Opinion

The Great Debate

The strong case for keeping Section 5

By Morgan Kousser
February 15, 2013

This is part of the Reuters series on the future of the Voting Rights Act’s Section 5, which the Supreme Court may strike down this year. You can read other pieces in the series here.

There are deep ironies in the current case against Section 5 of the Voting Rights Act. Before a 5-4 Republican majority of the Supreme Court opens the door to stronger voter suppression laws by overturning it in Shelby County v. Holder, the justices ‑ and the informed public ‑ should consider how effective Section 5 has been. Highly unusual political conditions made the act’s passage and renewals possible, and there would be almost insuperable difficulty in replacing it now that those conditions have changed.

Since 2009, I have been compiling a comprehensive list of voting rights incidents. (I have also served as an expert witness in such voting rights cases as those challenging the 2011 Texas redistricting laws.) The list now has 4,141 incidents: legal cases brought under Section 2 of the Voting Rights Act; legal cases brought under Section 5 of the act; objections by the Justice Department under Section 5 and “more information requests” issued by the department as part of the Section 5 process, if they resulted in pro-minority changes in election laws; and 14th Amendment cases.

Unpublished, as well as published, cases are included in the statistics below only if they resulted in changes in the election laws that helped minorities. Some are recorded in printed opinions, but many resulted in informal or court-approved settlements. In other instances, merely filing a lawsuit led to the changes in election laws that minority plaintiffs sought. This is a far larger number of incidents than in any database referred to in the Shelby County briefs.

What do these numbers reveal about the central issue that the Supreme Court asked the parties in Shelby County to address: the adequacy of the Section 5 coverage scheme. Section 5 mandates that certain states, counties or townships are barred from changing election laws without the approval of the Justice Department or the District Court of the District of Columbia.

First, 90 percent of the 4,141 incidents and 93.4 percent of the 3,775 “successful” incidents – those that resulted in changes to election law that advanced minorities’ voting rights – took place in the jurisdictions covered by Section 5. This may not be surprising, since 2,368 of the incidents were Section 5 objections or enforcement actions, or “more information” requests. These, by definition, can take place only in covered jurisdictions.

More instructive is the portion of the 1,256 successful Section 2 cases that arose in jurisdictions subject to oversight: 83.3 percent. Section 2 cases can be filed anywhere in the country. The number of successful Section 2 cases is far larger than that in the much-cited database compiled by Ellen Katz, a law professor at of the University of Michigan (which is subsumed in my list), and the proportion from covered jurisdictions is considerably higher than Katz found in published cases. This is because I included many unpublished cases that resulted in settlements, either in-court or out-of-court.

In other words, five-sixths or more of the cases of proven election discrimination from 1957 through 2013 have taken place in jurisdictions subject to Section 5 oversight ‑ which would mean very skillful targeting for any government program.

Many of the discriminating counties harbor repeat offenders. For example, since 1975, violations of the Voting Rights Act have been found in various Shelby County government entities 20 times. So the test case selected by opponents of the Voting Rights Act  to demonstrate that the coverage scheme is outdated and that discrimination is a thing of the past is, in fact, the poster child for Section 5’s effectiveness and the continued need for the VRA.

Current legal arguments against the Voting Rights Act have many such ironic contradictions. On the one hand, the heightened scrutiny required under City of Boerne v. Flores demands that the coverage scheme be precisely “congruent” with the problem of discrimination. On the other hand, leaving some states uncovered by Section 5 is said to violate an implicit guarantee of equality among the states –a guarantee that is apparently thought superior to the Constitution’s explicit guarantee of the equal protection of individual people.

Similarly, the existence of discrimination outside the covered areas is used as an argument for eliminating protections against the far more prevalent discrimination within the covered areas.

Perhaps the most profound irony is that the Supreme Court’s decisions increase or decrease the number of discriminatory incidents, as indexed by successful lawsuits or objections. Recorded incidents are not pure measures of discrimination rather they reflect what counts as discrimination according to the rules set by Congress and the courts.

Favorable legal rulings encourage lawyers to file cases and activists to push the Justice Department to object to changes, while unfavorable rulings tie the hands of the department and discourage lawsuits. Trends in the numbers of events are then used to justify Supreme Court decisions expanding, cutting back or, potentially, overturning the VRA.

Thus, as the graph below shows, there were few Section 5 actions until the 1969 Allen v. Board of Elections case, which applied the Voting Rights Act to changes in election structures, such as shifting from district to at-large elections. Objections then skyrocketed until the 1976 decision in Beer v. U.S., in which the court ruled that only changes that made minorities worse off, not all changes that discriminated against them, violated Section 5. Objections then plummeted.

