Days before the U.S. Supreme Court was set to hear arguments in Shelby County v. Holder, a case challenging the constitutionality of Section 5 of the Voting Rights Act, legal experts said they feared that striking it down would hurt Indian Country and Native American voters.
Enacted in 1965 as a temporary provision, Section 5 freezes election practices or procedures in certain states and local governments, mostly in the south, until the new procedures have been subjected to review or "precleared" by the Justice Department or a federal court. Congress has since reauthorized Section 5 four times. Currently, it is set to expire in 2031.
In order to make changes to their voting rules, the states in question must demonstrate that the rules do not have the purpose of discriminating — or that regardless of intent, that the new rules will not have a discriminatory effect — based on race or color, or against a “language minority group,” including persons who are American Indian, Asian American, Alaskan Natives, or of Spanish heritage.
The Justice Department has since objected to about one percent of the prospective voting rules changes that have been submitted to the agency. On February 27, the Supreme Court is set to hear arguments in Shelby County, challenging Congress's authority to reauthorize the program in 2006.
During a February 22 media conference call with legal experts, Laughlin McDonald, director of the ACLU Voting Rights Project, said he thinks it is the Supreme Court's duty to reject the challenge of constitutionality of Section 5. "The Section 5 objections enforcement actions…show that the extension of Section 5 in 2006 was more than justified,” McDonald said. In his report, “Voting Rights in Indian Country,” McDonald lays out several discriminatory decisions, such as redistricting in South Dakota, which diluted the Indian vote.
However, Section 5 is not permanent and jurisdictions may terminate or "bail out" from coverage if they have not discriminated for at least 10 years. Nine states are currently covered as a whole: Alabama, Alaska, Arizona, Georgia, Louisiana, Mississippi, South Carolina, Texas, and Virginia.
According to Patricia Ferguson-Bohnee, law professor at Arizona State University and author of an amicus brief filed by the Navajo Nation, Section 5 has improved American Indian's voting rights in Arizona. However, she said, voters are still facing challenges, such as distant poll locations, linguistic barriers, and restrictive ID requirements.
James Tucker, a voting rights of counsel with Wilson Elser Moskowitz Edelman & Dicker and a primary author of the amicus brief filed by the Alaska Federation of Natives, said Section 5 remains an appropriate measure to prevent the ongoing voting discrimination against Alaska Natives. Section 203 of the Act requires that minorities in certain designated jurisdictions are to be given assistance in voting in their native language.
Alaska has the greatest number of indigenous languages in the country and Native Alaskan suffered historical educational discrimination that prevented them from learning English, Tucker said. In Nick v. Bethel and the state of Alaska, a federal court found that by providing all voter registration and voting information only in English, and by failing to provide translators, Alaska lacked responsiveness in remedying discrimination against Alaska Natives.