Delores Freelon had been a reliable voter for decades. But in 2011, her home state of South Carolina passed a restrictive photo ID law that threatened to prevent her from casting a ballot. Freelon’s driver’s license was set to expire later that year, and she couldn’t get a new one without a birth certificate. But like many older African-Americans born in the rural south, her birth certificate had no first name on it. Though Freelon had a Social Security card, a Medicare card, and a state health insurance card all bearing her name, she appeared to be out of luck.
In the end, Freelon was able to vote last fall. That’s because the federal government stepped in and stopped South Carolina’s law from going into effect. To do so, it relied on Section 5, a provision of the Voting Rights Act (VRA) that allows the Justice Department and the courts to block any election changes made by certain states and jurisdictions with a history of discrimination, if the change is deemed to harm minority voting rights.
For nearly half a century, since not long after the days of literacy tests and other tactics designed to prevent blacks from voting, Section 5 has helped ensure that racial minorities have an equal voice at the ballot box, voting-rights advocates say. But that could end soon. On Wednesday, the Supreme Court will begin hearing arguments in Shelby County v. Holder, in which an Alabama county, backed by an array of conservative interests, argues that Section 5 is unconstitutional and should be scrapped.
In recent years, Republicans have pulled out a slew of tactics—from voter ID laws like South Carolina’s, to purges of voting rolls, to reductions in early voting—designed to make it harder for Democratic-leaning groups to vote. But getting rid of Section 5 would represent the voter-suppression movement’s biggest victory yet, and would mark a major step backwards on a core civil-rights issue that many Americans assumed was long since decided.
The Voting Rights Act is “the most powerful and most effective civil-rights law in U.S. history,” Laura Murphy, the ACLU’s legislative director who worked on the law’s re-authorization in 1982 and again in 2006, told reporters Thursday. And Section 5, Murphy added, is “the most important part of the law.”
In addition to the South Carolina law that could have disenfranchised Delores Freelon, Section 5’s key role in protecting minority voting rights has been showcased in several other recent high-profile cases.
Last year, in Texas alone, it was used to halt a similar photo ID law, as well as a GOP-backed redistricting plan that a court concluded was specifically aimed at reducing the voting power of Hispanics.
Section 5 also prevented Florida’s Republican governor, Rick Scott, from reducing the number of days for early voting—which black voters take advantage of more than whites—in the counties covered by the provision.
If Section 5 were struck down, the Voting Rights Act would still offer tools to fight voting discrimination. But none are nearly as effective as Section 5, voting-rights advocates say. That’s because under that provision, the burden of proof is on the state, county, or city to prove that the election change it’s making won’t hurt minority voters, allowing the federal government to quickly step in to block changes that don’t pass muster. Under other provisions of the VRA, the burden is on the victims, with the result that cases often drag on for years.
“Section 5 is the great stop sign, the great protector,” Barbara Arnwine, the president of the Lawyers Committee for Civil Rights, told reporters Thursday. “There is no other tool in the Voting Rights Act that is the equivalent of Section 5.”
As President Obama, a former constitutional law professor himself, put it in an interview Thursday with SiriusXM radio host Joe Madison: "You’d see less protection before an election with respect to voting rights. People could keep coming up with new schemes each election. Even if ultimately they were ruled to violate the Voting Rights Act, it’d be hard for us to catch those things up front to make sure that elections are done in an equitable way."
The Shelby County case represents the culmination of decades of work by conservative opponents of racial protections. As The Nation’s Ari Berman recently detailed, in 2006 a group of conservative legal activists mounted a campaign to oppose the VRA's re-authorization, depicting the law as an unjust federal intrusion on state sovereignty. But even the conservative Republican congress wasn’t sold: The VRA was overwhelmingly reauthorized in legislation signed by President Bush.
Two years later, the city of Calera, Ala. redrew the boundaries for its council districts in a way that got rid of the city’s only majority-black district, with the result that the incumbent lost re-election by two votes.
Under Section 5, the Justice Department voided the election result and required Calera to change its election system. At that point, Berman reported, Ed Blum, one of the conservative activists who had led the 2006 charge against the VRA—and whose organization has received funding from the Koch Brothers—convinced Shelby County to challenge the constitutionality of Section 5. A federal appeals court upheld the provision last year, but the Supreme Court announced in November it would review that decision, setting the stage for next week's arguments.
Opponents of Section 5 argue that by singling out certain states and jurisdictions—most of which are in the south—the provision violates the Constitution’s guarantee, in the 14th Amendment, of equal protection under the law. They say the progress the south has made on race relations since the 1960s means Section 5 is no longer needed.
Voting-rights advocates agree the south has come a long way, but say there’s still no shortage of efforts to dilute minority voting power, as those recent cases indicate. And the fact that those voter-suppression tactics have lately spread to non-southern GOP-controlled states like Pennsylvania, Ohio and Wisconsin, meaning southern jurisdictions aren’t the only offenders, only underlines the persistence of the problem. Against the 14th Amendment, they cite the 15th, which authorizes Congress to ensure that voting laws don’t discriminate on the basis of race.
“While there is no doubt progress has been made since 1965, the last election vividly showed that voting suppression and discrimination are not just problems of the past…but problems of the present,” Steven Shapiro, the ACLU’s legal director, told reporters Thursday.
A recent study by a group of political science professors, submitted to the court as an amicus brief, found “clear and statistically significant evidence” that racial discrimination is still widespread today. And it found that jurisdictions covered by Section 5 were twice as likely as other areas to adopt policies that make voting harder for minorities.
The court’s ruling likely won’t be announced until June, and where it will come down is anyone’s guess. The four conservative justices appear likely to vote to scrap Section 5—Justice Clarence Thomas has written that it's unconstitutional—while their four liberal counterparts will likely uphold it. As so often, that figures to leave Justice Anthony Kennedy as the swing vote.
That prospect may not be comforting to supporters of voting rights. In a similar 2009 case involving a Texas municipal district—also brought with support from Blum—the court ultimately issued a ruling that steered clear of the question of Section 5’s constitutionality. But Kennedy nonetheless sounded skeptical about singling out some jurisdictions for extra scrutiny.
“The question is whether or not [Section 5] should be continued with this differentiation between the states,” he said, adding that the provision suggests “the sovereignty of Georgia is less than the sovereign dignity of Ohio, the sovereignty of Alabama is less than the sovereign dignity of Michigan.”
If Kennedy approaches the case from that perspective, Section 5 could be in trouble. But if instead he prioritizes the right to vote free from discrimination—what Arnwine calls “the most fundamental right we have as Americans”—it figures to remain a crucial tool of voter protection for years to come.