Key for Graph: The entries in the graph include 1144 objections to election law changes by the Justice Department; 1021 Justice Department requests for more information that resulted in withdrawals or alterations in submitted election law changes, and 158 successful lawsuits to enforce Section 5.  A list of the jurisdictions covered by Section 5 is here.

The 1982 amendments to the law made proving Section 5 violations easier, and in the redistricting following the 1990 Census, objections rose markedly. But a series of subsequent cases, from Shaw v. Reno in 1993 through Bossier II in 2000, once more made it more difficult to object to discrimination.

Now the lessening of objections before the 2006 amendments is taken to indicate that the act is no longer needed.

Looking back, we can see that special political circumstances forced Congress to pass  the Voting Rights Act and then renew it four times. The huge Democratic majorities in Congress in 1965 and the Republican Party’s traditional commitment to civil rights allowed northern Democrats and Republicans to respond to the pressure from the Civil Rights Movement and pass the act. Then re-enfranchisement of most African-Americans in the South solidified the Democratic identification with the act and kept Republicans from converting the majority of Southern congressional districts until 1994.

By 2006, the Voting Rights Act seemed sacrosanct, and Republicans feared that attacking it head-on would alienate Latinos and moderate whites ‑ especially since risk-averse defenders kept amendments to an absolute minimum.

But the dramatic 2010 shift to the right in the erstwhile party of Lincoln, combined with a growing Latino demographic and partisan Democratic wave, has revolutionized the political calculus on election laws. A judicial reversal of Section 5 in this context would invite Republicans to gerrymander away minority legislative and congressional districts in the South, claiming partisan motives for such actions. It could also mean more stringent voter identification, registration and felon disfranchisement laws. Together, the laws in this second disfranchisement might well completely solidify the South in the Republican camp for the foreseeable future.

In these new political circumstances, it is folly to imagine that improvements on a struck-down Section 5 or some new scheme that would stop racial discrimination nationally or outlaw unfair election practices generally could pass the Congress. Under other conditions, it might be desirable to shift the basis of coverage from a history of discrimination to a demography of discrimination – on the grounds that the rise or presence of any minority group anywhere to a large enough percentage to constitute a threat to a majority group in power would be likely to trigger offsetting changes in election laws. But now it is unlikely that such a change could pass.

The impossible is the enemy of the adequate. Section 5 has served the country well, and ivory tower talk of schemes to replace it is a self-delusive fantasy.

ILLUSTRATION: MATT MAHURIN

PHOTO (Insert): The U.S. Supreme Court building seen in Washington May 20, 2009. REUTERS/Molly Riley


 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Comments
18 comments so far | RSS Comments RSS

Gerrymandering, eliminating Section 5, introducing talk of eliminating the Popular Vote in favor of Electoral Votes only….can no one see where this is going?

Posted by JL4 | Report as abusive
 

Who is to say that the decision would be 5-4? This is a test of the integrity of the more liberal justices, and anything other than a unanimous vote to strike down the Sedction 4(b) coverage formula (which provides the trigger that determines which jurisdictions are subject to Section 5) would be a stain on the credibility of the court.

If conditions today are so bad as to require Section 5, then please suggest a new coverage formula that ties the Section 5 trigger to evidence of current wrongdoing, rather than relying on 40-50 year old data as the current formula does.

Posted by kramartini | Report as abusive
 

There can be no doubt that, whether or not the Voting Rights Act intended to change the racial makeup of power in the USA, that makeup has fundamentally and permanently changed. The America of the 1960′s is dead, for better or for worse. There is no sense in keeping restrictions that have already permanently changed the country.

There is a lobby of Government dependent politicians and bureaucrats who themselves would have to change if laws kept up with the significant social changes since 1964. The past is past. Time to let a future come that is less dedicated to beating a dead horse. The changes now need to happen to the interventionist programs and laws that killed the horse.

American election iniquities far worse than those addressed in that law need to be corrected. How about ending gerrymandering? How about stopping legalized bribery? How about ending the de facto “two Party” system?

Posted by usagadfly | Report as abusive
 

3000′ish years ago the Greeks figured out democracy and that it didn’t really work. Great theory, impossible to implement with humans. Though I know most of the masses would disagree with me, and likely get violent too, the internet provides just enough protection from that kind of thing to be honest.

Our political system has come to the point that it is no longer serving the people. It needs to be re-though from scratch. I would start with the US Constitution and original bill of rights as guidelines. The electoral college is also a good template to start with. Hundreds of millions of voters is very, very difficult to manage and extremely easy to corrupt, influence, and manipulate as our current system is proving. Voters are basing their decisions on lies and spin, on candidates that were chosen for them anyway. Absolutely no way for you the voter to really have an informed opinion. The electoral college is probably a better way to go. It still embodies democracy, but adds the possibility of intelligence instead of mob rule. There have been hundreds of forms of democracies throughout history. We just need to modify ours a little bit to keep up with 21st century.

