The Strange, Ironic Career of Section 5 of the Voting Rights Act, 1965-2007

Abstract

Strange events and ironic conjunctions pervade narrative of renewal of provisions of Voting Rights Act 2005-2006. Never has radical, still-controversial Act been treated in such hushed, reverential tones, and never has its discussion been so blatantly manipulated for immediate partisan advantage. Never have there been so many proposals for comprehensive changes when temporary parts of Act have come up for renewal, and never has there been less serious debate about Act in committees and on floor of Congress. Never has support for Act in Congress and country seemed so universal, and never has its constitutional future before Supreme Court seemed so tenuous. This Article shows that strange, ironic nature of recent consideration of Voting Rights Act is not unusual, but rather that it is typical of history of most controversial provision of Act, Section 5, which requires that all changes in election laws in covered jurisdictions, chiefly in Deep South, be submitted to Justice Department or District of Columbia District Court for preclearance before they are allowed to go into effect. In its early years, Section 5 was largely ignored by state and local governments, and Justice Department was too disorganized to police it, anyway. After receiving a judicial blessing from Supreme Court, Section 5 was for first time vigorously enforced by Nixon Administration, which had opposed its effective continuation, and Carter Administration, first administration headed by a president from Deep South since before Civil War. Two Supreme Court decisions in 1976 and 1980 that threatened to sap Act's vigor instead stimulated civil rights activists to mount a campaign for amendments that overwhelmed Reagan Administration and led to largest increase in minority elected officials since first years of post-Civil War Reconstruction. But no sooner had promise of Act finally been fulfilled than Supreme Court-through strained interpretations of Act's intentions and, even more ironically, through use of Fourteenth and Fifteenth Amendments to hamper, instead of to protect, minority political rights-stripped Act of much of its power. By 2006, Act's iconic status insured its persistence, but fears of its staunchest proponents and barely hidden antipathy of many members of dominant political party prevented amendments that might have increased its chances to pass muster with Roberts Court. Eight days after President George W. Bush signed law, Gregory Coleman, a Texas lawyer with strong ties to Republican Party, filed a serious challenge to constitutionality of Section 5. The strange career continues. Analyzing complete history of Section 5 and emphasizing story's ironic elements and shifting course yield lessons that may be useful in continuing struggle to protect political rights of minorities. I. The Tangled History of Voting Rights Act A. Latest Twists On July 20, 2006, only one day after Senate Judiciary Committee reported a bill reauthorizing key provisions of what conservative columnist George Will called the 20th century's noblest and most transformative law,1 U.S. Senate briefly debated and unanimously passed Voting Rights Act Reauthorization and Amendments Act (VRARA).2 The apparent impetus for unusual haste3 by the world's greatest deliberative body,4 was fact that President George W. Bush wished to cite imminent passage of Act as evidence of racial progress under his Administration in a speech, arranged at last minute,5 marking his first appearance as president before a convention of National Association for Advancement of Colored People (NAACP).6 But curtailment of even appearance of deliberation7 in order to serve most immediate of political purposes was not only odd aspect of 2005-2006 renewal saga. …