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Voting Rights and the Beneficiaries of Selma

Wednesday, April 22, 2009

The judiciary is following the nation’s growing sentiment that race and ethnicity should play a smaller role in our public policies. Here’s how Congress can follow.

By the end of the 2008–2009 Supreme Court term, the justices will have decided the scope and constitutionality of two key provisions of the Voting Rights Act. The decisions will effect how thousands of election districts are redrawn after the 2010 census and invariably shape any future legislation that seeks to expand Congress’s constitutional enforcement power over state and local jurisdictions.

Furthermore, the significance of these cases goes beyond their core redistricting and federalism issues. In the wake of President Obama’s historic election, the high court’s acceptance of both cases reflects how the judiciary appears to be following the nation’s growing sentiment that race and ethnicity should play an ever smaller role in our public policies. 

The Voting Rights Act of 1965 has eighteen sections and approaches six thousand words in length, yet its goal was a simple one: ending the official barriers to voting by blacks in southern jurisdictions. Sections 4 and 5 were designed to temporarily target specific areas of the country where barriers to black voting were the most pernicious. Section 2 was designed to permanently apply to the entire country and forbids any state or jurisdiction from discriminating on the basis of race, color, or membership in one of the language minority groups.

The Voting Rights Act Section 2 case, Bartlett v. Strickland, was handed down last month. In a fractured 5–4 opinion, the justices ruled that states, counties, cities, and the like are not required during redistricting to create a safe minority-majority voting district when a racial minority group is less than 50 percent of the population. (Going forward, when redistricting takes place in 2012, a legislative body will not be required to draw a minority-majority voting district unless the minority population is 50 percent or greater.) As blacks and Hispanics continue their migration out of inner-city neighborhoods and into multiracial suburbs, it is increasingly difficult to create a traditional, compact district with a 50-percent minority population that is not racially gerrymandered.

The Section 5 case, Northwest Austin Municipal Utility District Number One v. Holder, will be argued on April 29, with a decision expected in late June. Unlike the issues resolved in Bartlett, Northwest Austin entails a challenge to the constitutionality of Section 5.

Some background on this provision is in order. Section 5 requires nine states—most of which are in the Deep South—and parts of seven others to seek permission from Washington before any changes to voting procedures and policies can be made. Redistricting, moving a polling location, or even extending hours for early voting must be “precleared” by the U.S. attorney general or the D.C. courts. Because of the never-ending gamesmanship used by southern election officials and others to disenfranchise blacks in 1965, Congress wisely and effectively targeted these states and jurisdictions for this extraordinary coverage.

As blacks and Hispanics continue their migration into multiracial suburbs, it is increasingly difficult to create a traditional, compact district with a 50-percent minority population that is not racially gerrymandered.

This kind of law is unprecedented in our history. First, it applies to only part of the country. Second, no other statute has ever required a state or one of its jurisdictions to ask the federal government for approval before a locally enacted law can go into effect. Nonetheless, this preclearance regime was intended to be a temporary provision and was scheduled to expire in 1970, but it has been reauthorized another three times, most recently in 2006 until 2031. Congress continued to reauthorize the act because it believed that the covered jurisdictions could not be trusted to protect minority voting rights.

As necessary as Section 5 was in 1965, it now has evolved into a partisan racial gerrymandering tool at its worst, and, at its best, a silly, bureaucratic contrivance. The plaintiff in Northwest Austin—a small subdivision of 3,500 people in Travis County, Texas, created in 1985—proves the point. For years, elections for the subdivision board were held in a resident’s garage. But in order to move the election to a more convenient elementary school three blocks away, the board had to get Washington’s approval.

It is no surprise that passions on both sides of this issue run red hot. That the high court could strike down one of the temporary—yet now, landmark—provisions of the Voting Rights Act has mobilized a storm of amicus briefs, from Republican governors and conservative legal foundations on the right to Democratic attorneys general and racial advocacy groups on the left.

There are two questions for the high court to resolve. First, can a political subdivision like the one in Texas seek to “bail out”—or, in effect, escape—from the preclearance provision as the law allows?When the act was originally passed, Congress included a provision that a covered jurisdiction could escape from oversight if it could demonstrate to the courts that its behavior toward minority voters had been exemplary. If a bailout is not allowed, then the second question is, has Congress found sufficient evidence of ongoing discrimination and gamesmanship to justify keeping Section 5 in effect exactly as it was structured in 1965?

Court watchers speculate a number of ways the justices may decide this case. On the one hand, the Austin municipal utility district could lose on both questions. For instance, because it is a subjurisdiction that does not register voters (as does a county or parish) it could be found ineligible to bail out. Then, possibly the justices will rule that Congress found sufficient evidence of ongoing racial problems—such as racially polarized voting—to reauthorize Section 5 exactly as it did the last time, in 1982.

