The Voting Rights Act Under Attack: Shelby v. Holder


What is Shelby v. Holder?

Last fall, the U.S. Supreme Court agreed to hear the case of 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 9 full states, and 7 partially-covered states.

The Asian American Legal Defense and Education Fund (AALDEF) and the Asian American Justice Center (AAJC), member of the Asian American Center for Advancing Justice, filed an amicus brief with the Court in Shelby v. Holder on behalf of 28 Asian American groups. The brief urges the Court to uphold Section 5 of the VRA to ensure that any proposed new voting rules do not discriminate against or disenfranchise minority voters.

What is Section 5 of the Voting Rights Act?

Section 5, or the "preclearance provision," is the heart of the Voting Rights Act. It is intended to stop voter discrimination BEFORE it occurs. Under Section 5, states and counties with a history of racial and ethnic discrimination must have the U.S. Department of Justice (DOJ) or the Washington DC federal court review any changes to voting rules and practices to make sure the proposed changes do not reduce the ability of minority voters to participate in the electoral franchise.

The Voting Rights Act has been upheld by an unbroken line of four separate U.S. Supreme Court decisions through the decades.

In 2006, Congress voted overwhelmingly to reauthorize this essential law (98-0 in the Senate, and 390-33 in the House), recognizing that serious threats to our voting rights continue today.

Why is Section 5 necessary for Asian Americans?

Asian Americans have historically been targeted as foreigners and unwanted immigrants. Racism and discrimination against them persists to this day. These negative perceptions have had tangible consequences on the ability of Asian Americans to fully participate in the electoral and political process.

Section 5 has enabled AALDEF to bring four successful challenges on behalf of Asian American voters when voting changes undermined their right to vote.

Section 5 provides an efficient avenue of redress for discriminatory voting changes, for example, in the following areas:

  • Political Representation: Challenges can be brought to redistricting plans that diminish the opportunity of Asian American voters to elect candidates of their choice.

  • Language Access: Challenges can be brought to voting changes that cut back on available language assistance provided to voters.

  • Discriminatory Voting Changes: Challenges can be brought to strict voter photo identification laws, changes to the placement of polling sites, the candidate selection rules, and other practices that diminish voter access to the polls and candidates to the ballot.

How does Section 5 prevent discriminatory new voting rules?

Here are a few of the ways...

Redistricting: Following the 2010 Census, Texas redistricted the state legislature. The new plan weakened the ability of Asian Americans to elect candidates of their choice by placing Hubert Vo, the first Vietnamese American state representative in Texas history, into a district with a white incumbent state representative. Texas sought preclearance in the D.C. District Court. Because Asian Americans and other minorities were able to object to the Texas legislature's redistricting plan, the D.C. District Court ultimately denied it preclearance.

Voter Suppression: There was a record voter turnout of Asian American and other voters of color in the 2012 elections. However, many states attempted to pass voter suppression laws, including voter ID and proof of citizenship requirements that discriminate against Asian Americans. Section 5 provided a deterrent to many proposed voting changes in many states and a mechanism to challenge those laws before they were implemented.

Access to bilingual voting materials and assistance: Section 203 of the Voting Rights Act, requires some jurisdictions, including New York City, to provide translated ballots and voting materials as well as oral language assistance for voters with limited English proficiency. Three counties of New York City--New York, Kings, and the Bronx--are also covered by Section 5. When jurisdictions are covered under both Section 5 and Section 203, the combined provisions form a powerful tool to ensure that language minorities have full access to political participation.

Mrs. Eng and Mabel Tso.JPGIn New York City, where Chinese Americans had been living for over a century, Chinese-speaking voters had to make do with paper ballots. AALDEF's client Mrs. Eng, an 80-year-old Chinatown garment worker, said translated ballots and instructions are needed to ensure that voters can vote for the candidates they really want. "[W]hen I got into the machine it was like I was blind," Mrs. Eng has said. Fortunately for Mrs. Eng, she had the Voting Rights Act on her side. In 1994, 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 55,000 Chinese American voters, including Mrs. Eng. "There are so many more voting now," Mrs. Eng said. "Before, if you didn't know the name in English, how are you going to vote?"

Changes in polling sites: 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.

Changes in voting systems: 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 claimed 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.

Since Asian Americans and other minority voters continue to face discrimination at the polls, we need Section 5 of the Voting Rights Act more than ever.

Additional materials:

History of Advocacy

Asian Americans and the Voting Rights Act: The Case for Reauthorization

Testimony of Margaret Fung, Executive Director of AALDEF, Before the U.S. Senate Committee on the Judiciary Hearing on the Voting Rights Act: "Continuing Need for Section 203's Provisions for Limited English Proficient Voters" (June 13, 2006)

Statement of Karen K. Narasaki, President and Executive Director of AAJC, Before the U.S. Senate Committee on the Judiciary Hearing on the Voting Rights Act: "Continuing Need for Section 203's Provisions for Limited English Proficient Voters" (June 13, 2006)

Statement of Karen K. Narasaki, President and Executive Director of AAJC, Before the U.S. House of Representatives on the Legislative Hearing on H.R. 9: "A Bill to Reauthorize and Amend the Voting Rights Act of 1965: Part II" (May 6, 2006)

Recent Cases

Perry v. Perez (2012): AALDEF filed a successful amicus brief in Perry v. Perez, where the Texas State legislature's redistricting plan was denied preclearance for diminishing the opportunity of people of color to elect candidates of their choice.


New York Times: "Before Victories on Ballot, a Fight to Be Able to Read It"
By Jim Dwyer (September 18, 2009)

Pittsburgh Tribune Op-Ed by AAJC: "Court must uphold voting safeguards"
By Terry M. Ao (May 3, 2009)


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