In reaction to the U.S. Supreme Court's Shelby County v. Holder decision last June, Rep. Jim Sensenbrenner (R., Wis.) and Sen. Patrick Leahy (D., Vt.) have introduced the Voting Rights Amendment Act of 2014. The stated purpose is to prevent racial discrimination. But what it would really do is force racial gerrymandering, make race the predominant factor in the election process, and advance the partisan interests of one political party.
Before Shelby County, Section 5 of the Voting Rights Act required certain states to get "preclearance" from the federal government before making any voting changes. But the Supreme Court ruled that the formula to determine which jurisdictions were covered was unconstitutional because it was based on 40-year-old turnout data that did not reflect contemporary conditions. Census Bureau data show that black-voter turnout is on a par with or exceeds that of white voters in many of the formerly covered states and is higher than the rest of the country. We simply don't need Section 5 anymore.
The Supreme Court's ruling did not affect other provisions of the Voting Rights Act that protect voters, and the Justice Department and civil-rights groups have been aggressively using them since Shelby County. All that's different now is that they must prove their case—as they must under any other civil-rights law.
In particular there is Section 2, a permanent, nationwide ban on racial discrimination in voting. Section 2 bans not just intentional discrimination: It was expanded in 1982 to prohibit discriminatory "results" as well.
Further, Section 3 of the act allows a court to impose a preclearance requirement in a particular jurisdiction where a court determines that there is intentional misconduct, a much more reasonable and fair provision than the blanket requirements of Section 5.
But the bill would change Section 3 from requiring a showing of intentional discrimination to allowing other violations of the Voting Rights Act—most of which require only a showing of "disparate impact"—to count toward triggering preclearance coverage.
The Constitution, however, prohibits only intentional discrimination, and so that is the only reason Congress can impose the extraordinary preclearance regime. Obviously, showing that a government in one case has merely "violated" the statistical disparate impact test does not show that the government is likely to engage in unconstitutional violations. Once again, Congress is exceeding its constitutional bounds.
What's more, under the proposed bill "extremely low minority turnout" would be considered a "voting rights violation" that would count toward triggering preclearance, even if a jurisdiction engages in no discriminatory conduct. While low turnout might have been a plausible indicator of racial disenfranchisement in 1964, it is not plausible today.
Even worse, under the bill, low turnout by white voters would not count as a violation, even if they are a minority of voters in the district. If adopted, this would mark the first time that the Voting Rights Act actually excluded some Americans from protection based on their race.
Other violations triggering coverage would include "objections" filed by the U.S. attorney general, which don't require any finding of intentional discrimination. A discriminatory effect based on statistical disparity is sufficient—"disparate impact" once again.
This is especially galling given the many past court decisions castigating the Justice Department for filing unwarranted objections under Section 5. In 2012, a federal court overturned Attorney General Eric Holder's objection to South Carolina's voter ID law—but it cost the state $3.5 million to beat the Justice Department. Most jurisdictions don't have the resources to fight the department.
Because tallying up rulings against a jurisdiction will trigger coverage, Mr. Holder and outside groups will have every incentive to file as many objections as possible and manufacture vexatious litigation. The triggers are so low (depending on the size of the jurisdiction, ranging from five to three to one so-called "voting-rights violations") that just about any place in the U.S. could be targeted.
Worse still, being placed into federal receivership will encourage racial and political gerrymanders. The 2006 changes to Section 5 imposed a "quota floor" for minority political success, prohibiting changes that "diminish the ability" of racial minorities to elect their "candidate of choice." This not only grants constitutionally problematic, racially preferential treatment to minorities, it skews the political playing field by preferring Democratic Party candidates.
For example, in 2012 a Texas court protected the district of white Democrat Rep. Lloyd Doggett, even though whites constitute the vast majority of voters in his district. It interpreted Section 5 to prohibit diminishing the electoral fortunes of white Democrats because they receive the support of most minority voters.
The bill also imposes burdensome and impractical information-disclosure requirements on local officials, such as providing demographic analysis of every precinct. Finally, the bill creates a novel legal standard for injunctive relief unknown in modern jurisprudence, inserting factors such as a "hardship" determination that favor plaintiffs' lawyers and virtually guarantee an injunction.
It is 2014, not 1965. This bill really isn't about the Shelby County decision. It is about having the federal government manipulate election rules to propagate racial gerrymandering and guarantee success for Democratic candidates. It would make race a predominant issue in election administration, instead of what its goal should be—making sure every eligible voter is able to vote, regardless of race.
- Hans von Spakovsky is a senior legal fellow at the Heritage Foundation.
Editor’s Note: Michael Carvin also contributed to this commentary
Originally appeared in the Wall Street Journal