Political Animal


November 09, 2012 5:17 PM Beginning of End For Section 5?

By Ed Kilgore

So the U.S. Supreme Court granted cert today in a case in which an Alabama county is challenging the constitutionality of Section 5 of the Voting Rights Act of 1965. Lyle Denniston of SCOTUSblog has the basic info:

Specially at issue is the constitutionality of the law’s Section 5, the most important provision, under which nine states and parts of seven others with a past history of racial bias in voting must get official clearance in Washington before they may put into effect any change in election laws or procedures, no matter how small. The Court came close to striking down that section three years ago, but instead sent Congress clear signals that it should update the law so that it reflects more recent conditions, especially in the South. Congress did nothing in reaction.

At MoJo, Adam Serwer sounds the alarm:

Although Section 5 survived in 2009, conservative Justices appeared to believe that the law was discriminatory—against Southern white people. “Is it your position that today Southerners are more likely to discriminate than Northerners?” Chief Justice John Roberts demanded of the attorney defending the Voting Rights Act at the time. Despite the 8-1 vote, the 2009 decision was widely seen as leaving Section 5 hanging by a thread. The justices hinted very strongly that Congress, which had just reauthorized the Voting Rights Act in its entirety in 2006, should change the law soon or risk it being declared unconstitutional next time around.
Now it looks like the conservatives on the court will get their chance.

The timing is certainly inappropriate, immediately after a national election in which Republican elected officials made the most concerted and open (if largely unsuccessful) effort to suppress minority voting in many years. It’s worth noting that Section 5 is not the entire VRA—and a good thing, too, since it doesn’t cover Ohio or Pennsylvania. But its continuing importance was illustrated most recently when a federal court would not allow Rick Scott to restrict early voting in those Florida counties covered by Section 5. It’s an essential part of the already limited machinery of voting rights in this country, and if Adam’s correct, it may take an entirely new—and perhaps national—effort to create something to take its place.

Ed Kilgore is a contributing writer to the Washington Monthly. He is managing editor for The Democratic Strategist and a senior fellow at the Progressive Policy Institute. Find him on Twitter: @ed_kilgore.


  • howard on November 09, 2012 5:34 PM:

    my answer to the chief justice is "damn straight it's more likely that southerners will discriminate than northerners," and my most recent piece of evidence would be the difference between how southern whites vote and how the rest of the country's white people vote when offered a black candidate for president.

  • Ohio rick on November 09, 2012 5:36 PM:

    I dunno...I might like to see a fight over voting rights given how this election went.

  • boatboy_srq on November 09, 2012 5:47 PM:

    “Is it your position that today Southerners are more likely to discriminate than Northerners?”

    Perhaps, and perhaps not. And perhaps "likelihood to discriminate" itself should be the focus of the argument. I submit Mr. "Put the White Back in the White House", seen recently at an Ohio campaign event, among the many instances of barely-concealed racism from the last four years. But if Justice Roberts' implication - that the "likelihood to discriminate" has in fact leveled between South and North, then the appropriate action, rather than striking Section 5, would be for broader application, since it's become fairly obvious that the GOTea rank-and-file isn't particularly inclined to accommodate niCLANGs, and responds far too eagerly to this kind of garbage.

  • Robert on November 09, 2012 6:06 PM:

    Howard; I've got 4 words for you: Pennsylvania Voter ID law.

    Spend a decade or so wandering the northern Appalachian hills and get back to me on how rural northern whites vote for Black pols.

  • JustMe on November 09, 2012 6:10 PM:

    Truthfully, PA, Ohio and the rest of Florida are making a strong case for the fact that not *just* the selected states should have closer civil rights monitoring on their elections.

  • exlibra on November 09, 2012 6:13 PM:

    Like boatboy, I'd like to see that law *expanded* because it's not only Southerners who're likely to do everything they can to discriminate. Vide Ohio and PA, in addition to Florida, including parts of it which are *not* covered by Section 5 (the assumption being that those parts don't have the tradition of discrimination?). Unless, of course, one counts most of the US as "southern"...

  • c u n d gulag on November 09, 2012 6:20 PM:

    Yes, SCOTUS Justices, don't let cries of "VOTER FRAUD" by dozens of people in the last dozen years, let you think that there are any white people looking to 'Suppress" the votes of tens of millions of citizens - in the South, AND the North.

    Nothing to see here, folks!
    Move along!
    We said "Move along, folks! Or else we'll tell the police that they can use Taser's like they were verbal warnings!"
    "Caphiche?!?!?!", said Antonin Scalia...

  • bdop4 on November 09, 2012 6:47 PM:

    I agree with others that Section 5 should be applied uniformly to ALL THE STATES. There, discrimination problem solved.

  • audax minor on November 09, 2012 7:16 PM:

    If this is how it goes down, I think your pessimism about an apathetic black/liberal electorate in 2014 would premature.

  • Yellowdog on November 11, 2012 6:31 PM:

    SCOTUS is the ultimate Village bubble. The Five will hold hands and stick together--and it will be a sad day for participatory democracy.

  • jeri on November 15, 2012 12:21 PM:

    “Is it your position that today Southerners are more likely to discriminate than Northerners?” Chief Justice John Roberts demanded...

    What a stupid question. The answer is that the law has nothing to do with Southern vs. Northern discrimination. It is a response to past behavior of some states/districts which have shown they must be supervised. The geographic location of these states is immaterial. As evidenced by recent behavior of other states such as OH and PA.