Making sure race is considered
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.
The Voting Rights Act has worked for almost 50 years to remove racial discrimination from the electoral process and prevent its return. Wednesday the U.S. Supreme Court is expected to hear oral argument on the constitutionality of Section 5, one of the act’s most powerful provisions. Section 5’s work is done, this argument goes, and the provision has outlived its usefulness.
Yet some of Section 5’s most important work lies beyond its technical application. Section 5 requires that jurisdictions with a documented history of racial discrimination in voting seek federal approval for any voting changes. The aim is to ensure that new voting laws will not “retrogress” — or harm — minority voting rights. It subtly and constructively inserts race into electoral decision-making — creating a race consciousness among decision-makers that can often preempt discrimination. This deterrent effect, and its impact on the discourse of race in elections, may be Section 5’s most important — and unfinished — work.
Section 5 brings race into the room every time electoral decisions are made in covered jurisdictions. It is not only by Section 5’s wording, however, that race is part of the discussion when politicians re-raw district lines, election administrators contemplate voting changes and judges incept new electoral schemes. Race has had a reserved seat at the table of American democracy since the nation’s founding.
The well-documented evolution of voting rights underscores the destructive use of race to deny voting rights and political equality to minority citizens. The Supreme Court acknowledged in Shaw v. Reno that “the legislature is always aware of race” when it draws district lines.
Section 5, however, has changed the discourse around race in backrooms and in courtrooms by requiring that electoral decision-makers are not only aware of race but also are conscious of the racial impact of their actions and avoid racial harm. Indeed, Section 5’s anti-retrogression standard directs jurisdictions subject to oversight either to advance or, at minimum, protect minority voting rights. This framework also informs the voting rights discourse beyond Section 5 — suggesting that the only right direction to move on racial equality in elections is forward.
Some critics of Section 5 argue that its effects cannot be determined and, thus, congressional authority to enact Section 5 for deterrence purposes is suspect. Chief Justice John Roberts’ quip during oral argument in NAMUDNO v. Holder (2009) — that the effectiveness of a fictive elephant whistle could not be measured by the absence of elephants in the courtroom — illustrates this.
Section 5’s deterrent effect, however, is not an imponderable. As Morgan Kousser demonstrates in his article for this forum, studies show that, even with Section 5’s muscular pre-clearance requirement, rates of discriminatory conduct in jurisdictions subject to oversight are on par with, or even more prevalent than in non-covered jurisdictions. This suggests that, without Section 5, the jurisdictions subject to oversight would not maintain the same standards. It would leave only a Shaw-like [awareness of race that would not help minority voters.
More important, this data does not take into account the many ways Section 5’s race consciousness has informed voting changes in covered jurisdictions. For example, officials in these areas routinely consult, formally and informally, with the attorney general about proposed changes — even before submitting pre-clearance requests. Their proposed changes are often modified. Indeed, countless revisions often occur as a result of the attorney general’s requests for more information.
Covered jurisdictions also settle many lawsuits to avoid denial of pre-clearance. Joseph D. Rich, a former head of the Justice Department’s Voting Section, noted that “the most important impact of Section 5 is its deterrent effect on discriminatory voting changes. ... [J]urisdictions will think long and hard before passing laws with discriminatory impact or purpose.”
Because pre-clearance denial exacts a financial toll on covered jurisdictions and delays implementation of new laws, lawmakers have good reason to get it right the first time. Section 5’s influence here is not always captured in the data.
This is the nature of continuing legislation. As many have argued, the fact that the record of discrimination in covered jurisdictions has diminished is evidence that Section 5 is working — not that it has exhausted its usefulness.
The Supreme Court noted in the 2008 challenge to Section 5 that the congressional record supporting Section 5’s reauthorization “‘demonstrat[ed] that Section 5 prevents discriminatory voting changes’ by ‘quietly but effectively deterring discriminatory changes.”
Indeed, Congress reauthorized Section 5 in 2006 because of its continuing effectiveness in preventing discrimination ‑ not because it had eradicated it. Even if Section 5’s deterrent effect cannot be measured, Congress still has the authority to enact legislation like Section 5 for the purpose of deterring voting rights violations. By emphasizing race for constructive purposes, Section 5 remediates past and deters future racial discrimination consistent with Congress’s enforcement powers under the 14th Amendment “both to remedy and to deter violation of rights.” Congress’s power to deter necessarily requires a presumption of potentially immeasurable inaction or omission on the part of the targeted actors. To require otherwise would render Congress’s power to deter meaningless.
Without Section 5, Section 2 of the Voting Rights Act would be one of the few remaining race-based remedies in elections. Section 2 allows action against any law or practice that infringes the right to vote because of race. Although powerful, Section 2 is costly for litigants because they bear the burden of proving discrimination after it has occurred. This differs significantly from Section 5’s prophylactic stance.
If the Supreme Court strikes down Section 5, the concept of retrogression and the do-no-harm spirit it embodies would disappear from the general lexicon of election law. Moreover, race would no longer have the same constructive presence in the rooms of electoral decision-making.
Instead, race would enter the rooms of some of this country’s most troubled jurisdictions without the restraint of federal oversight — providing the opportunity, if not the invitation, for retrogression and retrenchment.
ILLUSTRATION (Top): MATT MAHURIN
PHOTO (Insert Middle): The Supreme Court. REUTERS
PHOTO (Insert Bottom) John Lewis leading a civil rights march on Edmund Pettus Bridge in Selma, Alabama, in 1965. Police attacked the marchers and Lewis was so badly beaten he ended up in the hospital. REUTERS/Library of Congress/Courtesy Representative John Lewis