The Importance of Section 5 of the Voting Rights Act
By Laughlin McDonald 

Excerpts from the testimony of Laughlin McDonald (Director, ACLU Voting Rights Project) before the House Committee on the Judiciary,

Subcommittee on the Constitution, November 9, 2005 

Section 5 of the Voting Rights Act requires certain jurisdictions with

a history of racial discrimination in voting to obtain preclearance

from the U.S. Department of Justice or the U.S. District Court in D.C.

before they can implement any changes to their voting practices or

procedures. To obtain preclearance, jurisdictions must prove that the proposed voting change is not retrogressive, i.e. does not have a discriminatory purpose and will not have the effect of denying or abridging a person’s right to vote because of their race or color or membership in a language minority group.

      Prior to the decision in Georgia v. Ashcroft, 539 U.S. 461 (2003), the Supreme Court in Beer v. United States, 425 U.S. 130 (1976) held that the failure to preserve the ability of minority voters to elect candidates of their choice is retrogressive and that such voting changes are objectionable under Section 5 of the Voting Rights Act. This standard was also ratified when Congress extended Section 5 in 1982.

      The Georgia v. Ashcroft decision, however, represents a significant departure from the retrogression standards applied in Beer and other voting rights cases. The Court created a new standard for retrogression and allows states to relegate minority voters into second-class voters, who can “influence” the election of white candidates, but who cannot amass the political power necessary to elect a candidate of their choice who they believe will represent their interests.

The Decision of the District Court

Georgia v. Ashcroft was an action instituted by the State of Georgia in the District Court for the District of Columbia seeking preclearance under Section 5 of its congressional, senate, and house redistricting plans based on the 2000 census. The district court precleared the congressional and house plans, but objected to three of the districts in the senate plan because “the State has failed to demonstrate by a preponderance of the evidence that the reapportionment plan . . . will not have a retrogressive effect.” Georgia v. Ashcroft, 195 F. Supp. 2d 25, 94 (D.D.C. 2002). Although blacks were a majority of the voting age population (VAP) in all three senate districts, the district court concluded that the state failed to carry its burden of proof that the reductions in BVAP from the benchmark plan would not “decrease minority voters’ opportunities to elect candidates of choice.” Id. at 89. The standard for retrogression applied by the district court was the one articulated by the Court in Beer v. United States, 425 U.S. 130, 141 (1976). In Beer, quoting the legislative history of the 1975 extension of the Voting Rights Act, the Court held that the standard under Section 5 is “whether the ability of minority groups to participate in the political process and to elect their choices to office is augmented, diminished, or not affected by the change affecting voting.” 425 U.S. at 141(emphasis in original). The state enacted a remedial senate plan, which was precleared by the district court, and appealed the decision on the merits to the Supreme Court.

The State's Brief in the Supreme Court

The brief filed by the state of Georgia in Georgia v. Ashcroft provides a dramatic, present day example of the continued willingness of one of the states covered by Section 5 to manipulate the laws to diminish the protections afforded racial minorities. The state’s brief resorted to the kind of rhetoric that it had used countless times in the past to denounce the Voting Rights Act.

      It argued that Section 5 “is an extraordinary transgression of the normal prerogatives of the states.” State legislatures were “stripped of their authority to change electoral laws in any regard until they first obtain federal sanction.” The statute was “extraordinarily harsh,” and “intrudes upon basic principles of federalism.” As construed by the three-judge court, the state said, the statute was “unconstitutional.” Brief of Appellant State of Georgia, pp. 28, 31, 40-1. But the arguments the state advanced on the merits were far more hostile to minority voting rights even than its anti-Voting Rights Act rhetoric.

      One of the state’s principle arguments was that the retrogression standard of Section 5 should be abolished in favor of a coin toss, or an “equal opportunity” to elect, standard based on Section 2 of the Voting Rights, 42 U.S.C. § 1973, which it defined as “a 50-50 chance of electing a candidate of choice.” Georgia v. Ashcroft, 195 F.Supp.2d at 66. The state also made the extraordinary argument, and in contrast to well established law, that minorities, the very group for whose protection Section 5 was enacted, should never be allowed to participate in the preclearance process.

