The Disturbing Trend Series- Part 3:The Voting Rights Act of 1965 Penalizes for the Sins of the Past

Recent reports out of some websites indicate that the Justice Department under Eric Holder and Barack Obama is under orders to vigorously defend the Voting Rights Act of 1965 from challenges. This extends from redistricting considerations to voter ID laws, especially the latter. The ostensible reason behind their opposition to voter ID laws is that they disenfranchise minorities, students, and seniors. Voter ID laws per se are not the point of this article and will actually be addressed in a later installment of this series. Instead, I wish to wade into the potentially dangerous political waters of race relations and racial politics.

There are probably not too many people who would argue that one time in our history, states and other governmental units used various means to keep minorities- particularly blacks- from exercising their guaranteed constitutional right to vote. A century after the Civil War was fought, some states systematically kept blacks from voting through literacy tests, voter sponsorship and other tests. These were outlawed by the landmark Voter Rights Act of 1965. And probably no one on either side of the aisle would argue that although there may be minor disagreements- actually, solvable- as concerns the first three sections of that Act, it is the fourth and especially the fifth sections that cause the most controversy. Section Five notes that in any covered jurisdiction, any changes to voting laws in that area must be preapproved by either the Attorney General, or by a three-judge panel of the DC Circuit Court of Appeals. These changes run the gamut from voter ID requirements to redistricting every ten years. But before there can be a section five, jurisdictions are singled out by section 4.

In 2009, the US Supreme Court, although upholding the constitutionality of the Act, sent a thinly disguised warning to Congress that their patience was wearing thin regarding updating the law. They more or less warned that the entire law may be struck down if necessary changes were not made. Three cases are making their way towards the Court that may just provide that perfect test case to strike down the law. Two of them- from South Carolina and Texas- involve voter ID requirements. Both laws have been blocked by Holder’s Justice Department. The third involves changes in Shelby County, Alabama. There, a 3-judge panel upheld the constitutionality of the VRA although the county is seeking an review by the full DC Circuit.

South Carolina, Texas and Alabama are all covered directly by the Act and are three states among nine to which the law applies statewide. There are some seven other states where the law applies to some 12,000 governmental units. These areas were originally “chosen” because Congress determined they had the worst history of racial discrimination in the country at the time. It is section 4 that determines which states or government units must obey section 5. Thus, the nine states fully covered most strenuously object to the law since 41 other states are basically exempt. They now claim that the formula or method to determine coverage is out of date and no longer represents bias in voting. If true, then the burdens imposed by section 5 are an unconstitutional intrusion on the states. In effect, the challengers are asking: 47 years after the law went into effect, are the states with the worst records in voting bias still the same? The DC Circuit determined that they were, but the lone dissenter in that 2-1 decision thought otherwise. And although he disagreed, he also noted that he would have upheld Section 5, but struck down section 4.

The problem is that the formula used is based on the reality in these states and areas in 1965 or, at best, 1972. Challengers argue that the reality of 2006, the last time the law was extended (for 25 years), should be the criteria base line. As the dissenting judge noted, although the majority could point to criteria like the number of successful lawsuits or number of federal observers sent, reality also shows minority participation in voting and actual candidate success is much greater than in areas not covered. In short, perpetuation of the law as it stands now ignores possible racial problems elsewhere. Hence, for the affected areas, it is damned if you do and really damned if you don’t.

Besides redistricting, the biggest “problem” to proponents of the law is the establishment of a test, namely voter ID laws. We can sort of visualize these laws as a test for voters to pass. Here, liberal groups are using the VRA against these laws in South Carolina and Texas, two covered states. But, what about voter ID laws in states like Pennsylvania, Wisconsin and possibly Minnesota and Maine? These states are not covered. This reveals the hypocrisy of the whole liberal argument. If the purpose of the VRA’s Section 4 formula and Section 5 clearance requirements is to root out and eliminate allegedly racially biased hindrances to voting, then the formulas and the solutions (clearances) should apply everywhere because voter ID laws are not intrinsic to currently covered states. In other words, why- other than their approximate 1972 past- are these jurisdictions covered, but not others when it comes to these laws? Simply put, it is a national prejudice against the covered regions, mainly in the south, that perpetuates coverage. They are not being treated equally, but enter the game at a huge disadvantage. It is like starting the game by conceding a touchdown to your opponent before kick off. Put any other way, it is not equal treatment under the law, but an assumption of guilt because of long-past behaviors. Even criminals are considered innocent until proven guilty.

That is not to say that racial prejudice does not exist still. It may even exist to a greater degree in the south than in other regions, although racial prejudice knows no geographic impediments. However, use of the VRA has resulted in some remarkable gerrymandering come redistricting time every ten years. It would be interesting to see what a district in any state would look like without taking race or ethnicity into consideration when drawing the lines. My guess is they would look more rational, better geometrically shaped, and probably a lot more contiguous.

The bottom line is that a good candidate will represent the needs and wishes of all their constituents black, white or anything in between. An equally bottom line is that that candidate can likewise be black, white, or anything in between. Insisting on a black representative because a district may have a black majority is more racially charged than a voter ID law ever could be. If a state like Indiana can have a voter ID law or a state like Pennsylvania can redistrict without clearance from Washington DC, then every covered area under the VRA should have that equal right.

As it stands now, Shelby County is asking for an en banc review by the entire DC Circuit Court. That may slow its progress towards the Supreme Court. In July, the Court will hear the South Carolina and Texas cases. Should they not prevail, those two cases would likely land before the Supreme Court before the Shelby County case. Most legal experts believe that the Court would take on the issue having warned Congress three short years ago. Whatever happens, it will likely occur later this year and possibly be on next term’s docket late in the term well after this year’s elections. However, the decision will have important ramifications that will hopefully lead to a truly more colorblind society.