A Great Day for Commonsense at the Supreme Court

Today, in a 5-4 decision by Chief Justice John Roberts split along the traditional ideological lines, the Court ruled that Section 4 of the Voting Rights Act of 1965 was unconstitutional in that it treated political districts in one part of the country different than those in other parts of the country. They let stand other sections of that law mainly because they were not at issue in this case. But, section 5- the practical application of Section 4- logically flows from Section 4 and for all intents and purposes, because Section 4 is unconstitutional, Section 5 cannot be enforced. This is a serious blow to Eric Holder’s activist Civil Rights Division of the Justice Department where they have intervened to block redistricting in southern states, voter ID laws and such minute state election laws as the location of polling places because it “may” make it difficult for minorities to cast a ballot, register, or participate in the political process. To put it succinctly, this was a terrible blow to the Holder’s Justice Department.

The Voting Rights Act of 1965 was passed as a follow up to the Civil Rights Act of 1964. To briefly summarize, Section 2 bars voting discrimination and opens federal district courts as the vehicle for litigation. A 1982 amendment noted that any practice that had a discriminatory result was prohibited and that proof of intentional discrimination was not required. All someone had to do is show, in effect, statistically that minorities were under-represented in the political process regardless of demographic dynamics in the district. In 2009, the Court ruled that states do not have to draw district lines favorable to minorities if the minority population is less than half. That is, they tacitly approved minority-majority districts. Section 3 basically gave the Attorney General authority and broad powers to intervene in state voting laws if they believed they ran afoul of the law. He could initiate actions himself, asks for injunctions against the state laws, and send federal examiners into these areas to oversee elections.

Section 4 is the formula used to determine what jurisdictions are covered under the law automatically based on a statistical formula. In effect, that formula was devised to “capture” the entire former Confederacy (although only 39 counties in North Carolina) and “accidentally” captured Yuma County, Arizona and Honolulu County, Hawaii. With subsequent re-authorization and the introduction of ethnicity and language (not just race) to the criteria, more areas were captured, but the overall effect was to leave the South under the yoke of the law.

Section 5 is the application of Section 4. Any jurisdiction captured by these statistical tests must first get clearance and approval from either the Justice Department (the Attorney General must sign off on the proposal) or from the District Court in DC. States or jurisdictions can opt-out of coverage if they can prove that there has been no discriminatory actions AND EFFECTS in the past ten years. They must prove this to the DC District Court. In fact, many jurisdictions have been granted the opt-out in the past. As recently as March 2013, ten towns in New Hampshire successfully opted out. There is also a “opt in” triggering mechanism which brings previously uncovered jurisdictions under Section 5. This was designed to weed out alleged pockets of discrimination. As a result, the entire states of New Mexico and Arkansas are now covered as well as Los Angeles County, Escambia County in Florida, Thurston County in Nebraska, Buffalo County and Charles Mix County in South Dakota as well as Chattanooga Township in Tennessee.

What the Supreme Court basically said was that Section 4- the criteria used to determine covered jurisdictions- was out of date and addressed the reality of 1964 or the reality of the years the law was reauthorized, and not based on current statistical reality. For example, there is ample evidence to prove that minority voting rates and registration rates in some covered areas are actually higher than those in non-covered areas. During oral arguments, they stressed the reality of minority voting rates in recent elections as being higher in states like Alabama and Mississippi than they were in Massachusetts or Michigan. Also, in the case of Voter ID laws, both Georgia and Mississippi have comparable minority populations as a percentage of the overall population. Georgia has a photo ID requirement; Mississippi does not (South Carolina was recently blocked from enforcing their law by Holder). However, minority registration and voter turnout is actually higher in Georgia than it is in Mississippi. Likewise, regardless of the minority population in any political subdivision, Georgia has more elected black officials than Mississippi. Statistically speaking, one can conclude that the voter ID law in Georgia has had a significant POSITIVE effect on minority voting rights- they register more, they vote more, they are elected more. Yet, Georgia needed clearance and received it from the Bush Justice Department, yet Holder blocks a similar law in South Carolina and, one assumes, would in Mississippi if they enacted one. Also, Indiana, a non-covered jurisdiction, was one of the first to enact a voter ID law which they enforced. Being non-covered, they needed NO clearance from the federal government. This assumes that because of the statistical analysis applied under Section 4, there is no voting discrimination whatsoever in Indiana and that there never was any. Racial discrimination does not know geographical boundaries, but the law as written suggests otherwise. While it may certainly be true that the South was the worst transgressor in 1964, that is not the case today. Is the South the pinnacle of voting rights in 2013? Certainly not, but neither are uncovered areas like New York state, Oklahoma or any other state for that matter. That is why the Court said that Congress is free to devise a new statistical formula to reflect the reality of today- not 1964, not 1970, not 1975, 1982, or even 2006- the years the law was reauthorized. Because Congress did not want to revisit the potentially contentious issue, in 2006 they reauthorized the law for 25 years. If the Supreme Court did not intervene today, the next opportunity to change the law would have been in 2031. Are we to hold ANY state in 2025, for example, to the statistical formula of 1965?

