The 2000 Elections and Voting Rights Act Renewal

By Ellen Spears

Vol. 22, No. 2, 2000 pp. 14-15

Alarmist email messages surfaced in the late 1990s claiming that "African-Americans will lose their right to vote in 2007." While the 110th Congress will not in any direct sense, be deciding whether or not black or Latino voters will retain the right to vote, key provisions of the Voting Rights Act of 1965--including Section 5, which gives the U.S. Department of Justice enforcement powers in covered jurisdictions--will end in 2007 unless Congress moves to extend them.

Why does this event in 2007 matter so much right now, when congressional action on renewal is seven years away? The 2000 elections will set the stage for political decision-making throughout the decade: electing a president who may make more than one Supreme Court appointment, installing state legislators who will decide the contours of congressional delegations for the decade, and shaping the partisan balance in Congress. The campaign to extend this important protection, which gives a tool to effectively enforce the Voting Rights Act, should begin now, on the thirty-fifth anniversary of the Act.

Voting Enforcement Under Fire

The new president will also name Justice Department leadership, whose enforcement authority in voting rights lawsuits has been under fire during the past decade. Opponents of majority-minority districts in the 1990s moved from arguing against the Justice Department's application of Section 5 of the Voting Rights Act to arguing against the constitutionality of Section 5 itself. This assault on Section 5 is dangerous because this extremely important provision of the Voting Rights Act is temporary.

Many of the provisions of the Voting Rights Act are permanent, they do not require congressional renewal. This includes Section 201, which imposes a nationwide ban on literacy tests, and Section 2, which prohibits all discrimination in voting and secures victims the right to challenge such discrimination in court.

However, the temporary Section 5-which requires certain jurisdictions, mostly in the South, with a history of voting discrimination to preclear all proposed changes in voting laws or procedures with the U.S. Attorney General or the U.S. District Court in the District of Columbia has been a particularly effective remedy for discrimination in voting.

Under Section 5, within covered jurisdictions, the burden of proving that any proposed change has neither the intent nor effect of weakening the representation of minority voters lies with the state or local government, not the victims of discrimination. State or local officials must prove that a proposed change in voting laws is not discriminatory in purpose or effect Wore the amendments can be implemented. If Section 5 is not extended in 2007. however, jurisdictions will once again be able to pass and implement voting laws with discriminatory effects-laws which minority voters can then challenge only after-the-fact through the slow and expensive process of litigation.

The preclearance provisions have already been weakened. The Bossier Parish, Louisiana case decided by the Supreme Court in January 2000, curtailed the effectiveness of Section 5, by holding that intentionally discriminatory changes in voting were objectionable only if they made minority voters worse off than under a previous practice.

Currently sixteen states, or parts of states, are covered by Section 5: all of Alaska, Alabama, Arizona, Georgia, Louisiana, Mississippi, South Carolina, Texas, and Virginia, and some counties or towns in California, Florida, Michigan, New Hampshire, New York, North Carolina, and South Dakota.

Some of these states or parts of states were brought under the aegis of Section 5 due to a 1975 amendment to the Voting Rights Act passed to protect language minorities who had suffered historical discrimination. Opposition to this amendment, which requires bilingual elections in certain areas, surfaced during the 104th Con-


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gress. A bill was introduced in the House that called for its repeal. The bilingual provisions will also come up for renewal in 2007.

A further danger lies in the fact that any time provisions of the Act are opened up for debate, there is no guarantee that Congress would confine its review to the renewal of those provisions.

A Fight lies Ahead

The 1982 extension of the Voting Rights Act was passed only after vigorous organizing by civil rights forces at every level and by a Democratic Congress during a Republican administration hostile to voting rights expansion.

The 2000 elections will seat the state legislators who will begin the redistricting cycle after the census numbers become available in 2001. Those legislators will determine how congressional seats will be allocated, affecting who gets elected to Congress. As in previous cycles, Section 5 will be one of the most important tools in the hands of minority voters and their allies in the redistricting process.

Challenges to redistricting plans made by states and localities are handled by the federal courts. An activist judiciary played an unprecedented role in determining the shape of state legislatures and congressional delegations during the 1990s. The Supreme Court is frequently divided five-to-four on voting rights cases, with Justice Sandra Day O'Connor often the swing vote. Supreme Court appointments and other nominations to the federal bench made by the administration elected in November 2000 will shape redistricting outcomes for the next decade. The Republican-controlled Congress has obstructed President Clinton's judicial appointments.

The renewal debate will determine whether the Voting Rights Act has teeth in it--whether the influence gained by minority voters will suffer severely or progress.

Ellen Spears is associate director of the Southern Regional Council. You can reach her by e-mail at espears@southerncouncil.org. Preston Quesenberry contributed to this article.