Although the voting protections of the Fifteenth Amendment and Section 2 of the Voting Rights Act are permanent,
Section 5 remains in effect through 2031.
Coverage Under the Special Provisions of the Voting Rights Act
Section 5 freezes election practices or procedures in certain states until the new procedures have been subjected to review, either after an administrative review by the United States Attorney General, or after a lawsuit before the United States District Court for the District of Columbia. This means that voting changes in covered jurisdictions may not be used until that review has been obtained.
The requirement was enacted in 1965 as temporary legislation, to expire in five years, and applicable only to certain states. The specially covered jurisdictions were identified in Section 4 by a formula. The first element in the formula was that the state or political subdivision of the state maintained on November 1, 1964, a "test or device," restricting the opportunity to register and vote. The second element of the formula would be satisfied if the Director of the Census determined that less than 50 percent of persons of voting age were registered to vote on November 1, 1964, or that less than 50 percent of persons of voting age voted in the presidential election of November 1964. Application of this formula resulted in the following states becoming, in their entirety, "covered jurisdictions": Alabama, Alaska, Georgia, Louisiana, Mississippi, South Carolina, and Virginia, In addition, certain political subdivisions (usually counties) in four other states (Arizona, Hawaii, Idaho, and North Carolina were covered. It also provided a procedure to terminate this coverage.
Under Section 5, any change with respect to voting in a covered jurisdiction -- or any political subunit within it -- cannot legally be enforced unless and until the jurisdiction first obtains the requisite determination by the United States District Court for the District of Columbia or makes a submission to the Attorney General. This requires proof that the proposed voting change does not deny or abridge the right to vote on account of race, color, or membership in a language minority group. If the jurisdiction is unable to prove the absence of such discrimination, the District Court denies the requested judgment, or in the case of administrative submissions, the Attorney General objects to the change, and it remains legally unenforceable.
In 1970, Congress recognized the continuing need for the special provisions of the Voting Rights Act, which were due to expire that year, and renewed them for another five years. It also adopted an additional coverage formula, identical to the original formula except that it referenced November 1968 as the date to determine if there was a test or device, levels of voter registration, and electoral participation. This additional formula resulted in the partial coverage of ten states.
In 1975, the special provisions of the Voting Rights Act were extended for another seven years, and were broadened to address voting discrimination against members of "language minority groups." An additional coverage formula was enacted, based on the presence of tests or devices and levels of voter registration and participation as of November 1972. In addition, the 1965 definition of "test or device" was expanded to include the practice of providing election information, including ballots, only in English in states or political subdivisions where members of a single language minority constituted more than five percent of the citizens of voting age. This third formula had the effect of covering Alaska, Arizona, and Texas in their entirety, and parts of California, Florida, Michigan, New York, North Carolina, and South Dakota.
In 1982, Congress extended Section 5 for 25 years, but no new Section 5 coverage formula was adopted. It did, however, modify the procedure for a jurisdiction to terminate coverage under the special provisions.
In 2006, Congress extended the requirements Section 5 for an additional 25 years.
The Voting Section is responsible for reviewing voting changes submitted to the Attorney General (15,000 to 24,000 changes each year) and for defending Section 5 declaratory judgments in court. The Voting Section also brings lawsuits to enjoin the enforcement of voting changes that have not received the required Section 5 review.
Almost all voting changes are submitted to the Attorney General, and over the past decade the Attorney General has received submissions of between 14,000 and 22,000 voting changes per year. The Attorney General may interpose an objection by informing the jurisdiction of the decision no later than 60 days after a voting change has been submitted. Most voting changes submitted to the Attorney General are determined to have met the Section 5 standard; since Section 5 was enacted, the Attorney General has objected to about one percent of the voting changes that have been submitted.
The Attorney General has published detailed guidelines that explain how to make Section 5 submissions and the process of how the Attorney General decides whether the jurisdiction has met its burden. Notices of Section 5 submissions are regularly posted to the Internet and can be mailed upon request to interested individuals, organizations and jurisdictions.