Bench Memos

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Pryor and the Voting Rights Act


In typical understated fashion, on the Senate floor earlier Sen. Ted Kennedy (D, Mass.) raved that 11th Circuit nominee Bill Pryor wanted to “destroy” the Voting Rights Act. Here is the relevant section from Committee for Justice’s report on Pryor (footnotes not included):

Section 5 of the Voting Rights Act. Special interest groups also have attempted to misrepresent some of General Pryor’s statements about the Voting Rights Act of 1964. General Pryor has made it clear that “the Voting Rights Act is one of the greatest and most necessary laws in American history.” Because he believes so much in the Act, he has called for the amendment of Section 5 of the Act to ensure appropriate balance and state flexibility to ensure equal rights. He has criticized the “abuse of federal power” under Section 5, and has also taken to task federal courts that have “turned the Act on its head and wielded . . . power to deprive all voters of the right to select . . . public officers,” even though the Act “was passed to empower minority voters in the exercise of the franchise.” Indeed, as it is currently interpreted by courts, Section 5 has forced states to create or maintain safe minority seats which actually dilute minority voting strength elsewhere by packing minority voters into certain districts.

General Pryor’s concerns about Section 5 have been borne out in Georgia, where Section 5 has recently hampered the commonsense efforts of African-American state legislators to create a plan to maximize the number of voting districts that afford African-Americans a chance at electoral victory. A federal district court has found that Georgia’s plan violates Section 5, which has forced the state to appeal to the Supreme Court to have the plan approved. In Georgia’s brief to the Supreme Court, Thurbert Baker, the African-American Democratic Attorney General of Georgia, called Section 5 an “extraordinary transgression of the normal prerogatives of the states” and a “a grave intrusion into the authority of the states.” General Baker added, “Section 5 was initially enacted as a ‘temporary’ measure to last five years precisely because it was so intrusive.”

Section 5 has not only placed a burden on the states it covers, but also on the U.S. Justice Department, which has been forced to preclear a huge number of changes in voting practices that have nothing to do with minority voting rights. Section 5 requires covered states to preclear any decision to change “any voting qualification or prerequisite to voting, or standard, practice, or procedure with respect to voting.” For example, if a covered state moved voting booths from
one side of a street to another, this action would have to be precleared by the Justice Department pursuant to Section 5. From 2000-2002, the Justice Department received requests to preclear 49,567 voting changes. In response to these requests, the Department issued only 28 letters interposing objections to proposed changes under Section 5.

Because of these problems, it should come as no surprise that some of the most revered Justices of the U.S. Supreme Court have criticized Section 5. The second Justice John Marshall Harlan wrote, “I find it especially difficult to believe that Congress would single out a handful of States as requiring stricter federal supervision concerning their treatment of a problem that may well be just as serious in parts of the North as it is in the South.” Justice Lewis Powell stated that it is “a serious intrusion, incompatible with the basic structure of our system, for federal authorities to compel a State to submit its [reapportionment] legislation for advance review” under Section 5, and observed that he disagrees “with the unprecedented requirement of advance review of state or local legislative acts by federal authorities, rendered the more noxious by its selective application to only a few States.”

On the occasion of Justice Powell’s death, President Clinton saluted him as being “one of our most thoughtful and conscientious justices” and observed that he reviewed cases “without an ideological agenda.”39 General Pryor should also be saluted for thoughtfully contributing to the public debate on how to best overcome America’s tragic legacy of racism and discrimination, just as these icons of American jurisprudence have.


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