Things can change drastically in a short period of time. Congress noted that from 1965 to 1982- 17 short years- the voting landscape had changed dramatically for the better for minorities everywhere. More were registering, voting and being elected. Yet, they reauthorized the law and its formula because there was still, admittedly, work to be done. But, the fact is that the coverage formula is designed to confirm a set of assumptions and the biggest of those assumptions is that the South is a hotbed of racism when it comes to voting. Just looking at the number of DOJ or District Court objections to voting law changes submitted from covered jurisdictions, the percentage has declined over the life of the law. However, change administrations and one would think, given the number of objections under Holder, there is some groundswell of racist voting laws coming into vogue.

Even the statistical criteria used has to be questioned. For example, if in any jurisdiction less than 50% of the voting age population is not registered to vote, there is the assumption of racial animus and some bar to their registration. There are many factors which affect a person’s decision whether to register to vote, or not to vote, and many of them are not racially based. Another criteria used is the number of federal actions against a jurisdiction regardless of the accuracy or legitimacy of those actions. Also, whether federal overseers are required is a criteria. Folks, if you keep sending federal officials to the same place, you will naturally capture those jurisdictions. To show the silliness of this, why were no officials sent to Philadelphia when blacks stood outside polling places with weapons? Surely, this was an intimidation tactic straight out of the 1960s more in line with the actions of George Wallace or Lester Maddox.

In fact, its a damned if you do, damned if you don”t situation. The more liberal white commentators and blacks will assert that the South has simply changed tactics. Gone are the days of ax handle wielding Governors and sheriffs. They’ve been replaced by clever politicians and lawyers who foist stealth Jim Crow laws upon an unsuspecting minority population. When you think about it, they are the true racists for assuming that your average black lacks the means to obtain a photo ID or know where to vote. Therefore, as Ginsburg argued, there will always be a need for a Section 5 and a Section 4. In fact, Roberts wrote that as far as nationwide bans on certain voting practices, the law does not afoul of the Constitution. But, he goes a step further and acknowledges the success of Section 5 and lets it be known that if Congress fixes (i.e. updates) Section 4, then even Section 5- the pre-clearance requirements- would likely pass constitutional muster. Although not explicitly stated, it is inferred. Thomas, realizing this, argued that even Section 5 would be and should be unconstitutional. Ginsburg’s dissenting argument (joined by the other liberals) is that the deterrent effect on restricting voting rights inherent in Section 5 is what causes covered jurisdictions to obey. In her view, remove that deterrent and the floodgates will be opened to wanton trampling of minority voting rights. Thomas rightfully argues that an open-ended deterrent such as this one- a scheme that interferes in state’s rights- would be unconstitutional. Furthermore, Congress in 1965 and with every subsequent re-authorization never intended for it to be open ended. That is why they “sunsetted” certain portions which, in practical terms, resulted in a never-ending sunset.

And unfortunately, Sections 4 and 5 run counter to every notion of “justice.” We do not indict an entire family because one family member committed a crime. We do not triple everyone’s water bill in the town because Joe up the street is delinquent on his. And so on. Nor should we indict an entire state because a town in Alabama changed its school board district lines nor do we indict an entire large geographical swath of the country because 50 years ago there was discrimination. Most of all, we do not punish our children for the sins of their parents. As the government asserted in their briefs and during oral argument, the entire scheme is reverse engineered. This reverse engineering simply punishes primarily the South for something that happened 150 years ago and whose residual stain was addressed and corrected starting 50 years ago. It is time for the civil rights activist community and Obama and his Justice Department to stop fighting the Civil War and acting like Reconstruction Republicans.

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