February 27, 2013

February 27, 2013 | Commentary on Elections

Voting Rights Act's 'Preclearance' Was Meant to be Temporary

The Supreme Court should strike down Section 5, which was a temporary, emergency provision that was only supposed to last five years. The terrible conditions that justified Section 5 in 1965 do not exist today.

The right to vote of black Americans is not at stake. The heart of the Voting Rights Act is Section 2, which outlaws racial discrimination in voting. Section 2 is permanent and applies nationwide.

Section 5 was designed to stop discrimination by putting covered states into the equivalent of federal receivership. It requires covered states to get pre-approval from the federal government before they can make any changes in their voting laws. It was only a supplement to the main protection of Section 2

[See a collection of political cartoons on Congress.]

But when the Supreme Court upheld Section 5's constitutionality in 1966, it acknowledged that Section 5 was an extraordinary intrusion into state sovereignty unprecedented in our history. It was upheld only because of the dire, "exceptional conditions" and "unique circumstances" that existed then.

As Justice Clarence Thomas noted in 2009 in another case, the "lack of sufficient evidence that the covered jurisdictions currently engage in the type of discrimination that underlay the enactment of Section 5 undermines any basis for retaining it."

The most visible evidence of this is the failure of Congress in 2006 to update the formula that triggers coverage under Section 5. There are nine states and parts of seven other states covered today based on low registration and turnout in the 1964, 1968, and 1972 elections.

Thus, jurisdictions are covered today based on over 40-year-old data. Yet the disparity in the registration and turnout of black voters compared to white voters has virtually disappeared and in some covered states actually exceeds that of whites. They would not be covered today based on current registration and turnout levels.

Most importantly, as the Supreme Court itself previously acknowledged, "[t]hings have changed in the South … Blatantly discriminatory evasions of federal decrees are rare" and "minority candidates hold office at unprecedented levels."

The systematic, official discrimination that justified Section 5 has disappeared. The isolated cases of discrimination that still occur can be remedied by Section 2. As Justice Clarence Thomas has said, "[a]dmitting that a prophylactic law as broad as Section 5 is no longer constitutionally justified based on current evidence …is not a sign of defeat. It is an acknowledgment of victory."

-Hans von Spakovsky is a senior legal fellow at the Heritage Foundation and manager of its Civil Justice Reform Initiative. He is a former FEC commissioner and Justice Department lawyer.

About the Author

Hans A. von Spakovsky Manager, Election Law Reform Initiative and Senior Legal Fellow
Edwin Meese III Center for Legal and Judicial Studies

First appeared in US News & World Report's "Debate Club."