Why Do We Still Have the Voting Rights Act?

The New York Times‘ Linda Greenhouse has a really interesting piece today that tries to draw people’s attention to another case, Shelby County, Alabama v. Holder,  that challenges the constitutionality of Section 5 of the Voting Rights Act – the most successful civil rights law in history – that is likely to come before the Supreme Court.

Here’s the most relevant portion, for our purposes:

Section 5 of the Voting Rights Act is, indisputably, an unusual piece of legislation. It does not apply, as the rest of the law does, to the whole country. Rather, it requires nine southern states and parts of another (40 of North Carolina’s 100 counties) to submit any change in voting procedure, from redistricting an entire state to moving a single polling place from one location to another, for “preclearance” by the Department of Justice or a three-judge federal court in Washington.

Congress’s point in 1965 was that, given their history, these “covered jurisdictions” could be expected to manipulate even the tiniest details to keep black voters from the polls. Critics of the Voting Rights Act – and Chief Justice Roberts has been one for a long time, as was his mentor and predecessor, Chief Justice William H. Rehnquist – see the heavy hand of the federal government weighing on a region where progress in race relations and black political participation over the past 40 years is indisputable.

Indisputable but not yet sufficient, in the judgment of Congress, which held 21 hearings on whether to reauthorize Section 5 before voting to do so in 2006. Both houses of Congress were then under pre-Tea Party Republican control. The vote in the House was 390 to 33, and in the Senate 98 to 0.

The constitutional basis for the reauthorization, which President George W. Bush signed, was Congress’s power to enforce, “by appropriate legislation,” the 15th Amendment’s protection against denying or abridging the right to vote “on account of race, color, or previous condition of servitude.” The question now, as it appeared to be two years ago, is how much deference the courts should give to the congressional judgment that a particular piece of vote-protective legislation is “appropriate.” (my emphasis added)

The first section I emphasized is a point that I find often gets lost in discussions about the Voting Rights Act. In 1965, Congress knew that there had to be teeth to the law otherwise its passage would just be symbolic. History had proven time and time again that the federal government would have to be prepared to protect and defend the rights of all its citizens.

Here it’s important to remember that previous Congresses passed a number of laws intended to enfranchise African Americans and protect their voting rights nearly a century before the VRA was passed, including the 14th and 15th Amendments, the Civil Rights Act of 1866, and the Enforcement Acts. They didn’t work.

It was clear by 1965 that if people wanted to disenfranchise minority voters, they would. Section 5 is the mechanism that prevents that from happening. And the provision is temporary because Congress understood that at some point Section 5 oversight would become unnecessary and burdensome. Subsequent Congresses have to demonstrate that the provision is still necessary.

And so the question is: Do some jurisdictions still try to disenfranchise minority voters to such a degree that the federal government must still act as a check?

In 2006, Congress said yes. And it said yes because, as Greenhouse notes, it held 21 hearings, heard from over 50 expert witnesses, and collected over 17,000 pages of testimony that documented the continued need for Section 5 and the other expiring provisions.

That testimony included a series of reports that documented extensive voting discrimination in every single state covered by Section 5 and the other two temporary provisions since the VRA was last reauthorized in 1982 that was commissioned by a coalition of civil rights groups that includes The Leadership Conference on Civil and Human Rights.

Let’s take a look at the Alabama report, the state where the constitutional challenge that Greenhouse is discussing originated:

Since 1982, Section 5 has had a significant impact on the electoral process in Alabama. As noted above, there have been objections to 46 Section 5 submissions. In addition, Section 5 prevented an additional 181 voting changes from being implemented through the more information request (“MIR”) process: after the Department of Justice issued a MIR letter regarding a change or changes that had been submitted, the submitting Alabama jurisdictions formally withdrew the change, adopted a new change which superceded the prior change, or did not respond to the letter. This was the third highest number of changes blocked by MIRs in any state. In addition, there were 22 successful Section 5 enforcement actions. This is where the Department of Justice or private plaintiffs filed a suit alleging that a voting change had not been submitted for Section 5 preclearance. This is the second highest state total.

So not only did the federal government block discriminatory changes in jurisdictions all over the state of Alabama, but more often than not a mere question from the federal government about a proposed change was enough to get a jurisdiction to go back and do better. If there had been no Section 5, it is reasonable to assume that a significant amount discrimination would have occurred.

Reasonable people can disagree about how much federal involvement is too much federal involvement, but it is simply true that, in the absence of Section 5, the federal government would have a lot less leverage to make jurisdictions act right – and minorities’ voting rights would surely be at the mercy of states and localities with a history of discrimination.

Congress did what it was supposed to do and investigated the degree to which voting discrimination against minorities still occurs and made the decision that it still occurred often enough that Section 5 is still necessary.  As Greenhouse suggests in that second portion I emphasized, that should be sufficient enough for the Supreme Court to leave the law intact and to do otherwise undermines the role of Congress in making laws.