Posted by tmc | Report as abusive
 

outdated and now racist, you might want to reconsider the VRA and make it neutral in bias again.

Posted by VultureTX | Report as abusive
 

http://www.sodahead.com/entertainment/co nor-kennedy-arrested-because-of-environm ental-protest-sexy-or-stupid/question-35 24251/ , /conor kennedy arrested because of environmental protest ,Keystone XL tar sands oil pipeline debate on Sodahead,
as Much as I may dis agree with Obama’s Ellibitly to hold of office, be it as for respect of the office NOT THE MAN, If Obama was to use the powers of the veto it would be justified , be it if congress has passed the action to take place . as I understand the origins of the bill or action lacks a point or the rights of the votes to sustain any federal action , those i would think the supreme {courts} could hear it, the people of the states Directly in the path have a claim related to the 1st amendment , The People of the United states I would think have a claim the same, Where was the referendum ballot votes of the people to the states so for congress to hear to let any such pipe line take place, There, has been no action for congress to have heard the voices of the states and the persons of each state of the union, Other Wise I would have voted No, as my petition to the congress in regards of what seams to be a effort to dissolve the sovereignty of the United states at the Border , with out the power of the votes by the origins of the votes by either the people of the states Directly fected and or the nation as a Whole for the congress to use the rights of such powers some what out lined in the Article 1 Section 10 , No state shall enter into any agreement or compact with another state or with a foreign power with out the vote of the congress , There is another Point , an its with the Native Americans in likeness of another matter, the facts of views are bout the same Read the Bill , Bad River/Penokee Mountain Mining

Views on Treaties rights , resources control , Work Cited, Book,
Russel Means, Where White men Fear to Tread pages, 228 – 229 , , Based on
the topics I have read of Book work cited, The States Elected with all
do right are holding the meeting taking the words of the people of the
state thus pending any referendum ballot vote to submit to the the state
for the vote by the state to thus be given to the houses of congress
for review ie the federal , to then go before the reviews of treaties
for the reviews of the federal International Jurisdictions of facts of
rights to seek rights of the facts of any possible Libel restraints, be
it so the Tribes rights to Agree or reject for the facts of the fail out
of the Mines etc that would impact the tribes or thus impose on the
rights safety and or well being etc , Less the use of such actions would
make the United {State}’ s Libel in inter national courts. if the
rights of to reject or agree was not granted.!

Posted by BruceAnderson39 | Report as abusive
 

@tmc – modify the Constitution to better serve the people by eliminating the 2nd Amendment maybe? No?

It seems those who want to re-vamp voting and voting laws, and change the Constitution to suit their viewpoints get crazy when someone suggests that gun control should be part of that agenda.

Leaving voting, Section 5, the 2nd Amendment and the Constitution alone gets my vote.

Posted by JL4 | Report as abusive
 

I would think that yes, the 2nd amendment and all the rest should be updated to meet the 21st century, but they would no longer be “amendments” but part of a new restated constitution. Not eliminated.

Posted by tmc | Report as abusive
 

The US electoral system limits Government just like an absolute monarchy does. They can do what they want and do not have to do anything they do not. There is no observable difference between the two systems. Why even bother holding elections here as presently constituted? “Safe” seats reflect politically powerful, small minorities, not the People.

Posted by usagadfly | Report as abusive
 

@usagadfly, it seems you need to read up on the original, and current electoral college or “electors” and how they come to be and what is expected of them. We are not anything like a Monarchy and it is really difficult to draw any correlation between them without LSD. Also, safe seats are in congress, not the electoral. And that level of knowledge is why the concept was created.

Posted by tmc | Report as abusive
 

@tmc:

Formalisms, such as the “electoral college”, that have no practical restraint on the exercise of power by the powerful, who by definition make up the Government, are simply lipstick on the pig of absolutism. Gerrymandered election districts which make 90% of the House of “Representatives” safe seats are another meaningless formalism. Our entire system, including our so-called “Justice” system, is pure formality without real meaning.

Try living in an absolute monarchy before lecturing on the difference between that system and our own. And yes, they still exist. The USSR had plenty of formal restraints on government as well. Both here and now, and there and then, restriction on the exercise of power is what counts, and accountability. Not the electoral college, which certainly does not embody “democracy”. And yes, I know how it works, in detail.

