Politics & Policy

The Demise of Section 5?

It’s become a politicized weapon wielded by the Justice Department.

Liberal groups may very soon see a provision of the Voting Rights Act they cherish and exploit declared unconstitutional because they would not listen to the Supreme Court’s warning about its deficiencies.

Instead, they engaged in a reactionary defense of a sweeping federal power that badly needed updating and retooling. Now they may lose it all, if Wednesday’s hearing before the Supreme Court on Shelby County v. Holder, a challenge to Section 5 of the Voting Rights Act, provides any clues.

In 2009, the Supreme Court came close to invalidating Section 5, which forces nine — mostly Southern — states along with some cities and counties to seek permission, or “pre-clearance” from the federal government before making any changes in their election laws. “Whether conditions continue to justify such legislation is a difficult constitutional question,” Chief Justice John Roberts wrote in a narrowly decided opinion handed down by the Court that left Section 5 still standing. He noted that the data used to decide which jurisdictions were covered by the VRA hadn’t been updated since 1972. The handwriting on the Court’s wall was clear — racial conditions in the covered states had dramatically changed, but Congress had done nothing to alter which jurisdictions should be covered. Absent change, the law was vulnerable to being found unconstitutional.

Given that Congress was controlled by liberal Democrats in 2009 and 2010, liberal voting-rights groups could have asked it to adjust the law by, say, making it easier for covered jurisdictions to “bail-out” of the law or changing the standards by which coverage was determined. Instead, they chose to roll the dice and hope the Court would continue to let Section 5 stand.

Liberals had previously had a chance to remedy Section 5’s problems when it had to be renewed by Congress in 2006. As Rick Pildes, an election-law expert at New York University’s School of Law, noted on Election Law Blog: “The House did not even consider evidence comparing race and voting issues in the covered and non-covered jurisdictions; it did not seem to consider these comparisons necessary or relevant. The Senate Judiciary Committee was certainly told in 2006 that the failure to update the Act would put it in constitutional jeopardy . . . [but] it was politically easier for Congress to simply reaffirm the status quo, rather than confront the difficult policy and political questions posed by making judgments about where problems of race and voting rights were most acute today (are Ohio and Pennsylvania similar today to Virginia and North Carolina?).”

I’ll put it more bluntly. Congress has now renewed Section 5’s provisions without any changes a total of four times, in large part because members who voted against renewing it were bound to be criticized as racists. In other words, the votes to renew Section 5 were legislators at their least courageous.

If the Supreme Court now declares Section 5 unconstitutional, few observers expect that Congress will be able to agree on reviving it. After all, any discriminatory voting practices would still be subject to lawsuits and temporary restraining orders through Section 2 of the VRA. These protections would remain extensive and broad.

Back in 1966, the Supreme Court ruled that Section 5’s extraordinary intrusion into state sovereignty was justified by the “unique circumstances” of Jim Crow and the blatant discrimination in voting that was occurring in some jurisdictions. But it noted that Section 5 was enacted as a temporary measure, and would expire after only five years — in 1970. That was over four decades ago.

The reality today is that Section 5 has become a politicized weapon wielded by the Justice Department, which last year, for example, used it to block South Carolina’s adoption of a voter-ID law. A federal court found Justice’s objection to be without merit and based on dubious evidence of discrimination; the court ordered that South Carolina be reimbursed for its legal costs. As Hans von Spakovsky of the Heritage Foundation notes: “Of the 12,000 covered states, municipalities, counties, city governments, in the last ten years, there have only been 37 objections under Section 5.”

So while Section 5 is rarely invoked, it remains a dangerous political club the federal government can use to browbeat those states covered by it. Voting-rights groups are convinced that racial discrimination in elections is rampant, exemplified by photo-ID laws that inconveniently for them are supported by clear majorities of African Americans and Hispanics. As Zach Roth of MSNBC told me this week in a Yahoo.com forum: “This challenge to the VRA comes out of the same conservative movement that’s behind restrictive voting laws across the country recently: photo ID, cutbacks to early voting, purges of rolls, etc. This would be the biggest win yet for those looking to make voting harder.”

Constitutionally, the Supreme Court would be on firm ground in striking down Section 5. Politically, its demise would inject a healthy dose of common sense into the debate over voting rights. Concerns about the discriminatory effects of voter laws should be handled by courts and legislators, not by federal bureaucrats lording it over those states unlucky enough to be caught in a regulatory trap.

— John Fund is a national-affairs columnist for NRO.


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