Photo by: Morriswa

Often times it is a brave New Yorker that journeys to a dangerous part of the country to spread our views of freedom and individual rights to people oppressed by a society determined to prevent any changes to the system of inequality and injustice. Indeed, it was two young white New Yorkers, Michael Schwerner, 24, and Andrew Goodman, 20, who gave their lives so that African Americans in the South could register to vote. The murder of these two courageous New Yorkers sparked outrage among the American public and spurred the signing of the Voting Rights Act of 1965.

On February 27th, the U.S. Supreme Court will hear arguments in Shelby County v. Holder, a challenge by an Alabama county to Section 5 of the Voting Rights Act (VRA). Shelby County’s challenge seeks to invalidate the law not only in Alabama, but everywhere Section 5 applies, including nine full states, and jurisdictions in seven partially-covered states, including Manhattan, Brooklyn, and the Bronx in New York.

Many people are surprised to discover that three counties in New York City are covered, but unfortunately, these counties employed tests or devices that discriminated against racial and language minorities and are therefore covered jurisdictions. Both sides of the current debate on Section 5 of the Voting Rights Act have focused largely on its continuing need in Southern states, and ignored its crucial role in preventing the dilution of minority voter strength in New York City. When the Voting Rights Act was reauthorized in 2006, a bipartisan group of 29 members of New York’s congressional delegation like Senator Chuck Schumer (D) and Peter King (R) voted to uphold the law.

If the Supreme Court were to strike down Section 5, a vital tool to protect New York voters from the real and continuing threat of discrimination would be abandoned.

Section 5, or the “preclearance provision,” is the heart of the VRA. It is intended to stop voter discrimination before it occurs. Under Section 5, states and counties with a history of racial discrimination must have the U.S. Department of Justice (DOJ) or the Washington DC district court review any changes to voting rules and practices to ensure the proposed changes do not reduce the ability of minority voters to participate in the electoral franchise.

New York City will not be covered forever. Section 5 of the VRA is equipped with a “bailout” provision which allows for covered jurisdictions to “bailout” from coverage if they can demonstrate that they have not engaged in discriminatory conduct for 10 years. Every jurisdiction that has ever applied for a bailout has been granted one.

Without even considering incidents concerning blacks or Latinos, New York City has sought to implement voting changes that would have diminished the ability of Asian-Americans to equally participate in the electoral franchise.

Nationally, the DOJ used Section 5 to reject more than 1,000 proposed discriminatory voting changes between 1982 and 2006. In addition, hundreds of voting changes were withdrawn by covered jurisdictions after just a request for more information. These examples are not limited to Southern states. They include New York City, where Section 5 of the Voting Rights Act continues to play a vital role.

  • In 1994, the Asian American Legal Defense and Education Fund (AALDEF) asked the Justice Department to deny preclearance of New York City’s Chinese Language Assistance Program, which failed to include candidate names in Chinese on the voting machine ballots. As a result, New York City was forced to provide fully translated bilingual ballots, affecting 54,000 Chinese American voters.
  • One week before the New York City primary elections in 2001, which had been rescheduled after the 9/11 attacks on the World Trade Center, AALDEF found out that a busy poll site in Manhattan’s Chinatown was scheduled to be closed. The Board of Elections made no announcements in Chinese-language newspapers and did not inform limited English proficient voters about this change. After AALDEF complained about the disruptive impact of the poll site change, the DOJ issued an objection and informed the Board that the change could not take effect. On Primary Day, hundreds of votes were cast at the original Chinatown poll site. Without Section 5, many of these voters would have lost their right to vote.
  • In 1998, New York State proposed a change in the method of voting for New York City community school boards, on which minority groups elected more representatives than their proportion of the population. AALDEF argued that the “limited voting” rules would restrict the electoral success of Asian Americans. Because New York was covered by Section 5, the DOJ denied preclearance and prevented the discriminatory voting change from taking effect.

    New York needs Section 5 of the Voting Rights Act more than ever. Section 5 is not outdated, and the bailout provision ensures that jurisdictions that have outgrown this burdensome coverage will not be covered forever. The necessary protections it provides in New York City should not be ignored.

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