We Still Need Section 5!


On February 27, the Supreme Court will hear a case challenging Section 5, a key part of the Voting Rights Act. Here’s a rundown of what Section 5 does, why it’s being challenged, how it continues to play a vital role in our democracy, and why it must be upheld.

What is Section 5? 

  • Section 5 is the cornerstone of the Voting Rights Act of 1965. The provision requires all or parts of 16 states with a history of discriminatory voting practices to get federal preclearance before making any changes in voting procedure. These states are: Alabama, Alaska, Arizona, California, Florida, Georgia, Louisiana, Michigan, Mississippi, New Hampshire, New York, North Carolina, South Carolina, South Dakota, Texas, Virginia
  • Before new voting laws can take effect, Section 5 puts the burden of proof on state and local governments to first show that they do not have a discriminatory impact. This precaution effectively blocks discrimination before it occurs.
  • The current challenge, Shelby County, Alabama v. Holder, involves a claim that Section 5 is unconstitutional because certain jurisdictions are targeted while others are not. The opposition argues that the provision should be dismantled because, by prohibiting only some states from passing unfair voting laws, it discriminates against those states.
  • Congress has revisited the Section 5 preclearance provision of the Voting Rights Act, and reauthorized it into law, in 1970, 1975, 1982 and 2006. The Supreme Court has also repeatedly upheld its reauthorization, most recently in 2009.

Why Should You Care?

  • Section 5 made a difference in 2012. Of the nine states fully covered by Section 5, six passed new voting restrictions during the last election cycle. Last year, the provision blocked restrictive photo ID laws in Texas and South Carolina, and it was used to reject a Texas redistricting plan intentionally designed to undercut Latino voting power. As the U.S. Department of Justice reviews Mississippi’s photo ID law, that measure is on hold.
  • Striking the provision down will only make it easier for partisan legislatures to manipulate election laws for political gain. Officials in several covered states, including Georgia, Florida and Texas, are already planning to continue pushing photo ID laws or other measures to curtail voting.
  • Section 5 holds states accountable, and gives them an incentive to do a better job of keeping elections free, fair and accessible. When jurisdictions show that they have had a clean voting rights record for 10 years (and many have successfully done so), they can be “bailed out” from federal preclearance.
  • At a time when voting rights are under assault, the answer is doing more to federal oversight of voting policies – not scrapping the most effective civil rights legislation ever enacted.  



The Bottom Line

The Voting Rights Act was passed to ensure that all Americans have an equal right to vote and participate in our democracy. We cannot turn the clock back to the days when unchecked discrimination kept some Americans from the ballot box. Section 5 is our nation’s promise that we never will.