Kilmichael, a small town in northern Mississippi, is known to blues aficionados as the place where blues artist B.B. King first began his love affair with the guitar. To voting rights advocates, it's a place that helps spotlight the ongoing need for Section 5 of the Voting Rights Act (VRA), now facing a challenge to its constitutionality in a lawsuit before the Supreme Court.
The Court will hear oral arguments on the merits of Shelby County v. Holder on Wednesday. A decision will most likely be rendered in June before the court's summer recess.
"When the 2000 Census revealed that the town had become majority black for the first time, the town's all-white board of aldermen responded by simply trying to cancel all elections in order to prevent African Americans from being elected to office," explained Dale Ho, assistant counsel of the political participation group, NAACP LDF.
Mississippi was, and still is, covered by Section 5, which requires certain states and jurisdictions to submit proposed changes to voting procedures to the U.S. Department of Justice or the Federal District Court in the District of Columbia. The process is called preclearance and determines whether these changes violate constitutional rights or prevent minority voters from participating in a fair election.
Under Section 5, DOJ mandated a special election in Kilmichael, resulting in the town's first African-American elected officials.
Ho cited the Kilmichael episode during a New America Media teleconference briefing on the lawsuit and the negative impact on minority voters, if the Supreme Court rules in its favor. Convened by the Brennan Center for Justice at NYU School of Law, among the country's leading institutional authorities on voting rights issues, the briefing included Myrna Pérez, senior counsel, Brennan Center for Justice; Glenn Magpantay, Democracy Program director, Asian American Legal Defense and Education Fund; and Nina Perales, vice president of Litigation, Mexican American Legal Defense and Educational Fund.
The VRA was passed by Congress in 1965 and signed by President Lyndon Johnson as a more robust protection for minority voters, particularly for African Americans in the South, where they have been targets of voter suppression efforts since the end of the Civil War.
Provisions of the VRA, including Section 5, have been extended several times since its initial passage, most recently in 2006 when Congress voted to reauthorize it for another 25 years. The reauthorization vote was 98 to 0 in the Senate; 393 to 30 in House. It was signed into law by President George Bush as it had been under a previous Republican president, Ronald Reagan, in 1982.
In its lawsuit, Shelby County, Alabama argues that Congress overstepped its constitutional bounds by voting to extend VRA and Section 5 for another 25 years.
"Even if the Court gives weight to all of the evidence in the legislative record," the lawsuit contents, "it at most shows scattered and limited interference with Fifteenth Amendment rights in some covered jurisdictions" – not sufficient for the Court to "sustain a remedy so intrusive as preclearance."
States covered by Section 5 have long chafed at the preclearance process because they consider it a violation of their Tenth Amendment sovereignty rights. If they can show that racial discrimination and Fifteenth Amendment violations are "scattered and limited," then preclearance should be voided, as Shelby agues, and their sovereignty restored.
"Racial discrimination in voting is sadly a continuing fact of American life," countered Ho. Citing a DOJ study on Section 2 cases, Ho said, "81 percent of these successful voting rights lawsuits arise from the covered jurisdictions, which, in turn, are only 25 percent of the country...
"On a per capita basis, successful voting rights lawsuits are 12 times more likely to occur in the covered jurisdictions. These are precisely the places that need continuing federal remedies to prevent voting discrimination."
Magpantay of AALEDF pointed out that with their high numbers in the states covered by Section 5 Asian Americans have a big stake in the case's outcome. Through Section 5's enforcement capacity, for example, voting rights advocates have been able to ensure that states and counties meet bi-lingual ballot requirements under other VRA provisions.
Redistricting continues to be one of the most contentious issues that impact minority voters. Magpantay cited the intervention by the Department of Justice in Texas where Section 5 was used to prevent the formation of a district that would have blocked Vietnamese voters from electing a candidate of their choice to the legislature.
"For Latinos," said Nina Perales, "Texas is the poster child for the continuing vitality of Section 5."
The provision has been used to block over 200 discriminatory voting changes in Texas since 1975. Arizona runs a close second. Since 1975 "one or more of Arizona's statewide redistricting plans has been blocked by Section 5 because of discrimination" against Latino voters, Pareles noted.
The year 1975 was a watershed year for Latinos because the VRA was extended by Congress to cover states in the Southwest in an attempt to help remedy discriminatory practices.
"Jim Crow systems in Texas and Arizona segregated Latinos in schools, jobs, and public accommodations well into the Twentieth Century," Perales recounted. "Latinos were routinely excluded from civic life, including jury duty, voter registration, and voting at the poll." After the 2010 Census, she said, a Texas redistricting plan was found to discriminate not only against Mexican Americans, but African Americans and Asians Americans as well.
Ho noted another unique role Section 5 plays – it "stops discriminatory voting laws before they go into effect." Too often, he explained, when a candidate wins office by using racially discriminatory tactics or through a system skewed in his or her favor, he or she gains the power and advantage of incumbency. Small localities like Kilmichael rarely have the financial resources to embark on lengthy civil litigation, which even if successful, may take one or even two election cycles.
Speakers on the teleconference call generally refrained from speculating about the possible outcome of the Supreme Court's ruling, but said an abundance of evidence, including what occurred during the 2012 election cycle, demonstrate the rationale for keeping Section 5 in place.