Articles on the Voting Rights Act are increasingly being filed in the “obituary” section, even though it’s less than 50 years old. Last week, a U.S. Court of Appeals decision ruled against Shelby County, Ala., which challenged the constitutionality of VRA’s Section 5. A three-judge panel ruled 2-1 that it was still constitutional, but the dissenting judge, Senior Circuit Judge Stephen F. Williams, asked some tough questions that will need to be resolved before the Supreme Court inevitably looks at it again (In 2009, SCOTUS punted on this issue, but expressed serious skepticism about Section 5’s vitality.) Wrote Judge Williams in his dissent:
*Why should voter ID laws from South Carolina and Texas be judged by different criteria … from those governing Indiana? A glimpse at the charts shows that Indiana ranks “worse” than South Carolina and Texas in registration and voting rates, as well as in black elected officials. This distinction in evaluating the different states’ policies is rational? *
South Carolina and Texas are “covered jurisdictions” under Section 5, while Indiana, which has a worse voting record, is not. As Williams pointed out, none of those three states are among the top ten worst offenders on voting rights. So the coverage formula needs to be reconsidered, Williams concluded. The coverage formula of Section 5 is the ankle bracelet for Southern states and counties (and a few Northern counties) that have been placed on house arrest for repeated voting rights violations, mostly throughout America’s Jim Crow era. States like Alabama, Texas and South Carolina want courts to take that ankle bracelet off.
While those states claim they are no longer running errands for Jim Crow, Section 5 is set up to ensure that they never go back to doing it. How Section 5 works is that if a covered state or county wants to make election law changes, it needs pre-clearance from the Department of Justice or federal courts. To earn pre-clearance, the covered jurisdiction must prove that the law change won’t have “the purpose … nor the effect,” of racial discrimination. That’s important: It’s not enough to say you don’t intend to disenfranchise black or Latino voters; you must assure that racial disenfranchisement doesn’t become an unintended consequence.
In short, Section 5 is a precautionary principle agent. It forces certain jurisdictions to thoroughly think through voting legislation before implementation by proving first that it won’t harm, as opposed to allowing implementation first, and then dealing with any harm after it’s already been done. It prioritizes permission over forgiveness and recklessness, and yes, in some ways that limits some states’ and counties’ discretion, but our lesson learned from the 20th century was that left to their own discretion some states and counties will be reckless with voting rights and won’t even ask for forgiveness.
But Williams’ beef isn’t with Section 5, but rather who it’s applied to. If it’s true that some non-covered states are worse for voters of color than some covered states, then that’s problematic. If SCOTUS also finds it problematic, as they’ve already indicated they do, then that could be Section 5’s death knell. As Jeffrey Toobin observed in The New Yorker, “that melancholy observation led Williams to conclude that the Voting Rights Act should not apply anywhere anymore.”
Williams could have concluded that Section 5 coverage formula needed to be expanded. Someone with more Voting Rights Act history expertise than me can answer why Congress never expanded the range to include more states and counties. But Williams went the opposite way.
It would be dishonest to disregard progress made on voting matters, even in the South where the registration and turnout of voters of color has increased tenfold in some states since the pre-VRA era. There are certainly far more black and Latino elected officials than pre-1965, including an African American president and attorney general.
But we can’t act like there aren’t still voting problems with racial implications. Voter caging and purging are ever-morphing demons and felony disenfranchisement continues to strip hundreds of thousands of African Americans of their voting privileges, especially in Florida, which somehow was never covered by Section 5, save for five counties.
Then there’s the issue of voter dilution, where always controversial gerrymandering often attempts to place people of color in racially segregated voting districts, which on one hand might help urban voters elect candidates who share their skin color, and hopefully their best interests, but on the other hand also often secures suburbs and rural areas for white and Republican candidates. Section 5 is used often to protect “minority safe” districts, ensuring black and Latino Americans are represented in Congress. Depending on whether you think that’s still a good thing, or a needed thing, redistricting is either the reason Section 5 is still needed or why it should be abolished.
U.S. Commission on Civil Rights vice-chairwoman Abigail Thernstrom has spoken out often on this, in her books “Whose Votes Count?” and “Voting Rights and Wrongs,” and just recently in the Wall Street Journal, where she accused civil rights activists of fighting for Section 5 in the pure interest of protecting minority seats. Said Thernstrom: “They know the clock is ticking. If you don’t have black ghettos—if 50% of the black population has moved to the suburbs, which is the accurate figure—you’ve got a problem creating a safe black seat …You’ve got Asians. You’ve got Hispanics. And none of them are residentially clustered enough so that you can draw neat little lines around them and create reserved seats for members of minority groups. Residential integration is not in the interest of voting rights advocates.”
While not entirely wrong — Hope VI is doing enough to change present racial residential dynamics before we even get to the suburbs — it’s obviously not that simple. Who gets to draw redistricting lines matters. But the fact that we’re already in the era where white babies account for less than half of all births shows that rethinking redistricting is at dawn.
But those babies haven’t grown up yet, and despite the integration we see today we’ve still not seen a statewide-elected African American in South Carolina, Louisiana or Mississippi. And states are passing photo voter ID laws that could have a discriminatory effect on millions of voters of color. Some of those states — Texas and South Carolina — can be challenged, while others — Mississippi and Virginia — certainly will be, thanks to Section 5. But other states that have passed restrictive voter laws — Pennsylvania, Tennessee, Kansas, Florida, Wisconsin — aren’t covered by Section 5, and why shouldn’t they be?
It was just 2008 that a county in Pennsylvania attempted to disenfranchise black college students. In Florida and Colorado, state officials are browsing lists to purge voters they suspect are “non-citizens.” Tea Party activists around the country are training poll watchers to make voters feel like the police are following them. These are reasons to not only let Section 5 live, but to clone it.