to prevent the implementation of new discriminatory laws or practices, not to punish for past practices. Section 5 applies to places that have a history of significant discrimination and where ongoing and persistent discrimination continues. Under the “bail-out” provision of the VRA, a jurisdiction can be removed from Section 5 coverage if it shows that it has not engaged in voting discrimination over the past ten years and has complied with the VRA. Recently, eleven jurisdictions in Virginia have done so. [Sources: 42 U.S.C. §§ 1973b(a)(1), 1973b(f)(1); South Carolina v. Katzenbach, 383 U.S. 301, 333-34 (1966); http://www.usdoj.gov/crt/voting/sec_5/covered.htm]
Myth: Section 5 is unnecessary because the Constitution and other laws protect voters from voting discrimination.
Fact: Section 5 is the most efficient, low-cost, targeted and effective mechanism ever implemented to combat voting discrimination. Section 5 prevents voting discrimination before it occurs by requiring covered jurisdictions to first show that a change is not discriminatory. Prior to Section 5, covered jurisdictions took extraordinary measures to develop new methods of discriminating after other methods were held unconstitutional. [Source: South Carolina v. Katzenbach, 383 U.S. 301, 335 (1966)]
Myth: Section 5 pertains only to redistricting.
Fact: All proposed voting changes in covered jurisdictions, not just redistricting, must be submitted for preclearance. “Congress prohibited those jurisdictions from implementing any change in voting procedure without obtaining preclearance under § 5” because it was concerned that “covered jurisdictions would exercise their ingenuity to devise new and subtle forms of discrimination.” Examples of covered voting changes include: voter qualification or eligibility procedures; registration; polling place locations; methods of election; implementation of majority vote requirements or numbered posts; candidate qualifications; terms of office; ballot propositions or referenda, etc. [Source: Hathorn v. Lovorn, 457 U.S. 255, 268 (1982); 42 U.S.C. § 1973c; 28 C.F.R. § 51.13]
Myth: Section 5 should be made permanent or be applied nationwide.
Fact: Making Section 5 permanent or applying it nationwide would make it vulnerable to a constitutional challenge and less effective. A permanent or a nationwide provision would be vulnerable to constitutional attack because it would not be narrowly tailored or congruent and proportional to address the harms it is designed to cure. Nationwide coverage would also make it harder to enforce Section 5 in areas where it is needed. The existing coverage formula has proven to be very effective in preventing voting discrimination in places where there has been significant discrimination in voting. [Sources: City of Boerne v. Flores, 521 U.S. 507 (1997); S. Rep. No. 94-295 at 32; 121 Cong. Rec. H4895 (June 4, 1975) (statement of Rep. Edwards)]