Section 5 is the part of the VRA that requires certain “covered jurisdictions” — mostly in the Deep South, but also including scattered other areas, like the Bronx and Alaska — to get permission from the federal government before they make any change in any procedure that has to do with voting. A careful congressional record is necessary because the statute raises two sets of constitutional problems: concerns about federalism (since some states are singled out for treatment that would normally be beyond federal authority) and concerns about Section 5’s inclusion of changes that are not tied to intentional racial discrimination (the usual scope of Congress’s power).
For the record to persuade a reviewing court that Congress has not exceeded its authority, it needs to do four things. It is doubtful that the House’s record does any of them.
First, the record should reassure the court that Congress considered this issue with some semblance of evenhandedness, rather than a verdict first, trial afterwards mentality.
But the latter was in fact the mentality, which is quite obvious. The record is stunningly one-sided. For instance, in the 170 pages of hearings on Justice O’Connor’s opinion for the Supreme Court in Georgia v. Ashcroft, there is not a single submission that defends Justice O’Connor’s opinion. In addition, there was not a single panel where more than one of the witnesses opposed reauthorization. Nor was there a single government official who testified or submitted a statement against reauthorization.
Second, the record must establish that, in 2006, the right of citizens to vote in the covered jurisdictions is widely being “denied or abridged … on account of race, color, or previous condition of servitude” (to quote the Fifteenth Amendment, the font of Congress’s authority).
The record contains some evidence of purposeful racial discrimination in voting, but it is almost all scattered and anecdotal rather than systematic and statistical (the systematic and statistical evidence, as discussed below, all points the other way). What’s more, much of the record evidence is not even about purposeful discrimination, which is what a court will be looking for, but instead is, at best, about practices that may have a disproportionate racial “effect.”
Third, the record must establish that purposeful discrimination in the covered jurisdictions is much worse than in the noncovered jurisdictions.
In fact, there is very little, if any, evidence in the record that compares covered jurisdictions to noncovered jurisdictions, and what comparisons there are undermine the bill. For example, one of the few discussions that compares, even implicitly, covered and noncovered jurisdictions — the statement by Charles D. Walton of the National Commission on the Voting Rights Act (NCVRA) — concludes that “discrimination in voting and in election processes in the northeastern states is a significant problem” and that there would be “a great benefit to having more of the country covered by the pre-clearance provisions of Section 5.”
A law review article by Laughlin McDonald of the ACLU’s Voting Rights Project is entitled “The Need to Expand the Coverage of Section 5 of the Voting Rights Act in Indian Country,” and proposes to do so “throughout the West.” Other submissions in the record complain about jurisdictions that are wholly uncovered or only partly covered: the states of Ohio, Florida, Missouri, and Indiana, for instance, and the cities of Milwaukee, Chicago, and Detroit. In general, the NCVRA held hearings all over the country, and all over the country it found problems — sometimes in covered jurisdictions, but often not.
Unsurprisingly, then, many of the House Republican leadership members from the South are particularly unhappy that their states are singled out for the penalty box.
Fourth, there should be careful discussion of why the extraordinary preclearance mechanism — and the use of an effects test — is still essential for addressing the intentional discrimination that does arise.
In fact, there is very little evidence in the record on this point.
The problem is not that Congress could have fulfilled these four requirements if it had been more careful. The problem is that, the more careful it is, the clearer it will be that, in fact, the extension of Section 5 simply cannot be constitutionally justified.
The House hearings included testimony from Professor Ronald Keith Gaddie and from my colleague Edward Blum, and the record included a series of exhaustive, and unrebutted, studies published by the American Enterprise Institute. All made quite clear that (a) there is no crisis in voting rights in 2006, and nothing even remotely comparable to what there was in 1965, and (b) there is no appreciable difference in the voting rights enjoyed in jurisdictions covered by Section 5 versus noncovered jurisdictions. So why, in 2006, are Texas and Arizona covered, while New Mexico, Oklahoma, and Arkansas are not? Why some counties in Florida and North Carolina, and not others? Why some boroughs in New York City, and not others? Why Alaska?
If the covered jurisdictions looked in 1965 like they look now, no one then would have given any consideration to a bill like Section 5. And yet many in Congress appear to think they can renew Section 5 in perpetuity.
Even putting aside constitutional requirements, there is an overwhelming reason why Congress should not want to reauthorize Section 5, even if it could: Its interpretation by the courts and the federal bureaucracy over the years has turned it into a powerful force for dragging jurisdictions into racial gerrymandering and racially segregated redistricting. That is bad for all Americans.
One last thing: The current bill also requires many jurisdictions to print ballots in foreign languages. This balkanizes the country, wastes taxpayers’ money, facilitates voter fraud, and is — again — unconstitutional. Unsurprisingly, then, it’s another provision in the current bill that many in the House Republican leadership are unhappy about, and it needs to come out, too. This is not a bill to be blithely passed along.