There are two schools of thought regarding Section 5 of the Voting Rights Act of 1965.
The first is that the legacy of discrimination makes continuing efforts like Section 5 necessary, while the second says that Section 5 has outlived its necessity.
The issue is complicated, said Professor Reginald L. Robinson of the Washburn University School of Law in Topeka, KS.
"I don't know what the answer is. I think it's a great question to explore," he said.
Robinson made these remarks during a trip to the University of South Dakota School of Law, where he spoke as part of the annual DiscoverLaw Thurgood Marshall Program on Wednesday, March 14.
There are two key provisions of the Voting Rights Act – Section 2 and Section 5.
"Section 2 generally just says, 'Don't discriminate.' Section 5 is a remarkable piece of legislation," Robinson said.
Section 5 makes it impossible for certain states – or counties within certain states, such as Shannon and Todd counties in South Dakota – to change any procedure in regard to voting without the OK of a three-judge panel of the United States District Court in Washington, DC.
"It is intrusive," Robinson said. "It asserts the federal government power into decision-making that historically has been seen as absolutely the providence of state and local governments."
Prior to the enactment of the Voting Rights Act of 1965, some states – particularly in the South – would change their laws to bar African-Americans and other minorities from voting, or even registering to vote.
For example, although the 1961 census of Dallas County, AL, found that its population was 57 percent African-American, only 130 of those potential voters were registered, Robinson said.
"(Congress) wanted to shift the balance in these jurisdictions that had this negative history," he said. "Instead of placing minority voters in the position of waiting until some new thing was put in place … and then prove after the fact that this thing violated voting rights in any permissible way, Section 5 shifts that balance, puts the burden on the jurisdiction to show that their proposed voting change is non-discriminatory, and show that before the thing goes into effect."
Section 5 initially was meant to last only five years, but it has received multiple extensions through Congress, the most recent of which took place in 2006.
It is set to expire in 2031, although that may change, Robinson said.
"A shot is fired across the bow in 2009, and the shot that is fired across the bow comes from the U.S. Supreme court in a case called Northwest Austin Municipal Utility District No. 1 v. Holder," Robinson said.
The case does involves not discrimination, but a Texas water district that wanted to move a voting location from a private home to a public school. Under Section 5, they were required to seek preclearance from the Justice Department.
Robinson said that the Supreme Court "decided not to tackle the big question," but did voice some concerns.
"The nutshell that captures the essence of the court's concern is, things have changed," he said. "We have had substantial increases in minority registration and voting, even in these covered jurisdictions. There's been a sea change with regard to the election of minority candidates, even in these states there has been over the years a decrease in the number of times the justice department objects to a proposed voting change."
Positive changes notwithstanding, Robinson said disparity continues to exist with regard to voting, which makes the issue more complicated.
"In some ways, the challenge for the court is going to be, 'Do we make our own independent judgment of whether this evidence justifies continued life for Section 5, or do we defer to Congress's judgment?'" he said.
"In these covered jurisdictions, the presence of Section 5 is a really meaningful thing. It has wide present-day implications for anybody who cares about voter participation, that folks have the opportunity to pursue with regard to voting," he said.