After the Shelby County decision in 2012 by the U.S. Supreme Court striking down the coverage formula in Section 4 of the Voting Rights Act, critics argued that discriminatory election policies would suddenly become rampant and voter participation would plummet. However, as Hans von Spakovsky explained in Newsweek earlier this month, their predictions were wrong.
Section 5 was necessary in 1965 because of the widespread, official discrimination that prevented black Americans from registering and voting as well as the constant attempts by local jurisdictions to evade federal court decrees. The disfranchisement rate was so bad that only 27.4 percent of blacks were registered in Georgia in 1964 and only 6.7 percent in Mississippi, compared to white registration of 62.6 percent and 69.9 percent, respectively. That disparity between black and white registration (and turnout) was a direct result of the horrendous discrimination suffered by black residents of those states.
The coverage formula of Section 4 was based on that disparity and Congress specifically designed it to capture those states that were engaging in such blatant discrimination. Thus, coverage under Section 4 was based on a jurisdiction maintaining a test or device as a prerequisite to voting as of Nov. 1, 1964, and registration or turnout of less than 50 percent in the 1964 election. Registration or turnout of less than 50 percent in the 1968 and 1972 elections was added in successive renewals of the law. That was the last time the coverage formula was revised, and Section 4 did not employ more current information on registration and turnout when Section 5 was last renewed in 2006.
Section 5 was needed in 1965. But as the Court recognized, time has not stood still and “[n]early 50 year later, things have changed dramatically.” The systematic, widespread discrimination against black voters has long since disappeared. As the Court recognized in the Northwest Austin case in 2009: “Voter turnout and registration rates now approach parity. Blatantly discriminatory evasions of federal decrees are rare. And minority candidates hold office at unprecedented levels.”
As Von Spakovsky noted in Newsweek, voter turnout has actually gone up since the Shelby County decision:
The United States Election Project (USEP) calculates turnout based on the Voting Eligible Population or VEP, which begins with the voting-age population of each state and subtracts individuals who are ineligible to vote, such as non-citizens and felons who have not yet had their ability to vote restored. The following numbers are the VEP turnout rate from USEP for the highest office on the ballot.
The national VEP turnout in the 2012 presidential election—before Shelby County—was 58 percent. The national VEP turnout in 2016—after Shelby County—was 59.2 percent. So turnout went up nationally that year and went up again in this year's election, which the USEP pegs at 66.6 percent.
There is no "voter suppression" epidemic in the U.S., contrary to the charges made by some. Such claims are a myth created to oppose any effort to implement common-sense reforms designed to improve the security and integrity of the election process, like requiring an ID to vote or ensuring that states maintain accurate, up-to-date voter-registration rolls. There is no need to reimpose Section 5 on states that left their discriminatory pasts behind—there has been no "backsliding."