Supreme Court weighs stripping key provision from Voting Rights Act

March 4, 2013

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Beverly Clark
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beverly.clark@emory.edu

The future of a key provision of the Voting Rights Act of 1965 is now in the hands of the United States Supreme Court. That provision, Section 5, requires covered states and localities, largely in the South, to obtain "preclearance" from the federal government before making any changes in its voting practices ranging from redistricting to polling place locations.

Emory Law School professor and election law expert Michael Kang says it appears the Supreme Court is going to get rid of that piece of the act though he believes it is one that still plays an important role.

"Section 5 is less necessary today than it used to be on the state level because there are more political and legal checks there between Republicans and Democrats that protect minority political participation," he says. "It’s on the local level where problems can fly under the radar and where Section 5 still makes the biggest difference."

Kang says that while the country has experienced a great deal of racial progress since the Civil Rights movement, people will disagree on just how much. But one thing is certain – it is less democratic to let the Supreme Court decide how far the country has come than Congress, he says.

"The Court is not a better institution than Congress to assess Section 5’s continuing value, and Congress renewed Section 5 as is in 2006 under Republican control and a Republican president," Kang explains.

Kang says if Section 5 is shuttered, it will be left to Congress to draft a revised version in order to continue to prohibit localities from limiting minority participation in the voting process, but there has been no clear indication if Congress is motivated to do so.