Posted by usagadfly | Report as abusive
 

@usagadfly, Indeed you angry about the failures of our current system. That is pretty obvious. I was attempting to not just complain about it, but to offer a suggestion on how we might make it better.
Your anger has you declaring the most famous country in history for freedom and democracy is a monarchy without a monarch. No point in engaging you in discussion. I apologize for distracting you from your ranting and will not do so again.

Posted by tmc | Report as abusive
 

@tmc:

Yes, I am angry about the unkept promises of the USA to its own people. Yes, I am angry that the majority is not allowed to rule itself And yes I want restraints on Government and on the powerful who hold no formal office.

Posted by usagadfly | Report as abusive
 

How about local county, not political district or party vote for the electors of the electoral? Would that not reduce power to “the powerful who hold no formal office”? And indeed to those that were in formal office?
Those duly elected electors (a short term “office”) would be supported by pooled state resources to investigate federal candidates and determine who offers the best value for the people.
It’s just a start. Much more of our government needs to be “upgraded”.

Posted by tmc | Report as abusive
 

The system works now, and is not antiquated, or in need of any re-vamping. Voter laws don’t have the benefit of their very own Article in the Constitution, but there is an undeniable precedent for popular vote since the third Presidential election in this country (I think it’s the third). Saying that eliminating the popular vote, or rewriting the Constitution, borders on insanity in my opinion – or at least demonstrates sour election grapes.

I think it’s a common cry to revise the system when there has been a particularly polarizing election, which I doubt anyone on either side can deny.

The framers of the Constitution well understood the “lesser angels” of the majority, and wrote the Constitution to protect ourselves from, well, ourselves. The majority is not necessarily wise, but the majority is almost always fickle, and always at odds with the minority. Our system works, even when counter-intuitively, it doesn’t feel like it.

But back to the topic. Section 5 is still a necessity, especially here in the South where prejudices against minorities still exist, whether Jim-Bob wants to admit it or not, but also in other regions where prejudice is not a thing of the past under any circumstances.

If the South can do away with Section 5, it flings the door wide for injustices to be committed to minorities under any radar at all. I, for one, do not want to go backward. Who knows? It may not be too long before whites are the minority, and those Section 5 laws will be needed to protect us. If that idea makes you queasy, then you need to support Section 5. Just a simple case of be careful what you wish for, because you just might get it.

Posted by JL4 | Report as abusive
 

@JL4, I agree that the current system has been working very well throughout or short history. It was always a failsafe in case the public really blew it. Luckily that has not happened yet. The playing field changed though in last 8 years. When the President beat Hillary to the nomination, it shook the powers that be to there core. Hilary was pre-ordained by the democratic party to be the candidate and maybe even president. No one was supposed to be able to raise the money and influence to challenge a party decision. And when he won the election it shook the entire political landscape. This was not supposed to be a possibility, never mind a reality. The day he won, I told my wife and family that in the next two years campaigning will change in some fashion to ensure that it does not happen again. Enter the SCOTUS. The politicians do not want the public to understand the Electoral college as it is their safety net. With the advent of modern communications and social media, they will very likely need to use the electoral within the next few election cycles to keep some fool from being elected. Remember Boris Yeltsin?
I think if we instead embrace and improve the electoral system, we would have a far better chance of understanding what the people want and actually need.

Posted by tmc | Report as abusive
 

@tmc, maybe I don’t understand your post, but what’s your problem with President Obama raising money and challenging a party decision? How did President Obama’s win shake the political landscape, and why should it have been an impossibility?

FYI, I voted for our President. Isn’t anyone supposed to be able to run for President, (at least theoretically) “fool” or not? The people voted in the President, and he won the Electoral votes. This is a system we have used since the country formed. Why does it need to change?

I just don’t get your point.

Posted by JL4 | Report as abusive
 

I don’t have a problem with anything President Obama has done or is doing so far. I voted for him twice too. But I don’t think he’s a savior either. He ran on a promise to “Change how business was done in Washington”, but offered none. He is a Politian and has proven to be a very good one.

I guess my point is trying to patch up voting laws for the masses is peeing in the wind. Currently the public vote doesn’t matter and I don’t think it should. They cannot make an informed decision about placing their vote, and it matters not who they vote for as both candidates are part of the current establishment. Democracy or “majority rule” in these circumstances will either continue to be a mockery as it is now, or will turn into mob rule. So why don’t we try to change the game instead of the rules? Make all peoples votes count instead of tinkering with who can cast an almost meaningless vote? We have had four presidents that did not win the popular vote, but they were always close and easily spun away with the help of our free press. I think the next time it won’t be so easy. We should avoid the whole issue and change our republic to allow the public to vote for the electors. Then, if you are a citizen living in a county, any county in any state, you would have a vote. You would be much more likely to be making an informed decision and your vote would matter.

Posted by tmc | Report as abusive
 

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