May 18, 2009 | Commentary on Legal Issues
On April 29, Justice Department lawyers told 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 No. 1 v. Holder. Lawyers for the district, population about 3,500, will argue that Congress' 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 firehoses, 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) 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 10 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 10 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.
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. 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 Clarion Ledger (Jackson, MS)