On Wednesday, the Senate Judiciary Committee heard testimony that highlighted the historical, moral, and political importance of Section 5 of the Voting Rights Act.
The hearing, “From Selma to Shelby County: Working Together to Restore the Protections of the Voting Rights Act,” was in response to the Supreme Court’s decision in Shelby County v. Holder to strike down Section 4, which determined which states are subject to the preclearance requirement in Section 5. Without Section 4’s formula, no states are subject to preclearance and the federal government will no longer have the power to prevent racially discriminatory election procedures from going into effect.
Chairman Leahy began the hearing by setting the scene at Edmund Pettus Bridge in Selma, Alabama, on March 7, 1965, where state troopers attacked a group of peaceful civil rights protesters in the event known as “Bloody Sunday.” The Chairman called that brutal day the “catalyst” for the passage of the Voting Rights Act of 1965.
The first panel of witnesses was comprised of Reps. John Lewis and James Sensenbrenner. As someone that participated in the Selma march, Rep. John Lewis said the Shelby decision “broke my heart.” Lewis recalled in 1964, Lowndes County Alabama had an 80% African-American population and not one of them was registered to vote. That same year, three of his friends worked to register African-American voters in Selma: they were arrested, tortured and killed for their efforts. It was conditions like these that encouraged a young Lewis to march on Bloody Sunday.
“I try to be a mechanic that will put together legislation that will work,” said Rep. James Sensenbrenner recalling his time as Chairman of the House Judiciary Committee in 2006 when the Voting Rights Act was last reauthorized. During his chairmanship, Sensenbrenner helped to produce over twelve thousand pages of testimony over countless hearings, documenting an exhaustive consideration for reauthorization. Sensenbrenner highlighted the committee’s bipartisan conclusion that “while we have made dramatic progress in ensuring no American is denied his or her right to vote based upon the color of his or her skin, the work remains incomplete.” The former Chairman lamented the Supreme Court’s decision to circumvent the will of a bipartisan Congress and ignore the thorough analysis of his 2006 House Judiciary Committee.
The second panel of witnesses was comprised of Jones Day Partner Michael Carvin, Associate Professor at Loyola Law School Justin Levitt, and Aventura, Fla. Commissioner Luz Urbáez Weinberg. Michael Carvin, who argued against preclearance in Mi Familia Vota v. Detzner, testified that there was no need for Section 5 because litigation can still be brought under Section 2. Mr. Carvin added that Section 2 litigation is not too slow because groups are welcome to seek preliminary injunctions before a discriminatory law is in effect and frequently do so. He also criticized pre-clearance for creating “majority minority districts” (i.e. districts in which a majority of the population are members of a racial minority), which he claims has been abused by both parties for political gain.
Prof. Levitt rebuffed Mr. Carvin’s arguments. According to him, existing tools like Section 2 are inadequate to combat discrimination in election law because lawsuits take years; meanwhile, the official or officials who made the discriminatory changes benefit from their illegal tactic and gain the advantages of incumbency. Moreover, Section 2 litigation is severely under-lawyered, cost prohibitive, and places a financial burden on jurisdictions with poor, rural, dispossessed, or racial minorities. The result, according to Prof. Levitt, is that many Section 2 cases are never brought before a court. Commissioner Luz Urbáez Weinberg agreed with Professor Levitt’s conclusion, adding that without Section 5, it is “hunting season for discriminatory voting practices.”
When asked to discuss what a new Voting Rights Act could look like, Professor Levitt recommended new ways of getting information about where discriminatory problem areas exist, and making Section 2 litigation less burdensome. Commissioner Weinberg voiced concern that discriminatory practices have become a lot more sophisticated and underhanded, which requires new and creative approaches. Mr. Carvin warned about the Justice Department’s partisan track record with the preclearance process.
In addition to the live testimony, many advocacy groups submitted written testimony.
Overall, the hearing served as an important reminder of the historical context of the Voting Rights Act, as well as the overwhelming bipartisan support it has enjoyed for decades. Although some commentators are not optimistic, Project Vote hopes that our representatives will once again reach across the aisle to ensure that no American is denied the right to vote.
Kwame Akosah is a second-year law student at Fordham University School of Law. He joins Project Vote as legal intern for summer 2013.
Photo by Philocrites via Creative Commons license.