See You in Court
Voting Rights wrongs.


No surprise here. The GOP leadership last year signaled they didn’t have the political guts to modernize the bill to fit conditions in 2006 instead of 1965 when it was first passed; plus, too many Republicans still love herding as many blacks and Hispanics into safe racial voting homelands as possible, thus furthering GOP prospects in the bleached out surrounding districts.

A handful of congressmen — Westmoreland (R., Ga.), Norwood (R., Ga.), King (R., Iowa), and Gohmert (R., Tex.) led a principled effort to amend the bill so that it would actually have some relevance and purpose instead of being, among other things, little more than a racial gerrymandering tool to protect politicians from election competition. They failed, but went down fighting honorably.

They may get satisfaction in the end, however, when the Supreme Court finds the reauthorized bill to be unconstitutional. Of course, the Supreme Court has a way of humbling crystal-ball gazers like me, but for case anyway, the Court’s federalism case law on similar issues even has some prominent left-leaning law professors skeptical of its constitutionality.

Here’s why: The constitutionality of this bill ultimately depends on the need to subject some states and not others to Section 5 of the VRA, the “preclearance” provision. Section 5 requires all of nine states and parts of seven others to get permission from the U.S. attorney general or the D.C. district court to make any changes in election procedures like moving a polling place or redistricting voting districts. If Congress has verifiable data that governmental racial discrimination prevents minorities from fairly participating in the election process today, then many believe the reauthorized bill is likely constitutional.

So, what did Congress find during it long series of hearings exploring this issue? Well, other than a lot of heated, flowery rhetoric, no witness supporting reauthorization was able to produce any hard data or evidence showing minorities in these covered jurisdictions are denied participation in the election process. Instead, a massive study commissioned by the Project on Fair Representation at the American Enterprise Institute of each of the jurisdictions covered by Section 5 showed that, for the most part, minorities are actually better off in the covered jurisdictions than outside of them.

The AEI studies show that in covered states like Texas, Georgia, and North Carolina, for example, blacks and Hispanics register to vote and participate at the polls in numbers that often exceed those of whites; black and Hispanic candidates succeed or fail at rates comparable to white candidates of the same political party; and that blacks and Hispanics are represented in legislative bodies in percentages nearly identical to their percentages in the general population.

In any event, the absence of any data or hard evidence that Congress has in the record to justify the continuation of these penalties dooms the bill once it gets up to the Supreme Court. It simply isn’t 1965 anymore in the Deep South. But it may take the Supreme Court to tell that to Congress.

 – Edward Blum is the director of the Project on Fair Representation and a visiting fellow at the American Enterprise Institute.