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Strong Medicine: The Continuing Struggle for the Protection of Voting Rights

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This week the United States Supreme Court will hear oral arguments in Shelby County v. Holder, a case challenging the constitutionality of Section 5 the Voting Rights Act of 1965 brought by Shelby County, Alabama. Section 5 prohibits covered jurisdictions -- states, cities and counties with a particularly strong history of electoral discrimination against minority voters -- from implementing new voting standards, practices or procedures unless the proposed change has first been approved -- " pre-cleared" -- by the Department of Justice or the United States District Court for the District of Columbia. Shelby Country's principal argument is that Section 5 has done its job. The right to vote is now secure, and Section 5 is no longer necessary to preserve it. Undeniably, the Voting Rights Act has been a remarkably effective tool: in the nearly five decades since the Act's passage minority voters have undoubtedly garnered increasing political power. Yet, while considerable progress has been made, the Voting Rights Act's goal of making real the promise of the Fifteenth Amendment has not been fully realized. Barriers to equal political participation persist; minority citizens are still denied access to the ballot as they struggle through increasingly ingenious discriminatory roadblocks.

Facing the impending expiration of Section 5 of the Voting Rights Act, Congress in 2006 set about determining whether Section 5 was still necessary to deter unconstitutional voting discrimination against racial and ethnic minorities. During the hearings, Congress heard testimony from scholars, civil rights attorneys, private citizens, members of Congress and federal and state officials. And, after careful review of a record in excess of 15,000 pages, Congress determined that voting discrimination was not a relic, but continued to be pervasive in covered jurisdictions. By a vote of 390 to 33 in the House and 98 to 0 in the Senate, Congress concluded that more time was needed to combat disregard for the rights protected by the 15th Amendment.

The power of Section 5 is that rather than relying on individual plaintiffs to challenge laws after the fact -- an expensive and time consuming process -- it gives covered jurisdictions the burden of proving that any proposed changes will not harm the voting rights of minorities before they can be implemented. This is a powerful prophylactic tool -- the threat of rejection by Department of Justice or DC District Court often jurisdictions to limit the discriminatory impact of proposed changes on their own accord.

The growing numbers of people of color in elective office, up to and including our president, is often submitted as exhibit one against the continued need for the powerful tool of Section 5. And without a doubt, the Voting Rights Act played a direct and pivotal role in the election and reelection of our country's first African American president. The election of Barack Obama in 2008, and his recent reelection in 2012, showcased both the progress the VRA helped to usher in, as well as the continuing animosity towards minority participation in our electoral process. Indeed, leading up to the 2012 election, several Section 5 covered jurisdictions attempted to implement new policies and practices that had discriminatory effects on minority voters, impeding their ability to register, vote, and elect representatives of their choice. The legislative responses in many covered jurisdictions to the 2008 election only lend further support to Congress' conclusion that Section 5 remains vital.

That the Voting Rights Act has begun to cure the malaise of voting discrimination does not render its most powerful medicine superfluous. The acknowledged success of the VRA is not proof that Section 5's usefulness has expired. In fact, it is evidence that Section 5's strong medicine is working. There is no more important right in a democracy than the ballot. And we as a country must be vigilant in preserving that right. The risks to minority voters remain real. As Congressman John Lewis has explained: "The danger of accepting the argument that we have made so much progress that we no longer need the very tool that made all that progress possible is that we will forget one of the most important lessons history has to teach us, namely: that revolutions and advances in popular rights and democratic rights can be reversed; that history can move backward . . . ." Amicus Brief on Behalf of Congressman John Lewis. We should all look forward to the day that Section 5 of the Voting Rights Act is no longer necessary. But we should not kid ourselves into thinking that that day has arrived.