Times Have Changed: Civil-Rights Era Voting Law Needs Reform

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Although the problem of black disenfranchisement has been largely solved, many southern states still have to submit all voting rules changes for federal approval.  

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President Lyndon Johnson signs the Voting Rights Act of 1965. / Wikimedia Commons

Times change. And many laws that were once essential to help us progress eventually become outdated, counterproductive, and in need of revision, if not repeal.

But by then such laws have often become sacred cows, perpetuated long past their glory days by self-serving politicians, interest-group lobbies, and media nostalgia or bias. Their reach is very hard to restrain unless an unusual opportunity presents itself.

So it is with Section 5 of the iconic Voting Rights Act of 1965, which was initially set to expire in 1970. It requires eight states in the Deep South, plus Alaska and parts of seven other states, to obtain "preclearance" from the U.S. Justice Department (or a slow-moving special court) before making even the minutest change in their voting rules.

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Section 5 played a critical role in ending the disenfranchisement of Southern blacks and breaking the back of American apartheid. But we live in a different America. The very racial progress that Section 5 helped accomplish has arguably made it unnecessary and certainly calls for reducing its intrusion on state powers.

Indeed, many or most of the states and localities covered by Section 5 have become as protective of voting rights as the rest of the country. And Section 2 of the act provides ample authority to deal with residual voting rights violations -- which no doubt still occur -- through the ordinary judicial process.

Efforts to reform Section 5 have nonetheless been beaten back by left-wing Democrats, right-wing Republicans (some of whom benefit from the racial gerrymandering it imposes, while others would prefer its outright elimination on ideological grounds), the civil rights lobby, and its allies in the news media and the Justice Department's Civil Rights Division.

Even as the grave wrongs that justified the drastic Section 5 remedy have receded into the past, Congress has repeatedly extended it, most recently until 2031, without substantially easing the burden imposed on the many covered states and localities with good voting rights records.

Indeed, when Section 5 came up for renewal in 2006, Congress made it even more onerous. For example, Congress overruled a 2003 Supreme Court decision (in Georgia v. Ashcroft) by prohibiting states from replacing any of their existing majority-minority districts -- safe seats for minority politicians -- with districts that would be more racially integrated.

This despite the fact that virtually all black politicians in Georgia had urged the Court to rule as it did in 2003, and despite strong evidence that more-integrated districts would be better both for minority voters and for attaining what Rep. John Lewis (D-Ga.), a civil-rights icon, once called the goal of a community "where we would be able to forget about race and color and see people as people, as human beings, just as citizens."

In part because of such perverse provisions, next year may well present President Obama and Congress with the likelihood of a near-term Supreme Court decision striking Section 5 down in its entirety. (There are no fewer than five challenges to Section 5 now pending in lower federal courts.) And that prospect will, or at least should, provide the president and Congress with a strong incentive to avert a looming constitutional clash by reforming Section 5.

The handwriting has been on the wall since a 2009 decision (in Northwest Austin Municipal Utility District Number 1 v. Holder) in which all nine justices made it clear that Section 5 badly needs revision, with five of them seeming to imply during the oral argument that if Congress does nothing, the Court will strike down the law at its next opportunity. Writing for eight of the justices, Chief Justice John Roberts stressed that: "things have changed in the South," "minority candidates hold office at unprecedented levels," and "the racial gap in voter registration and turnout is lower in the States originally covered by [Section] 5 than it is nationwide."

In other words, the central problem that the provision was adopted to address seems largely solved. Meanwhile, added the eight, Section 5 "imposes current burdens and must be justified by current needs."

The Court avoided deciding whether Section 5 is still constitutional by straining to decide the 2009 case on narrow statutory grounds.

The justices seemed to hope that this brushback pitch would prompt President Obama and Congress to reform Section 5 rather than risk seeing it wiped off the books. But so far they have done nothing, perhaps because no new challenge to Section 5 has yet reached the Court.

Meanwhile, as Rep. Jack Kingston (R-Ga.) once said to the Washington Post, Section 5 continues to require that in covered jurisdictions, "If you move a polling place from the Baptist church to the Methodist church, you've got to go through the Justice Department" (or the special court).

Indeed, the 2009 case got its start when a Texas municipal utility district with no history of voting rights violations bridled at Section 5's requirement that it seek permission before it could move its elections to a more convenient location. The Justice Department fields tens of thousands of preclearance requests each year, often for actions as innocuous as moving a polling site.

And as justices stressed during the 2009 argument, there's no plausible reason now for the law to require, say, Georgia, but not Ohio, to ask the federal government "Mother may I?" for every voting change.

In past cases, the Supreme Court has also criticized the Justice Department's Civil Rights Division for using Section 5 to press covered states and localities to use extreme racial gerrymandering to create safe voting districts for black and Hispanic politicians. This has the side effect of "bleaching" nearby districts and thus delivering them to hard-right Republicans.

This racial gerrymandering undoubtedly helps black and Hispanic politicians win more seats. But it may diminish the legislative clout of black and Hispanic voters, who can safely be ignored by representatives of the more numerous overwhelmingly white districts. Extreme racial gerrymanders also aggravate the ideological polarization that has paralyzed Congress by hurting centrist candidates who seek to appeal to cross-racial coalitions.

In the best-known of the pending cases that could reach the Court, the Justice Department has blocked new voter-ID laws in South Carolina and Texas, claiming that they would disenfranchise many minority voters and are not needed to prevent fraud. But both points are debatable, and the Supreme Court rejected an attack on a similar Indiana law in a 2008 decision authored by now-retired Justice John Paul Stevens, the Court's leading liberal, in part because it's easy to get a valid photo-ID.

Even the prospect of a decision striking down Section 5 may not be enough to bring about the wholesale reform that should be adopted. But the most glaring flaw could readily be fixed, with a little presidential leadership: Congress could and should make it easy for states and localities with clean voting rights records to be exempted from Section 5's coverage. And such a fix, though modest, might persuade the Court to avoid striking down Section 5.

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Stuart Taylor Jr., a contributing editor for National Journal, is teaching a course on the news media and the law at Stanford Law School.

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