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Possible Expansion of the Voting Rights Act?

by John Parker // Published July 6, 2009

In a June 28, 2009 editorial in the Washington Post, Georgia Congressman Lynn Westmoreland opined about the recent Supreme Court decision, Northwest Austin Municipal Utility District Number One v. Holder.  In the editorial, Congressman Westmoreland applauded the decision allowing the small utility district in Texas to bailout from Section 5 coverage under the Voting Rights Act, and acknowledged that Section 5, as it is currently written, "is on shaky ground".  In response to the Supreme Court decision, Congressman Westmoreland and former Georgia Congressman Charlie Norwood argued for the possible expansion of the Section 5 protection coverage area based on a new formula when Congress passed the 2006 extension of the Voting Rights Act.  Westmoreland, Norwood and other southern Congressmen felt that the Voting Rights Act unjustly gave extra scrutiny of potential voter discrimination in covered areas based on past practices that prevented minorities from voting for elected officials.  Westmoreland argued that Section 5 coverage should reflect the changing demographics of the nation and include jurisdictions that have had considerable recent election disputes, such as Ohio, Florida, and Missouri. 

Echoing that sentiment, Professor Nathaniel Persily of Columbia University noted on June 30, 2009 at the Future of Voting Rights conference sponsored by the New America Foundation and FairVote that Section 5 coverage may need to be expanded to include jurisdictions that have continued electoral problems.  But while expansion seems like an easy fix, Kristen Clarke of the NAACP Legal Defense Fund (speaking at the same conference) warned that a possible expansion of Section 5 could potentially become a "poison pill".  Clarke notes that Section 5 was essentially a temporary provision that was applied to areas that have had a history of trickery and intimidation of minority voters and that other laws have been passed to address current Election Day issues in areas not covered by Section 5. Thus, if an expansion of Section 5 becomes reality, the Supreme Court may further strip down coverage of the Voting Rights Act, as any future legislation that would expand coverage of Section 5 may face a challenge.