This month marks the 50th anniversary of the Voting Rights Act of 1965, and there is some controversy about the future of the legislation.
Some context: Erroneous commentary to the contrary notwithstanding, the Voting Rights Act is not up for reauthorization; it was reauthorized for 25 years in 2006, with the relevant bill facing no serious opposition in Congress (it passed 390–33 in the House; no senator of either party voted against it) or from President George W. Bush, who gave a rather nice speech linking the law’s principles to those of the Declaration of Independence. The bedrock of the Voting Rights Act — that no American may be prevented from voting because of his race — remains as solid as ever.
What has changed is that one part of the Voting Rights Act — Section 4 — was ruled unconstitutional by the Supreme Court in Shelby County v. Holder. Section 4 established criteria under which certain states and jurisdictions — mainly old Democratic strongholds in the South, but also some other scattered states and jurisdictions, such as Manhattan and Brooklyn — were held to be eternally suspect; Section 5 followed up by requiring that any changes to these jurisdictions’ voting practices (from big projects such as redistricting to tiny changes such as relocating a polling station) receive federal preclearance before taking effect. The last authorization of the Voting Rights Act derived the Section 4 requirements from 1975 data; things have changed a bit in Mississippi and Texas since then, and the Court held that this obsolete data bore no logical relationship to the interest of protecting voting rights in the 21st century. Section 5 and its preclearance procedures in theory were left standing, but without Section 4 to determine where these rules apply, the entire preclearance procedure is effectively vacated.
That isn’t a bad thing. Under Section 2, it remains illegal for states to pass racially discriminatory election laws, and the scope of prohibition is very liberal, forbidding not only those laws passed with insidious racial intent but also those having “disparate impact,” which is to say those that produce racially unbalanced outcomes without discriminatory intent. If it could be shown that a jurisdiction stubbornly refuses to stop discriminating, there’s another provision — Section 3 — that allows a judge to require its changes to be precleared. And, of course, there is the U.S. Constitution itself, including the Fifteenth Amendment, which provides that “the right of citizens of the United States to vote shall not be denied or abridged . . . on account of race, color, or previous condition of servitude.”
Previously encumbered states are no longer considered guilty until proven innocent, and Democrats want to reverse that.
These protections are quite strong, and the Justice Department has been anything but passive in pursing voting-rights cases when the interests of minority voters are in question. The difference is that without Section 5 operational, discrimination or disparate impact must be proved in a court of law, just like complaints under any other civil-rights statute, whereas before the suspect jurisdictions would have been obliged to prove that their changes were acceptable before the fact.
The previously encumbered states are no longer considered guilty until proven innocent, and Democrats want to reverse that.
One reason is that the preclearance process can be used, perversely, to require racial gerrymandering that also stacks the deck politically. (This once helped Republicans but now would more likely help Democrats.) But the more salient reason lately is this: Many of those former Democratic strongholds are today heavily Republican states, and some of them, such as Texas, have pursued clean-elections agendas that annoy Democrats, especially big-city progressives. Voter-identification laws are at the top of the Democrats’ hit list, but so are reforms such as the discontinuation of same-day registration and the shortening of voting periods. The Democrats’ drive to “restore” the unconstitutional provisions of the Voting Rights Act would require a number of mainly Republican jurisdictions to go begging to the Justice Department every time they want to update their election practices. Democrats complain that these changes are not about electoral probity at all but are mainly intended to inconvenience Democratic voters, and that voter fraud is practically non-existent. Even if that were the case (and it isn’t; in Philadelphia you have election judges themselves being hauled in for casting fraudulent votes) voter-ID laws are a sensible prophylactic measure. It would be good if our elections were entirely above suspicion.
The forms of discrimination that the Voting Rights Act was passed to eliminate have been — this may surprise you — eliminated. Poll taxes and literacy tests have vanished. Black Americans’ rates of voter registration and election turnout used to be a tenth or less of white Americans’ rates; today it is not unusual for blacks to be registered at higher rates than whites, and in the 2012 election, black turnout exceeded white turnout — including in states with strict voter-ID laws. Which isn’t to say that federal nondiscrimination law should be eliminated entirely, only that complainants should be required to prove their cases in court and that all jurisdictions should be treated equally rather than relegating some to second-class status based on practices eliminated 40 or 50 years ago. Under normal circumstances our constitutional order leaves most decisions about the conduct of elections to the states; the Voting Rights Act recognizes that the situation facing black Americans in the 1950s and 1960s was anything but normal. But it is also the case that Section 5 was never intended to be permanent. Originally it was scheduled to sunset in five years; it was renewed in 1970 and repeatedly since. The end of the preclearance regime is in harmony with the progress we have made.
With the current majorities in Congress, Republicans are empowered to do nothing in this matter, and to see to it that nothing is done. The Voting Rights Act is fine as it is.