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Voting Wrongs

While the American public eagerly waits to see if the Supreme Court will reach for the rainbow this week, the Court did something very nasty to a signature piece of civil rights legislation, the Voting Rights Act of 1965. More specifically, it gutted a provision that has been central to enforcement of the act in communities whose history of restricting voting rights inspired the act’s passage. For those of you who aren’t experts on voting rights, I’ll promise to try to minimize the wonkiness of the next two paragraphs. (I’d also highly recommend Amy Howe’s “In Plain English” recap at SCOTUSBlog.)

When civil rights activists sought to challenge Jim Crow-era restrictions on voting rights in the South, their task was made more difficult by the fact that disfranchisement did not come in the form of a single enactment denying suffrage to African-Americans. Rather, states maintained an intricate web of overlapping laws and informal practices, such that judicial invalidation of any one measure would leave many others in place. Attacking disfranchisement thus took on a Whack-a-Mole quality; fight one restrictive practice successfully, and others would soon pop up. And the entire system left significant discretion in the hands of officials to obstruct African-American would-be voters for any or no reason at all. (I still remember vividly hearing my graduate advisor, Lucius Barker, tell his civil rights/civil liberties classes about his experience, as a newly minted Ph.D., trying to register to vote in Jim Crow Louisiana. I share the account with students in my Supreme Court classes, though I’m sure I can’t quite capture the experience fully.) 

The Voting Rights Act provided a wide range of protections, but perhaps its most significant came in its attempt to keep states with dirty hands from enacting new restrictive measures. Under Section 5, “covered” jurisdictions would have to receive “preclearance” from either the Justice Department or a three-judge panel before they could change their electoral laws, practices, or procedures. Preclearance was required for matters as large as redistricting plans, and as small as proposals to relocate polling places. (Moving polling places without prior notice was one effective way to discourage African-American voters from showing up.) Section 4 of the act determined which jurisdictions were covered, and the key indicators were the presence of restrictive devices and of low voter turnout that reflected a history of discrimination. (Here’s a list of covered jurisdictions; note the skew toward the old Confederacy.) What made the preclearance requirement so effective was its inversion of the burden of proof: Instead of requiring the Justice Department to demonstrate that proposed changes were discriminatory, covered jurisdictions would now be required to demonstrate that these changes would not adversely affect minority voting rights.

Here’s the quick-and-dirty version of how the Court justified its decision to strike down Section 4:

1. The coverage requirement was once an appropriate response to extraordinary circumstances. Even though some states lost some of their traditional prerogative to control their own elections, the need to overcome Jim Crow in voting overrode state sovereignty. 

2. Those extraordinary circumstances no longer exist. Literacy tests and other restrictive devices are a thing of the past. Minority voter registration and turnout are roughly on par with white registration and turnout, and minority candidates for office have attained some measure of success.

3. It is unfair to single out particular jurisdictions for extra scrutiny, given current conditions. If Congress wishes to impose greater demands on certain states, then those demands must reflect prevailing conditions, not those of 1964.

Here’s what’s missing from the majority opinion:

1. Any recognition that the improvements which, to the majority, justify abandoning the coverage formula did not arise out of nowhere. Rather, they were in large measure the result of having to conduct one’s election-related business in the shadow of Section 5. Will bad behavior return now that the Voting Rights Act’s toughest deterrent has been neutralized? Based on the wave of state voter ID laws over the several years (one of which the Court upheld), as well as the continuation of felon disfranchisement laws dating back to Jim Crow (and enacted for racially illicit purposes), I would expect no less. Outreach toward groups you’ve treated hostilely is hard and requires a certain amount of self-reflection and, perhaps, penance. Much easier to keep them from voting. (And, as if on cue, within hours of the ruling Texas announced its plan to implement a voter ID law that had been blocked by Section 5.)

2. Any recognition that Congress, when it reauthorized the Voting Rights Act in 2006 with massive majorities in each chamber (390-33 in the House, 98-0 in the Senate), did not consider the coverage formula obsolete or the preclearance requirement onerous. The reauthorization was not done in a fit of absent-mindedness; rather, it reflected the product of 21 hearings and was bolstered by a legislative record exceeding 15,000 pages, as Justice Ruth Bader Ginsburg noted in her dissenting opinion. Maybe the coverage formula could benefit from an update, but that decision would appear to fall to Congress, which is expressly empowered by the Fifteenth Amendment to enforce the amendment through appropriate legislation. Instead, a five-justice majority has arrogated to itself the power to determine what is “appropriate.” Perhaps now we can dispense with the pretense that judicial activism, however one defines it, is somehow exclusively the province of liberals?

3. Any recognition that covered jurisdictions could escape Section 5 coverage by demonstrating to the Justice Department that they had clean hands on voting rights for the past decade. Indeed, dozens of jurisdictions have successfully availed themselves of the Voting Rights Act’s bailout provision. Shelby County, Alabama, the petitioner in the case announced today, did not have anything approaching clean hands, which explains why the county, instead of seeking a bailout, sought to have the Supreme Court change the rules of  the game.

4. An explanation of why, if the preclearance requirement is such an affront to the dignity of sovereign states, Section 5 was left standing. Chief Justice Roberts invited Congress to enact a new coverage formula that could take current conditions into account, but the House is more likely to vote to repeal the 22nd Amendment so that President Obama can run for a third term. Justice Thomas’s concurring opinion advocated striking down Section 5 too, and while I disagree with him on the merits of the move, I agree that once you’ve taken out Section 4 and utilized the reasoning that you did, there’s not much reason to prop up Section 5.

I should note that the Court’s decision does not portend a return to 1964. Literacy tests and white primaries will not be returning. And Section 2 of the Voting Rights Act, which has nationwide effect, “prohibits voting practices or procedures that discriminate on the basis of race, color, or membership in one of the language minority groups” specified elsewhere in the act. But while Section 2 has considerable utility in protecting voting rights, it has certain disadvantages compared with Section 5. Most notably, Section 5’s preclearance requirement can block restrictive policies and actions before they can take effect. In contrast, Section 2 lawsuits come after the policies have taken effect, place the burden of proof on challengers, and might offer remedies of limited value to successful challengers, given that the actors who enacted the restrictive policies might already have profited from their actions. What’s clear is that barring a congressional response, the voting rights landscape suddenly became much bleaker for those who rely on Washington to protect them from state and local governments seeking to rig the electoral deck.

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