On the other hand, the Court could avoid the question of constitutionality altogether and allow the district (and other subjurisdictions like it) to seek a bailout. That decision, however, will only forestall one the justices will make sooner or later when a county or a state is denied a bailout because it is unable to meet two insurmountable legal hurdles that the Voting Rights Act mandates: the requirement to undertake a review of each election law change made since 1965 by every subjurisdiction within its borders; and the requirement that every subjurisdiction within a state or county be free of any preclearance objections lodged against it for 10 years. So, for example, if a small school district has received an objection from the U.S. attorney general about moving a polling place, the state or county in which it is located is therefore legally forbidden to get out of Section 5 coverage for a 10-year period. Since most states and counties do not have any state constitutional or statutory control over their subjurisdictions’ election changes, this makes bailout effectively impossible.

Finally, the justices could strike down the provision on constitutional grounds, finding that the Jim Crow apparatus that once prevented blacks from registering to vote and participating in elections in the Deep South has, for all intents and purposes, ended and that Section 5 now exceeds Congress’s legislative authority.

In the wake of President Obama’s historic election, the Supreme Court’s acceptance of the case reflects how it appears to be following the nation’s growing sentiment that race should play an ever smaller role in our public policies.

Even if the Court finds Section 5 is unconstitutional, it will not foreclose Congress from modifying the existing act. With increasing frequency, Congress has done exactly that when, for instance, it “overturned” a handful of Supreme Court rulings—most recently in the employment arena with the Lilly Ledbetter Fair Pay Act of 2009, which extended the time an employee could sue an employer for discrimination.

But revamping the Voting Rights Act will not be easy. As Columbia Law School professor Nate Persily remarked about Congress’s refusal to even slightly modify the act in 2006, “if the can of worms that is the basic structure of section 5 had been opened, the political coalition behind the law would have collapsed.” In other words, Congress did not want to make any hard decisions about which states, if any, needed federal oversight. Nevertheless, modernizing the act (as should have been done in 2006) does not have to result in a partisan battle filled with demagoguery and denunciations.

Here is one way: Congress could add a new provision to the Voting Rights Act that allows the federal courts to target a specific jurisdiction for preclearance if that jurisdiction has been sued over a racially discriminatory voting policy or procedure. A “bail in” provision like this is already a part of the act. Known as the “pocket trigger,” it allows a court that has found a constitutional violation of voting rights to require the attorney general to preclear the offender’s voting procedures for an appropriate period of time. Some of the defenders of Section 5 have argued that the pocket trigger mechanism is ineffective because it becomes operative only after a jurisdiction has been found in violation of the law—a long and costly proposition, especially if the plaintiff is an individual or a not-for-profit group. So, instead of allowing a court to bail in a jurisdiction at the end of litigation, Congress should allow for the bail in provision to be an option at the beginning of litigation.

This kind of law is unprecedented in our history. First, it applies to only part of the country. Second, no other statute has ever required a state or one of its jurisdictions to ask the federal government for approval before a locally enacted law can go into effect.

This would allow a court to temporarily place a jurisdiction into Section 5 if it believes, based on a preponderance of evidence, that the jurisdiction is highly likely to be found in violation of a provision of the Voting Rights Act. If the jurisdiction is exonerated in court, then the Section 5 coverage is lifted; however, if it is ultimately found to be in violation, then the temporary coverage can remain in effect for some reasonable period of time, say five years. Of course, a re-engineered Voting Rights Act may not satisfy the concerns of the racial advocacy groups fearful of losing federal protections or the federalism purists fearful of judicial abuse, but it offers a way for Congress to avoid a polarizing battle over which states and counties in 2009 can be expected to act in good faith over civil rights issues, and which ones cannot.

Based on his earlier decisions regarding race-based school admissions policies and racial gerrymandering, it is not unreasonable to predict that Justice Kennedy (along with the other four conservative justices) will determine that Section 5 was not properly constructed to address the problems of racial discrimination in voting today and that it ill serves our nation to keep in place an unconstitutional statute just for political expediency.

Congress can fix this statute if the Supreme Court strikes down Section 5. But bad laws are easier to produce than good laws. Section 5 has evolved from a good law to a bad one because Congress was unwilling to undertake what New York University School of Law professor Richard Pildes said is a “serious—hence difficult—discussion over civil rights policy.”

It is true to most Americans what Eric Holder, our nation’s first African-American attorney general, noted in a speech delivered in Selma, Alabama, at the Bridge Crossing Jubilee last month: “The world that existed on Bloody Sunday is all but unrecognizable to us now. We are all the beneficiaries of Selma.” That Holder was introduced by Peggy Wallace Kennedy, the daughter of the late Alabama Gov. George C. Wallace, makes it especially evident.

Edward Blum is a visiting fellow at the American Enterprise Institute. Prior to joining AEI, he facilitated the legal challenge to dozens of racially gerrymandered voting districts and race-based school admissions and public contracting programs throughout the nation.

FURTHER READING: Blum is the author of The Unintended Consequences of Section 5 of the Voting Rights Act.
On April 22, AEI will hold a panel discussion called "Is the Voting Rights Act Constitutional?” AEI previously had a similar event, "Is Section 5 of the Voting Rights Act Still Necessary?

Image by Darren Wamboldt/The Bergman Group.

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