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The Strange, Ironic Career of Section Five of the Voting Rights Act

Kousser, J. Morgan (2008) The Strange, Ironic Career of Section Five of the Voting Rights Act. Texas Law Review, 86 (4). pp. 667-775. ISSN 0040-4411.

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Strange events and ironic conjunctions pervade the narrative of the renewal of provisions of the Voting Rights Act 2005–2006. Never has the radical, still-controversial Act been treated in such hushed, reverential tones, and never has its discussion been so blatantly manipulated for immediate partisan advantage. Never have there been so many proposals for comprehensive changes when the temporary parts of the Act have come up for renewal, and never has there been less serious debate about the Act in committees and on the floor of Congress. Never has support for the Act in Congress and the country seemed so universal, and never has its constitutional future before the Supreme Court seemed so tenuous. This Article shows that the strange, ironic nature of the recent consideration of the Voting Rights Act is not unusual, but rather that it is typical of the history of the most controversial provision of the Act, Section 5, which requires that all changes in election laws in “covered jurisdictions,” chiefly in the Deep South, be submitted to the Justice Department or the District of Columbia District Court for “preclearance” before they are allowed to go into effect. In its early years, Section 5 was largely ignored by state and local governments, and the Justice Department was too disorganized to police it, anyway. After receiving a judicial blessing from the Supreme Court, Section 5 was for the first time vigorously enforced by the Nixon Administration, which had opposed its effective continuation, and the Carter Administration, the first administration headed by a president from the Deep South since before the Civil War. Two Supreme Court decisions in 1976 and 1980 that threatened to sap the Act’s vigor instead stimulated civil rights activists to mount a campaign for amendments that overwhelmed the Reagan Administration and led to the largest increase in minority elected officials since the first years of the post-Civil War Reconstruction. But no sooner had the promise of the Act finally been fulfilled than the Supreme Court—through strained interpretations of the Act’s intentions and, even more ironically, through the use of the Fourteenth and Fifteenth Amendments to hamper, instead of to protect, minority political rights—stripped the Act of much of its power. By 2006, the Act’s iconic status insured its persistence, but the fears of its staunchest proponents and the barely hidden antipathy of many members of the dominant political party prevented amendments that might have increased its chances to pass muster with the Roberts Court. Eight days after President George W. Bush signed the law, Gregory Coleman, a Texas lawyer with strong ties to the Republican Party, filed a serious challenge to the constitutionality of Section 5. The strange career continues. Analyzing the complete history of Section 5 and emphasizing the story’s ironic elements and shifting course yield lessons that may be useful in the continuing struggle to protect the political rights of minorities.

Item Type:Article
Additional Information:Texas Law Review is an independent, student-run scholarly publication based at The University of Texas School of Law. I thank Peyton McCrary, Rick Pildes, Mike Pitts, and Mark Posner for suggesting important changes in this Article, as well as for saving me from many errors of fact and interpretation, and I absolve them of any responsibility for the flaws that remain.
Issue or Number:4
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ID Code:41330
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Deposited On:25 Sep 2013 16:22
Last Modified:03 Oct 2019 05:48

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