      Had the state’s proposed coin toss standard been adopted, it would have had a severe negative impact upon minority voting strength. A 50-50 chance to win is also a 50-50 chance to lose. If the state were allowed under Section 5 to adopt a plan providing minority voters with only a 50-50 chance of electing candidates of their choice in the existing majority black districts, the number of blacks elected to the Georgia legislature would by definition be cut essentially in half, or reduced even further.

The Decision of the Supreme Court

The majority opinion of the Supreme Court in Georgia v. Ashcroft is the proverbial mixed bag. As an initial matter, the Court rejected two of the anti-Voting Rights Act arguments made by the state, i.e., that private parties should never be allowed to intervene in preclearance actions, and that the retrogression standard of Section 5 should be replaced with the “equal opportunity” standard of Section 2. According to the majority: “Private parties may intervene in Section 5 actions assuming they meet the requirements of Rule 24, and the District Court did not abuse its discretion in granting the motion to intervene in this case.” 539 U.S. at 477. The Court further held that: “Instead of showing that the Senate plan is nondilutive under Section 2, Georgia must prove that its plan is nonretrogressive under Section 5.” Id. at 479.

      The Court, however, vacated the decision of the three-judge court denying preclearance to the three senate districts because, in its view, the district court “did not engage in the correct retrogression analysis because it focused too heavily on the ability of the minority group to elect a candidate of its choice in the majority-minority districts.” 539 U.S. at 490.   The Court held that while this factor “is an important one in the Section 5 retrogression inquiry,” and “remains an integral feature in any Section 5 analysis,” it “cannot be dispositive or exclusive.” Id. at 480, 484, 486. The Court held that other factors which in its view the three-judge court should have considered included: “whether a new plan adds or subtracts ‘influence districts’ - where minority voters may not be able to elect a candidate of choice but can play a substantial, if not decisive, role in the electoral process;” and whether a plan achieves “greater overall representation of a minority group by increasing the number of representatives sympathetic to the interest of minority voters.” Id. At 482-83.

      The Court held “that Georgia likely met its burden of showing

nonretrogression,” but concluded that: “We leave it for the District

Court to determine whether Georgia has indeed met its burden of proof.” 539 U.S. at 487, 489.  But before the district court could reconsider and decide the case on remand, a local three-judge court invalidated the senate plan on one person, one vote grounds, Larios v. Cox, 300 F.Supp.2d 1320 (N.D.Ga. 2004), aff'd 124 S. Ct. 2806 (2004), and implemented a court ordered plan.  Larios v. Cox, 314 F.Supp.2d 1357 (N.D.Ga. 2004). As a consequence, the preclearance of the three senate districts at issue in Georgia v. Ashcroft was rendered moot.

Problems with the Majority Decision

The opinion of the majority introduced new, vague and difficult to apply, and contradictory standards. According to the Court, the ability to elect is “important” and “integral,” but a court must now also consider the ability to "influence" and elect “sympathetic” representatives. The Court took a standard that focused on the ability to elect candidates of choice, that was understood and applied, and turned it into something subjective, abstract, and impressionistic. The danger of the Court’s opinion is that it may allow states to turn black and other minority voters into second class voters, who can “influence” the election of white candidates but who cannot elect their preferred candidates, including candidates of their own race.  That is a result Section 5 was enacted to avoid. As the Court held in Beer, “the purpose of Section 5 has always been to insure that no voting-procedure changes would be made that would lead to a retrogression in the position of racial minorities with respect to their effective exercise of the electoral franchise.” 425 U.S. at 141.

      The inability of blacks to exercise the franchise effectively in so-called influence districts is apparent from the lack of electoral success of black candidates in majority white districts. As of 2002, of the ten blacks elected to the state senate in Georgia, all were elected from majority black districts (54% to 66% black population). Of the 37 blacks elected to the state house, 34 were elected from majority black districts. Of the three who were elected from majority white districts, two were incumbents. The third was elected from a three-seat district. 2003 House of Representatives, Lost & Found Directory.

Clarifying Georgia v. Ashcroft

Because the decision in Georgia v. Ashcroft runs counter to the intent of the Voting Rights Act, it is important that members of Congress utilize the reauthorization process as an opportunity to restore the protection of Section 5 and clarify the retrogression standards as articulated in Georgia v. Ashcroft. Any efforts to address this issue should provide that any diminution of the ability of a minority group to elect a candidate of its choice would constitute retrogression under Section 5.