March 1, 2013

The Supreme Court this week heard oral arguments in Alabama v. Holder, the constitutional challenge to Section 5 of the Voting Rights Act heard this week in the Supreme Court. Heritage Foundation legal expert Hans von Spakovsky racaps the arguments, gives us background on the case and explains the law’s shaky legal grounding.

Section 5, von Spakovsky explains, is ”an emergency provision passed by Congress in 1965 that was originally supposed to terminate after five years. It was renewed for a fourth time in 2006 for another 25 years.”

Section 5 requires certain covered jurisdictions (nine states and parts of seven others) to get the preapproval of the federal government before they can make any changes in their voting laws. The main provision of the Voting Rights Act, Section 2, which is a nationwide, permanent ban on racial discrimination in voting, is not at issue in the case.

The difference between Section 2 and Section 5, he explains, is that the latter’s restrictions apply only to jurisdictions which “had voter registration or turnout below 50 percent in the 1964, 1968, and 1972 presidential elections.”

Shelby County and Alabama are still subject to Section 5′s restrictions—based on data from elections held more than 40 years ago. “Under the current rate of registration and turnout of voters, neither Shelby County nor Alabama would be covered under Section 5,” von Spakovsky notes.

In fact, the state that today has the worst disparity between black and white voter registration is Massachusetts, but that state isn’t subject to federal voting supervision under Section 5. The best state on that measure? Mississippi, which is subject to federal controls.

“This is clear evidence that Section 5 no longer reflects actual conditions around the country,” von Spakovsky argues.

Do you think Section 5 of the Voting Rights Act should be overturned? Tell us in the comments below.