The Implementation of Section 5 of the 1965 Voting Rights Act: A Retrospective on the Role of Courts
| Author | Gayle Binion |
| DOI | http://doi.org/10.1177/106591297903200207 |
| Published date | 01 June 1979 |
| Date | 01 June 1979 |
| Subject Matter | Article |
THE IMPLEMENTATION
OF
SECTION
5
OF
THE
1965
VOTING RIGHTS ACT: A RETROSPECTIVE ON
THE
ROLE
OF
COURTS
GAYLE
BINION
University
of
California,
Snntn
Barbara
HE
Voting Rights Act
of
1965‘
has
proven to be the most significant and
effective federal law to combat racial discrimination in voting.
One
of the
most important provisions of that Act is Section
5*
which is the focus
of
this
retrospective. Specifically, the analysis will focus on the role of the courts
in
the
interpretation and implementation
of
Section
5.
The Voting Rights Act includes
a
number of major provisions affecting those
jurisdictions presumed to have had
a
history of discrimination against
black^.^
The
major
provisions have suspended “tests and de~ices,”~ allowed the assignment
of
federal voter registrars5 and federal observers to monitor elections in covered
‘42 U.S.C. Sect. 1973,asamended 1970, 1975.
‘Section
5
provides: ‘Whenever
a
State or political subdivision with respect to which the
Prohibitions set forth in section 1973b(a) of this title based upon determinations made
under the first sentence of section 1973b(b) of this title are in effect shall enact or seek
to administer any voting qualification or prerequisite to voting, or standard, practice, or
procedure with respect to voting different from that in force or effect
on
November 1,
1964, or whenever
a
State or political subdivision with respect to which the prohibitions
set forth in section 1973b(a) of this title based upon determinations made under the
second sentence of section 1973b(b) of this title are in effect shall enact or
seek
to ad-
minister any voting qualification or prerequisite to voting, or standard. practice, or pro-
cedure with respect to voting different from that in force or effect
on
November
1,
1968,
or whenever
a
State or political subdivision with respect to which the prohibitions set
forth in section 1973b(a) of this title based
upon
determinations made under the third
sentence of section I973b(b) of this title are in effect shall enact or seek
to
administer
any voting qualification or prerequisite to voting, or standard, practice, or procedure
with respect to voting different from that
in
force or effect on November
1,
1972, such
State or subdivision may institute an action in the United States District Court for the
District of Columbia for
a
declaratory judgment that
such
qualification, prerequisite,
standard, practice, or procedure does
not
have the purpose and will not
have
the effect
of denying or abridginq the right to vote
on
account of race or color, or in contravention
of the guarantees set forth in section 1973b(f) (2) of this title, and
unless
and until the
court enters such judgment
no
person
shall be denied the right to vote for failure to
comply with such qualification, prerequisite, standard, practice, or procedure:
Provided,
That such qualification, prerequisite, standard, practice or procedure may be enforced
without such proceeding if the qualification, prerequisite, standard, practice, or pro-
cedure has been submitted by the chief legal officer or other appropriate official of such
State or subdivision to the Attorney General and the Attorney General has not inter-
posed
an
objection within sixty days after such submission, or upon good cause shown,
to facilitate
an
expedited approval within sixty days after such submission, the Attorney
General has affirmatively indicated that such objection will not be made. Neither an
affirmative indication by
the
Attorney General that no objection
will
be made, nor the
Attorney General’s failure to object, nor
a
declaratory judgment entered under this
section shall bar
a
subsequent action to enjoin enforcement of such qualification, pre-
requisite, standard, practice, or procedure.
In
the event the Attorney General affir-
matively indicates that
no
objection will be made within the sixty-day period following
receipt of
a
submission, the Attorney General may reserve the right to reexamine the
submission if additional information comes to his attention during the remainder of the
sixty-day period which would othenvise require objection
in
accordance with this sec-
tion. Any action under this section shall be heard and determined by
a
court of three
judges in accordance with the provisions of section 2284 of Title
28
and any appeal
shall lie to the Supreme Court.” 42 U.S.C. sect. 1973c, as amended,
Pub.L.
