The Senate Judiciary Committee will hold hearings on Wednesday about legislation to negate the Supreme Court’s decision a year ago in Shelby County v. Holder, which struck down the coverage formula for Section 5 of the Voting Rights Act (VRA) of 1965. The announced aim of the bill is to bring back to life Section 5, by coming up with a new coverage formula that achieves much the same thing without relying on data that is more than 40 years old. The first question to ask is: Is this a good idea?
No, it is not. There are other big problems with the bill: It exceeds Congress’s constitutional authority; features for the first time racial classifications that offer protections for “minority voters” that it withholds from “nonminority” voters; contains provisions that have nothing to do with Section 5 (including scary new litigation authority given to Attorney General Eric Holder and his civil-rights-group cronies); encourages racial gerrymandering, segregation, and racial identity politics, with an eye to partisan advantage; has all kinds of pernicious side effects as a result of the “disparate impact” approach that it enshrines; encourages spurious litigation; and burdens localities with bean-counting requirements, to name a few. But it fails to clear even the basic initial hurdle: We just don’t need Section 5 anymore.
Section 5 was an extraordinary provision. It said that nine entire states and parts of seven others could not make any change — no matter how small — in any voting practice or procedure without getting advance permission from the federal government. The federal government had to be convinced ahead of time that the change had no discriminatory “purpose” or “effect.” It basically put the burden of proof on a state or local government to establish its innocence — not only of disparate treatment, but also of anything with a disproportionate racial impact.
Now, this was a good idea in 1965, although even Chief Justice Earl Warren twice called the provision “stringent” in upholding it. At that time, whole swaths of the country were systematically and blatantly denying people the right to vote because of race. But is that still true in 2014?
The answer, of course, is no. The South of 2014 is not the South of 1965. There are no large sections of the country like 1965 Mississippi. I very much doubt, in fact, that there is any single state or local jurisdiction that is like 1965 Mississippi.
But what if there were? Well, then you have Section 3 of the VRA, which allows a judge to put a jurisdiction that denies or restricts voting rights into this kind of “preclearance” receivership. It’s been done. For other instances of racial discrimination, you have Section 2 of the VRA, which applies to the whole country. What’s more, it uses a “results” standard, which means that you don’t even have to prove outright disparate treatment. And of course you have every other part of the VRA to use — federal examiners and observers, no literacy tests, and so forth. Remember that the only provision the Court struck down in the Shelby County decision was the coverage formula for Section 5; the rest of the VRA is untouched.
Indeed, these other provisions are now being used, aggressively, by the Obama administration and liberal civil-rights groups, and there is no evidence that they need more weapons in their arsenals. If they can prove their cases in court, they will win — the way it works with every other civil-rights law — but with Section 5 they have gotten used to winning without having to prove anything, and that’s the only reason for the efforts to bring back Section 5.
That should be the end of the matter. We don’t need Section 5 anymore. If it weren’t for the fact that, once upon a time, we did have states that made Section 5 necessary, and that over the years this unique provision has made life much easier for some lawyers, does anyone really believe that a bill like this would, in 2014, be drafted and given serious consideration? Of course not.
— Roger Clegg is president and general counsel of the Center for Equal Opportunity.