Today, in Washington, Justice Department lawyers will tell the Supreme Court that the South is still so permeated with racism that it cannot be trusted to run its elections without prior approval -- from Justice Department lawyers. On those dubious grounds, they will urge the Court to uphold Section 5 of the LBJ-era Voting rights Act -- a "temporary/emergency" provision that is now 44 years old.
The case is Northwest Austin Municipal Utility District Number One v.Holder. Lawyers for the district, population about 3,500, will argue that Congress's 2006 renewal of Section 5 was unconstitutional; and if the justices base their decision purely on the law and the applicable facts, they will agree. But race is the eternal third rail of politics in Washington, and the reaction to a finding that any portion of the Voting rights Act is unconstitutional would be so fierce that the Court may shy away from doing what it should.
The 1965 Voting rights Act contains two important, but distinctly different, provisions. Section 2 prohibits the denial of voting rights based on "race or color." It's a permanent, nationwide provision. Section 5, however, was supposedly a temporary measure that applied only to a small number of states (most of them in the South). It provided that, if those covered states wanted to enact any law that affected voting in any way, they would have to get approval from the Justice Department's Civil rights Division (or a federal court in Washington, D.C.) before the law could take effect. Initially in force for five years, Section 5 was renewed in 1970, 1975, 1982 and then, in 2006, for another 25 years.
There's no question that Section 5 was legal and necessary in 1965, a time of fire hoses, police dogs, and bullhorns. Some state and local governments were still systematically trying to prevent blacks from voting, and they were creative in devising new ways to discriminate. Section 5 effectively prevented these states and localities from passing new legislation intended to get around federal law and court orders.
To identify jurisdictions that would need to get their laws pre-approved, Congress designed a formula: The jurisdiction must have had a "test or device" (like a literacy test, or an examination to certify "good moral character") that denied voting rights, and have had less than 50 percent registration or turnout in the 1964 election. As Section 5 was successively renewed, the latter requirement was updated to reflect registration and turnout rates in the 1968 and 1972 elections, but it has not been updated since.
This means that the nine fully covered states, and certain specified localities in seven other states, still labor under strict pre-approval requirements based on decades-old voting data. In 2006 Congress refused to update the formula to reflect current registration and turnout data. If it had, almost none of these jurisdictions would have been covered. Turnout of black voters equals or surpasses that of white voters in many of the covered states, clear evidence that the "temporary/emergency" measure is no longer needed and the widespread discrimination of 1965 is long gone.
Race relations have changed dramatically in the last two generations, especially in the South. In 1965 black elected officials were virtually unknown in the covered states; today they number in the thousands. In covered states such as Alabama, Florida, Georgia, Louisiana, Mississippi, and South Carolina, 31 to 45 percent of Democratic state legislators are black. Of the ten states with the largest number of black elected officials in 2001, eight -- Mississippi, Alabama, Louisiana, Georgia, South Carolina, North Carolina, Texas, and Michigan -- are covered fully or partly under Section 5.
Over the years, objections to state election-law changes have dwindled. The Civil rights Division receives thousands of submissions -- such as measures to open new polling places -- every year. Since 1965, the division has objected to only 1 percent of all submissions. In the past ten years, the objections have run about 0.2 percent.
Such a low rate can hardly justify continuing the extensive intrusion into a state's lawmaking ability, particularly when you consider the dubiousness of many of the division's objections: In case after case, courts have overturned the positions taken by the Civil rights Division.
What makes the situation even worse is that Section 5 reverses the usual standard that requires the federal government to prove discrimination. Instead, the submitting jurisdiction must prove that its proposed change would not have a discriminatory effect. That's a very tough standard that can be made even tougher by opposition from partisan career lawyers at the Civil rights Division. Too often they use Section 5 to try to stop laws (for example, ones requiring voters to show ID) that they find politically objectionable, while ignoring applicable legal standards. Most covered jurisdictions don't have the resources to fight the Civil rights Division, even when it is clearly in the wrong.
That is why organizations that serve minority groups love Section 5. Unlike with Section 2, they don't have to prove a case in court to stop redistricting plans or other legislation they don't like; they just call their friends and former colleagues at the Civil rights Division and tell them to object. More than one court decision has noted the embarrassing and highly unethical coordination between the Civil rights Division and such outside groups.
Based on any reasonable statistical measure, the difference in voter participation between covered and uncovered states has disappeared. The "legislative record" developed by Congress in 2006 deliberately stayed away from exploring the differences in minority office-holding rates and voter turnout between covered and noncovered states -- because doing so would have shown there was no basis for extending the law. Even the relatively small number of voting-discrimination cases filed under Section 2 show the exact opposite of what the proponents of Section 5 would like: More Section 2 cases are filed in states that are not covered under Section 5.
No one can truthfully assert that state governments in Virginia and Georgia are still racist and full of defiant government officials, particularly when compared with noncovered neighboring states such as Pennsylvania and Tennessee. There is no difference that justifies such an intrusive and extraordinary law.
Given all these developments, it should be easy for the Supreme Court to make the right decision on this case. A renewal based on 40-year-old evidence that studiously ignored seismic changes in our society, elections, and democratic institutions should not stand.
But, afraid of being labeled racist, a cowardly Congress renewed Section 5 just three years ago. Let's hope the justices have the courage to do what Congress did not: consider the applicable facts and law, and do the right thing.
Hans A. von Spakovsky is a visiting legal scholar at the Heritage Foundation. He is also a former commissioner on the Federal Election Commission and counsel to the assistant attorney general for civil rights at the Department of Justice.
First Appeared in National Review Online