by Alberto R. Gonzales
August 7, 2013
The 15th Amendment to our Constitution provides that the “right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude. The Congress shall have power to enforce this article by appropriate legislation.” Pursuant to the 15th Amendment, in 1965 Congress passed the Voting Rights Act (VRA) largely in response to the continued discrimination within southern states against African Americans.
The VRA is a comprehensive collection of laws used to combat civil right violations in voting. Section 3 of the VRA, referred to as the bail-in mechanism or pocket trigger, authorizes federal courts to require states and political subdivisions that have violated the 15th Amendment to get pre-clearance from federal authorities before making changes in law affecting voting rights. Section 4 of the VRA includes a formula to determine which jurisdictions are the worst offenders, thus triggering the application of the Section 5 VRA provision. Section 5 requires those covered jurisdictions under Section 4 to get permission in advance (much like pre-clearance under Section 3) before making a change in law affecting the voting rights of minorities.
Earlier this year in Shelby County v. Holder, the U.S. Supreme Court struck down the Section 4 provision of the VRA. The Court’s decision that the Section 4 formula is outdated, in essence, nullified the pre-clearance requirements in Section 5, taking away one of the government’s most potent weapons to address civil rights violations. Congress could enact legislation to address the Court’s concerns. However, given the current political stalemate in Washington, most believe there is little chance Congress will act.