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An Outdated Law



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The New York Times editorial page — predictably — is convinced that the most radical provision of the 1965 Voting Rights Act is still as necessary as it was four decades ago. A tiny Texas utility district has challenged the constitutionality of section 5, which demands prior federal “preclearance” of every change in the method of voting in what are called “covered” jurisdictions. Seven states in the South, as well as Arizona, Texas, and scattered counties elsewhere across the nation are on that “covered” list.

Section 5 was originally included in the statute as a temporary measure to respond to the emergency of persistent black disfranchisement in the South — and the South alone. Its extended reach was the result of subsequent amendments. It effectively places the electoral systems of the South in federal receivership — an understandable action in 1965, and an unjustifiable one today. Yet in 2006, despite decades of transformative racial change, the provision was not only renewed for the fourth time, but actually strengthened. Its new expiration date is now 2031.

The provision is so constitutionally extraordinary that in 1965 Congress gave it a life of only five years. If a city, say, wants to change the location of a polling place or it a state needs to draw new districting lines after a decennial census, the burden of proving the proposed change is not racially suspect falls on the jurisdiction itself. That is, it must prove a negative: the absence of discriminatory intent or effect. And suspicion of wrongdoing is sufficient to sink a proposal; no actual racial animus or harm need be shown. In the mid-1960s, it was reasonable to assume such motivations were widespread throughout the covered jurisdictions.

More than forty years later, the Texas utility district in Northwest Austin Municipal Utility District No. 1 v. Holder seeks an end to this antiquated system. The district has no record of electoral discrimination. At a minimum, it should be allowed to “bail out” from section 5 coverage, it argued. Alternatively, the Court should declare all of the recently rewritten section 5 unconstitutional. The Jim Crow South has long disappeared. Preclearance, which was included in the act to combat the entrenched racism of the region, is a relic from a bygone era.

That was not the view of the New York Times in its June 12 editorial. “This landmark law is still very much needed,” it argues. “The Voting Rights Act . . . continues to provide much-needed protection for minority voters.” Only “foes” of the statute see it as outdated.

Actually, no one is a “foe” of the statute; the issue is only one provision — section 5. Proof that it is needed, the Times says, are the “deeply flawed and discriminatory” voter registration anti-fraud measures that Georgia attempted to institute. The state had tried to verify the identity and citizenship of people on the registration rolls, but its method of doing so disproportionately disfranchised black, Hispanic, and Asian voters, the Times argued. Happily, in its view, the Obama Justice Department refused to preclear the Georgia law. But if the Texas utility district wins its case, preclearance is unlikely to survive.

The Times offers no alternative method of verifying people’s eligibility to register. And sad to say, the whole issue of registration and ballot fraud has become one that splits Americans along party lines. Democrats generally stress voter access, and charge Republicans with pushing anti-fraud measures to make it harder to poor and minority voters to participate in elections. Republicans see Democratic opposition to such laws as simply motivated by their desire for new Democratic voters, without much concern about their citizenship.

In fact, there is a bit of a trade-off between access and tough identification laws for elderly registrants born in the rural South, many of them black. They have a harder time documenting their history; they may not even have birth certificates. But that is a small — and diminishing — population by now. With the exception of Florida, among southern states Georgia does have an unusually high number of Hispanics — almost 700,000 or more than 7 percent of the state’s population. They should be given every opportunity to establish their citizenship; if they are immigrants who underwent naturalization, surely they have papers. Checking voter eligibility — as long as the process is administered fairly — should be regarded as a basic good-government measure.

Not everyone agrees, but settling this highly charged political issue should not depend on the outcome of the Austin case soon to be decided by the Supreme Court. State registration rules are integral to self-government. Justice Department preclearance decisions are made behind closed doors, with (at best) explanations in the form of vague rhetoric. Political questions should be resolved in the open through the political process. Section 5 — once essential — no longer enhances democratic government.

Abigail Thernstrom’s newest book is Voting Rights — and Wrongs: The Elusive Quest for Racially Fair Elections. She is an adjunct scholar at the American Enterprise Institute and the vice-chair of the U.S. Commission on Civil Rights.



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