Reauthorization of Key Provisions of the Voting Rights Act of 1965Background and Summary

Reauthorization of Key Provisions of the Voting Rights Act of 1965Background and Summary


Question #1: Which provisions of the Voting Rights Act will expire inAugust 2007 unless Congress acts to reauthorize them?Answer: There are three key parts of the VRA that will expire in 2007unless reauthorized:* ? Section 5 of the Act which requires certain jurisdictions toobtain approval (or "preclearance") from the U.S. Department of Justice orthe U.S. District Court in D.C. before they can put into effect any changesto voting practices or procedures. Under the statute, federal approvalrequires proof that the proposed change does "not have the purpose and willnot have the effect of denying or abridging the right to vote on account ofrace or color [or membership in a language minority group]."* ? Section 203 of the Act which requires certain jurisdictions toprovide bilingual language assistance to voters in communities where thereis a concentration of citizens who are limited English proficient. Thisprovision was added to the VRA in 1975.* ? The portions of Sections 6-9 of the Act which authorize thefederal government to send federal election examiners and observers tocertain jurisdictions covered by Section 5 where there is evidence ofattempts to intimidate minority voters at the polls.
Question #2: Where does Section 5 apply?Answer: Section 5 applies to any state or county where a literacy test wasused as of November 1, 1964, and where less than 50% of the voting ageresidents of the jurisdiction were registered to vote, or actually voted, inthe presidential election of 1964, 1968, or 1972. Currently, Section 5affects all or part of 16 states: All of Alabama, Alaska, Arizona, Georgia,Louisiana, Mississippi, South Carolina, and Texas. Most of Virginia, 4counties in California, 5 counties in Florida, 2 townships in Michigan, 10towns in New Hampshire, 3 counties in New York, 40 counties in NorthCarolina, and two counties in South Dakota.
Question #3: What kinds of laws and practices affecting voting must beprecleared?Answer: Because any change in election law or procedure could potentiallydiscriminate against minority voters, all proposed voting changes in coveredjurisdictions must be submitted for pre-clearance. Examples are plans forredistricting, annexation, at-large elections, re-registration requirements,polling place changes, and new rules for candidate qualifying. The SupremeCourt has recognized that seemingly insignificant changes can really besubtle attempts to discriminate.Question #4: How can a jurisdiction be removed from Section 5 coverage?Answer: The Act includes a "bail-out" mechanism, which allows jurisdictionsto be removed from Section 5 coverage if it can show that (1) it has been infull compliance with the preclearance requirements for the past 10 years;(2) no test or device has been used to discriminate on the basis of race,color, or language minority status; and (3) no lawsuits against thejurisdiction, alleging voting discrimination, are pending.
Question #5: Where do the minority language provisions of the Act apply?Answer: The language assistance provisions of the VRA apply to fourlanguage groups: Americans Indians, Asian Americans, Alaskan Natives, andthose of Spanish heritage. A community with one of these language groupswill qualify for bilingual assistance under Section 203 of the Act if (1)more than 5% of the voting-age citizens in a jurisdiction belong to a singlelanguage minority community and have limited English proficiency; OR (2)more than 10,000 voting-age citizens in a jurisdiction belong to a singlelanguage minority community and are LEP; AND (3) the illiteracy rate ofcitizens in the language minority group is higher than the nationalilliteracy rate.Jurisdictions qualify for language assistance under Section 4(f)(4) of theAct if (1) over 5% of the voting-age citizens on November 1, 1972 weremembers of a single language minority group; (2) the U.S. Attorney Generalfinds that election materials were provided in English only on November 1,1972; and (3) the Director of the Census determines that fewer than 50% ofvoting-age citizens were registered to vote on November 1, 1972 or thatfewer than 50% voted in the November 1972 Presidential election.As of 2002, there are 382 local jurisdictions that need to provide languageassistance in Spanish and 119 that must provide assistance to AsianAmericans, Alaska Natives, and/or Native Americans. Because some of thesejurisdictions overlap, a total of 466 local jurisdictions across 31 statesare covered by the language minority provisions of the Act.
Question #6: Have these provisions been previously reauthorized?Answer: Yes. Section 5 was reauthorized with broad bi-partisan support in1970, 1975, and 1982 (for 25 years). Section 203 was enacted in 1975, andreauthorized in 1982 and 1992 (for 15 years).
Question #7: Should Section 5 of the VRA be made permanent?Answer: While making this provision permanent may seem attractive, doing sowould make it vulnerable to a constitutional challenge. Because Section 5is race conscious, it must be able to withstand "strict scrutiny" by thecourts. What this means, in part, is that the provision must be "narrowlytailored" to address the harms it is designed to cure. Many legal expertsquestion whether the Court would find a permanent Section 5 to be "narrowlytailored," such as to survive a constitutional attack.
Question #8: Should Section 5 apply nationwide?Answer: No. A "nationwide" Section 5 would also be vulnerable toconstitutional attack as not "narrowly tailored" or "congruent andproportional" to address the harms it is designed to cure, as required bythe Supreme Court's recent precedents. Section 5 is directed atjurisdictions with a history of discriminating against minority voters. Inaddition, nationwide application of Section 5 would be extremely difficultto administer, given the volume of voting changes that would have to bereviewed. This expansion of coverage would dilute the Department ofJustice's ability to appropriately focus their work on those jurisdictionswhere there is a history of voting discrimination.
Question #9: Why are congressional hearings important for thereauthorization effort?Answer: The Supreme Court has made clear in recent years that it willrequire Congress to establish a detailed record, through hearings andlegislative findings, in order to ensure that provisions such as thesesurvive constitutional scrutiny.