ICYMI: Fending off discriminatory voting practices

Bush_signs_Voting_Rights_ActMy latest op-ed, title above, appeared in The Virginian Pilot Thursday. In it, I discuss the Voting Rights Act of 1965, a part of history that temporarily remains as an effort to keep discriminatory voting practices from occurring.

Section 5 of the VRA is being challenged in the Supreme Court, in the case Shelby County v. Holder. Oral arguments are to start next week (ironically, the last week of Black History Month). SCOTUSblog, the source for all things relating to cases being argued before the Supreme Court, has a special page devoted to this case and includes arguments both for and against it.

Much of what I’ve read regarding this challenge really revolves the coverage provisions in Section 4. Should those be eliminated, Section 5 will fall, anyway. And what happens without Section 5? This article, published this morning, gives a great history of the Act and concludes (emphasis mine):

It will also encourage lawmakers in states like South Carolina to “structure” their voting laws without the burden of worrying about an initial round of review by federal election officials. Logic — and history — suggest this will disenfranchise minority voters. Moreover, without Section 5, the evidentiary burden of challenging this new generation of voting laws will fall not upon the local officials seeking to implement the new measures but upon those effectively disenfranchised by them. Like the way it was before the Act was enacted in August 1965.

Are there issues with the VRA? You bet. The coverage parts need to be changed. Congress needs to get off its collective duffs and fix that. And the cost of preclearance has to be more reasonable.

But to eliminate Section 5 is to take us back nearly 50 years. I’m not willing to go back there.

Some wonder why we are always fighting the battles of years gone by, why our race problem has never been healed in this country. It is precisely because the laws set in place to make discrimination illegal are under constant challenge.The 15th Amendment should have been enough. It wasn’t enough in 1965 and it’s not enough today.

My column appears in The Virginian-Pilot on Thursdays. You can see the columns as they are published here, or navigate to them from the PilotOnline.com homepage by clicking on Opinion and then choosing my name at the bottom of the dropdown list. You can also see the columns by liking my Facebook page. Although my column appears weekly, I am not and have never been an employee of The Virginian-Pilot.

4 thoughts on “ICYMI: Fending off discriminatory voting practices

  1. “The coverage parts need to be changed. Congress needs to get off its collective duffs and fix that.”

    Changed from current law to what? Fixed how? If you’re talking about a nationwide preclearance requirement (and your Pilot piece doesn’t make that very clear), I don’t think that’s a viable solution for sake of efficiency, effectiveness, or cost. Nor would subjecting every jurisdiction to preclearance be in keeping with the point of the VRA in the first place: addressing discriminatory practices where they had existed in the past. What changes would you make to the coverage of the preclearance requirements to address the problems that you see with it?

    “And the cost of preclearance has to be more reasonable.”

    How can the cost of preclearance be made more reasonable? The process is either file a suit in the United States District Court for the District of Columbia (and I think we all understand how glutted the court system is) or petition the Attorney General. Neither of those options is inexpensive and neither is particularly expeditious. What changes would you make to make the cost more reasonable?

    Finally, you note that “Part of the argument is that such a provision is unnecessary in an era in which a black man has been twice elected president.” In addition to that, I’d add this statistic: from 1995-2004, according to the U.S. Commission on Civil Rights (published here: http://www.usccr.gov/pubs/051006VRAStatReport.pdf), the Attorney General interposed an objection to proposed changes in less than 0.1% of preclearance cases. You say you’re “not willing to go back there,” but the evidence seems to suggest that even in the absence of section 5 preclearance requirements your nightmare scenario would not materialize. What would it take for you to conclude that Section 5 is, in fact, no longer necessary?

  2. Some of your questions are reasonable, Joseph, but I disagree with the conclusion that because the overwhelming majority of preclearance jurisdictions complied with the letter of the law in the opinion of the U.S. Department of Justice, the law must be no longer necessary. We have no way of knowing if any or all of these jurisdictions would have structured their voting laws or drawn their election districts in the same manner in the absence of the Voting Rights Act of 1965, and it may in fact be the case that the desire to avoid a dispute with the DOJ was an important factor in determining how any changes would be enacted.

    Considering that as recently as last year, the Republican leader of Pennsylvania’s state house said that one proposed change to that state’s voter ID laws was “going to allow Governor Romney to win the state of Pennsylvania,” I’m disinclined to believe that we yet live in a golden age where we can trust state legislatures around the country not to squirrel laws impacting minority voters in favor of an alternative partisan agenda.

    1. “it may in fact be the case that the desire to avoid a dispute with the DOJ was an important factor in determining how any changes would be enacted.”

      That very well may be true. That’s why Section 2 of the VRA can’t be overlooked. The sorts of discriminatory practices that people are rightly concerned about would not suddenly become legal if Section 5 were to be repealed both because of Section 2 and also because of the 15th Amendment.

      The overriding purpose of Section 5 is to allow the federal government to go after particular laws where case-by-case litigation would be ineffective (and if you read some of the posts from the symposium at SCOTUSblog which is linked above, you’ll see that even those who support Section 5 say basically that). If we’re at the point where the Attorney General can effectively keep discriminatory practices at bay with Section 2 lawsuits (and that’s why I think the 0.1% objection statistic is significant) then I think it makes sense to, perhaps, conclude that maybe it doesn’t make sense to treat certain areas of the country like the worst discriminators from decades ago when they no longer fall in that category.

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