No. 94-73,
sects. 204. 206,405,
89
Stat. 402,404.
*
Under Section 4(b) of the Act, 42
U.S.C.
sect. 1973b this presumption is made for juris-
dictions within which fewer than
50
percent of adults were either registered to vote on
November
1,
1964, or voted in the November 1964 elections.
4
42 U.S.C. sect. 1973b. This provision suspending literacy tests now (under 1975 amend-
ments) applies nationally.
42 U.S.C. sect. 1973d.
Section
5
of
the
1965
Voting
Rights
Act
155
jurisdictions.6 Under Section 5
of
the Voting Rights Act Congress has restricted
covered jurisdictions from altering their electoral systems without prior clearance
by the Attorney General or the
U.S.
District Court for the District
of
Columbia.
Provision has also been made to protect the access of Puerto Ricans to the ballot,’
and the 1975 amendments require bilingual
ballots
wherever language minorities
constitute
5
percent of the voting age population? The implementation of the
provisions of the 1965 Voting Rights Act has been associated with
a
very sizable
increase in black voting and black political power. Between 1964 and 1972 the
number of blacks registered to vote in the South increased by more than one mil-
liong and the gap between white and black registration rates decreased from 44 to
11 percent.1° During the same time period black elected officials in the South in-
creased from fewer than 100 to more than
l,OOO.ll
The
capacity of the Voting Rights Act to increase the black vote and conse-
quent political strength is attributable to
a
numbcr of factors. First, unlike earlier
voting rights legislation
-
for example, the Civil Rights Acts of 195712 and 196019
which relied entirely on litigation instituted by the
U.S.
government
-
thc 1965
Act gives the federa1 government extensive administrative powers and remedies not
previously available
as
weapons against discrimination. Second, the Act provides
for automatic suspension of
“tests
and devices”
in
covered jurisdictions without the
burden on the government to prove
them
actually
discriminatory. The ability of
the
US.
government to monitor closely and immediately the enforcement
of
the
Act’s provisions through the use of registrars and inspectors is naturally of critical
significance.
Section
5
of
the Voting Rights Act insures that
the
states
will
be unable to
adopt new forms of racial discrimination in voting to replace those suspended by
the other provisions
of
the Act. It has proven to be of enormous significance in the
implementation
of
the goals
of
the Voting Rights Act. The other provisions of the
laiv were the critical first steps to stop the common methods
of
discrimination. In
contrast, the importance of Section
5
is
on-going. Section
5
places an affirmative
burden
on
covered state and local governments to submit changes in electoral laiv
to the federal government before they may take effect. Any change in the laiv
on
I<
voting qualification
or
prerequisite to voting, or standard, practice
or
procedure
with respect to voting” must be scrutinized to insure that it “does not have the
purpose
and wiII not have the effect of denying
or
abridging the right to vote
on
account of race or
CO~O~.~’~*
An affirmative burden is placed
on
these governments
to prove that
the law
will
not
eflect discrimination;
the Attorney General
does not
have to prove
that
it will
in order to object to the change. Without Section
5
it is
questionable that the Voting Rights Act would have enjoyed the apparent level
of
success it has had. The other provisions of the law refer specifically
to
the acts of
registering and voting but the language
of
Section
5
is broad enough to reach the
electoral system itself
(for
example: apportionment plans, municipal boundary
selections, rules governing candidacies for public office).
Its
broad coverage and
prophylactic
quality
give Section
5
the potential of insuring that the enormous
“42 USE. sect. 1973f.
‘42 U.S.C. sect. 1973b(e).
‘42 U.S.C. sect. 1973aa-la(b).
United States Commission on Civil Rights,
The
Voting
Rights
Act:
Ten
Years
After.
(Herc-
inafter referred
to
as
Ten
Years
Affer)
1975,
p.
41.
“Ibid. at 43.
Ibid. at 49.
“42 U.S.C. sect. 1971.
”
42 U.S.C. sect. 1971, 1974.
“See footnote #2 above. The state
or
local government has the option of obtaining
a
decla-
ratory
judgment
from the U.S. District Court for the District of Columbia or the ap
proval of the Attorney General.
-
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