"Fixing" the Voting Rights Act

In response to the Supreme Court’s decision in Shelby County, Alabama vs. Holder, Rep. Sensenbrenner and Senator Leahy have introduced legislation which they hope will “correct” the infirmities of the original Voting Rights Act last updated in 2006.  To recap, at issue in Shelby County was the formula used to determine which states or political subdivisions were to covered under Section 5.  That section is the one where any election law change must be approved by either a court in DC or the Attorney General.  The Court basically said (correctly) that the law was using outdated criteria that was more reflective of the South in 1964 than in 2010.  In fact, they acknowledged the tremendous changes in the South over that time frame.  The Left portrays this decision as the Roberts Court as being against civil rights, but nowhere in that decision is the constitutionality of the VRA questioned, just the formulas used to determine covered jurisdictions.

Under the old formula, nine states are covered- seven of them in the South- and parts of other states under Section 5.  If an entire state is covered, then any statewide change in their election laws and every political subdivision within that state from large city to elected water and school boards must receive approval from the federal government before those changes can go into effect.  Certainly, there may have been a need for such a draconian action in the past given the pervasiveness of discrimination in voting practices.  However, times have changed.  Although the Left would have you believe otherwise, there are no Jim Crow laws or stealth poll taxes.  It would appear that it is the Left who has not opened their eyes and realized we live in 2014, not 1964.  It is they who are the greatest impediment to the realization of King’s “dream” of a color-blind nation.

The more important point to be taken away is what would qualify as a “violation.”  The law, to the dismay of liberals, would specifically exclude voter ID requirements.  This was left out for good reason: it would run afoul of constitutional law and recent Supreme Court jurisprudence which upheld voter ID laws in the case out of Indiana.  Notice that Texas passed a voter ID law that is being challenged by Holder’s Justice Department under the VRA.  The difference is that Indiana is not a Section 5 covered state while Texas is one.  However, please do not insult the intelligence of anyone by making the assumption that (which the law implicitly does) Texas is more “racist” than Indiana, or that no racism exists in Indiana.  Therefore, this specific exclusion of voter ID laws will be a point of contention as covered states strive for the same voting integrity allowed in 41 other states with nary a word from the federal government.

No one denies that there are still pockets of racism and that this is sometimes manifested in voting laws.  But, the VRA holds entire states responsible for the actions of a few bad local actors.  To make matters worse, these “bad actors” are not intrinsic to the South.  One need only look at where the majority of African-American congressional representatives hail from.  Likewise, with Hispanic representatives- since language discrimination is also included under the VRA- a majority of them hail from states with large Hispanic populations.  Arizona is a covered state, yet they have numerous state legislators and two congressmen of Hispanic descent not to mention several high office state elected officials.  Covered areas of California have also sent Hispanic people to Congress.  Ironically, some of this is due to racially gerrymandered districts which are somehow ironically allowed under the VRA.

The problem, as mentioned, is the definition of a violation.  To some, voter IDs are a stealth poll tax and inhibit the poor and minorities from voting while to others they are commonsense measures to insure the integrity of elections and no more onerous than any similar law in any other country.  The Left, and one assumes an activist Attorney General like Eric Holder who sees race in everything except black guys holding weapons outside polling places in Philadelphia, would simply expand the list of potential violations in an endless chorus of court actions.

For example:

  1. Today, the Left believes requiring people who vote in-person to do so in their home precinct is a voting rights violation;
  2. Today, the Left believes that not allowing registration in high school, or requiring that a person actually is 18 before they register is a voting rights violation;
  3. Today, the Left believes that the period to cast a vote before Election Day should be some open-ended period of time and restrictions are a voting rights violation;
  4. Today, the Left believes that disallowing Election Day registration is a voting rights violation;
  5. Today, the Left believes that states which have uniform opening times for the polls have committed a voting rights violation.

And the list goes on as this is not all-inclusive.

Another thing to consider is that the federal government is not always right when it comes VRA objections or actions.  From 1969 to the present, there have been 1081 such actions in covered jurisdictions.  Against the states as a whole they number 130.  However, 102 were later withdrawn by the DOJ because they jumped the gun and the discriminatory intent or impact was simply unsubstantiated.  In another 59 cases, the objection was withdrawn because the alleged offender modified the election law change request because of a minor error they had made.  Thus, right off the bat, about 15% of all the cases are dubious.  Of the 28 cases that went to court seeking a declaratory judgment, it is the state or jurisdiction that has prevailed 15 of the 28 times.

Furthermore, the new law, like the old one, places equal emphasis on discriminatory intent and discriminatory impact.  Many times the election law change may have absolutely no discriminatory intent but because of a quirk of demographics, it may have an impact.  The result is costly, time-consuming litigation.  A perfect example is a  2008 action against Penns Grove in New Jersey.  Located in Salem County, they had a law that Latino voters had to use an accredited assistor for those with language difficulties.  The DOJ objected because the county did not allow the voter to use the assistor of their choosing.  This was a commonsense  rule to discourage organized groups from “assisting” language-impaired voters from actually telling a voter how to vote.  Because of this (plus two other complaints in the objection letter), Penns Grove, NJ (pop. 5,150) would become a covered political subdivision under this “new and improved” VRA.

The fact that voter ID requirements are removed from the discussion in the proposed changes to the VRA should be revealed for what they are.  Simply, the liberal Democrats are creating the appearance of moderation and compromise while proposing a law that would ensnare the existing covered states and subdivisions.  In effect, one would have the same old, same old and no “reform” at all.  True reform of the VRA would create tools to more precisely and surgically address true instances of voting racial discrimination on a case-by-case basis instead of assuming that these cases are the results of some policy or beliefs emanating from state capitals.  In the proposed law, the example of Penns Grove,NJ would count as two violations which would also count against the state.  Assuming there were more actions in New Jersey ten years hence, the state itself would fall under the “pre-clearance” requirements.  Racial discrimination in voting litigation is big business and one is a fool to believe that civil rights groups would not tie up any potential change in a voting law anywhere in the United States in the court system with resulting injunctions and trials.

There is nothing inherently wrong with establishing objective statistical criteria and parameters to root out examples of true racial discrimination.  The devil is in the details and in what those parameters are.  One person’s attempt to insure the integrity of the process is another person’s example of discrimination.  One could potentially consider a point system rather than a per-instance system (like the proposed changes) where certain “violations” count more than others.  Requiring pre-approved language assistance, as in the case of Penns Grove, is certainly less discriminatory than moving a polling place three miles away one month before an election.

Before anyone jumps at the proposed law, it needs to be parsed and further reformed.  Naturally, the Democrats will portray this as the GOP being against civil rights reform.  But the mere fact that reform is required gives the GOP a leg up in this discussion.  It is high time the Democratic Party got its head and butt out of the 1960s and move into the new 2010s.  Yes, racial discrimination still exists in the United States 50 years later and yes, sometimes it is manifested in voting laws.  And maybe- just maybe- it may be more apt to be seen in the southern states.  BUT, a law that today starts with the assumption that Alabama or Texas or any other southern state is guilty right off the bat is certainly ignorant of recent reality and is, in fact, more racist than the racism the law purports to root out.  Treating Alabama, for example, differently than Indiana- assuming they pass a voter ID law identical in all respects to that of Indiana- simply because of past actions is denial of due process en masse at the very least.  A law that starts out and has the practical effect of assuming guilt is no law worthy of passage.