Policy Update

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

Question #1: Which provisions of the Voting Rights Act will expire in August 2007 unless Congress acts to reauthorize them?

Answer: There are three key parts of the VRA that will expire in 2007 unless reauthorized:
• Section 5 of the Act which requires certain jurisdictions to obtain approval (or “preclearance”) from the U.S. Department of Justice or the U.S. District Court in D.C. before they can put into effect any changes to voting practices or procedures. Under the statute, federal approval requires proof that the proposed change does “not have the purpose and will not have the effect of denying or abridging the right to vote on account of race or color [or membership in a language minority group].”
• Section 203 of the Act which requires certain jurisdictions to provide bilingual language assistance to voters in communities where there is a concentration of citizens who are limited English proficient. This provision was added to the VRA in 1975.
• The portions of Sections 6-9 of the Act which authorize the federal government to send federal election examiners and observers to certain jurisdictions covered by Section 5 where there is evidence of attempts 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 was used as of November 1, 1964, and where less than 50% of the voting age residents of the jurisdiction were registered to vote, or actually voted, in the presidential election of 1964, 1968, or 1972. Currently, Section 5 affects all or part of 16 states: All of Alabama, Alaska, Arizona, Georgia, Louisiana, Mississippi, South Carolina, and Texas. Most of Virginia, 4 counties in California, 5 counties in Florida, 2 townships in Michigan, 10 towns in New Hampshire, 3 counties in New York, 40 counties in North Carolina, and three counties in South Dakota.

Question #3: What kinds of laws and practices affecting voting must be precleared?

Answer: Because any change in election law or procedure could potentially discriminate against minority voters, all proposed voting changes in covered jurisdictions must be submitted for pre-clearance. Examples are plans for redistricting, annexation, at-large elections, re-registration requirements, polling place changes, and new rules for candidate qualifying. The Supreme Court has recognized that seemingly insignificant changes can really be subtle 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 jurisdictions to be removed from Section 5 coverage if it can show that (1) it has been in full 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 the jurisdiction, 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 four language groups:
Americans Indians, Asian Americans, Alaskan Natives, and those of Spanish heritage. A community with one of these language groups will 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 single language minority community and have limited English proficiency; OR (2) more than 10,000 voting-age citizens in a jurisdiction belong to a single language minority community and are LEP; AND (3) the illiteracy rate of citizens in the language minority group is higher than the national illiteracy rate.
Jurisdictions qualify for language assistance under Section 4(0(4) of the Act if (1) over 5% of the voting-age citizens on November 1, 1972 were members of a single language minority group; (2) the U.S. Attorney General finds that election materials were provided in English only on November 1, 1972; and (3) the Director of the Census determines that fewer than 50% of voting-age citizens were registered to vote on November 1, 1972 or that fewer than 50% voted in the November 1972 Presidential election.
As of 2002, there are 382 local jurisdictions that need to provide language assistance in
Spanish and 119 that must provide assistance to Asian Americans, Alaska Natives, and/or
Native Americans. Because some of these jurisdictions overlap, a total of 466 local
jurisdictions across 31 states are 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 in 1970, 1975, and 1982 (for 25 years). Section 203 was enacted in 1975, and reauthorized 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 so would make it vulnerable to a constitutional challenge. Because Section 5 is race conscious, it must be able to withstand “strict scrutiny” by the courts. What this means, in part, is that the provision must be “narrowly tailored” to address the harms it is designed to cure. Many legal experts question whether the Court would find a permanent Section 5 to be “narrowly tailored,” such as to survive a constitutional attack.

Question #8: Should Section 5 apply nationwide?

Answer: No. A “nationwide” Section 5 would also be vulnerable to constitutional attack as not “narrowly tailored” or “congruent and proportional” to address the harms it is designed to cure, as required by the Supreme Court’s recent precedents. Section 5 is directed at jurisdictions with a history of discriminating against minority voters. In addition, nationwide application of Section 5 would be extremely difficult to administer, given the volume of voting changes that would have to be reviewed. This expansion of coverage would dilute the Department of Justice’s ability to appropriately focus their work on those jurisdictions where there is a history of voting discrimination.

Question #9: Why are congressional hearings important for the reauthorization effort?

Answer: The Supreme Court has made clear in recent years that it will require Congress to establish a detailed record, through hearings and legislative findings, in order to ensure that provisions such as these survive constitutional scrutiny.