Think we don’t need to update the Voting Rights Act? Check out Tuesday’s primaries.

By Janai S. Nelson
June 25, 2014

mahurin-for-troutt--- nelson

The door is open for Congress to repair the nation’s most transformative election law, which was neutered by the U.S. Supreme Court a year ago today.

Chief Justice John Roberts, in his majority opinion for Shelby County, Alabama v. Holder, issued Congress a written invitation to renew the Voting Rights Act of 1965 after striking down Section 4 of the act and disabling the strongest safety check against racial discrimination in voting.  The Senate Judiciary Committee hearing Wednesday on the Voting Rights Amendment Act shows that his invitation did not fall on deaf ears or timid hearts.

Swift and dauntless action is needed in both houses of Congress, however, to ensure that voting remains an equal opportunity exercise for all Americans, and that Congress remains a relevant force in the defense of voting rights in places like Mississippi, Texas, Georgia and beyond.

roberts-better11On Tuesday, conservative groups marshaled poll watchers for the senatorial primary run-off in Mississippi. Though a court blocked their presence inside polling places, their position just outside threatened to intimidate voters who had come to cast their ballots — echoing the power that poll watchers exercised throughout the Jim Crow South.

This is one example of potential voter suppression that minority voters have confronted in the year since the Shelby decision was handed down. The countdown to the next midterm and general elections has already begun and, since that ruling, states across the South and beyond have resurrected discriminatory voting restrictions — and invented new ones.

Wednesday’s Senate hearing will likely focus on the state of minority voting rights, which lack pre-clearance protection for the first time in almost 50 years. Whether you consider the voucher tests in Alabama that require voters be verified by two poll workers in order for them to vote without an ID; cuts to early voting in Florida that more than half of all black voters relied on, or stringent voter ID laws in Texas that a federal court previously ruled discriminated against minority voters, the familiar creep of voter suppression is undeniable.

Voter suppression is also active at the local level. For example, after Shelby, election officials in Galveston County, Texas, resurrected a plan to halve the number of districts for constables and justices of the peace from eight to four. They have carried out this plan — though the Justice Department had rejected it as discriminatory under the Voting Rights Act and despite the fact that the districts were a remedy for past discrimination. In both Augusta-Richmond and Macon, Georgia, predominantly black jurisdictions, election officials scheduled primary elections in the summer — when black voter turnout is at its lowest. A change that Section 5 would have most likely blocked.

supreme-court-perspective41There’s also the city of Calera in Shelby County, Alabama, where the Supreme Court case originated. Because of the Roberts Court’s decision, the discriminatory annexation efforts that initially cost Calera its only African-American councilman — before successful litigation under the Voting Rights Act compelled a new election — would now be left unchecked.

I and others predicted this potential fallout in a special Reuters’ Great Debate legal forum before the Shelby decision. Specifically, I noted that, without Section 5, “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.”

Sadly, these predictions have come to pass in less than a year.

We will surely see more examples of voter suppression in the months and years to come if Section 5 is not restored. So Congress must act swiftly to move the Voting Rights Amendment Act forward with a hearing in the House and, ultimately, a vote for its passage.

The amendment is designed to restore crucial elements of the landmark act and strengthen its safeguards against racial and language discrimination in voting. It updates the formula for identifying jurisdictions that must receive federal oversight by relying on voting violations within the past 15 years as a trigger. It demands crucial advance notice and disclosure of any changes in election law nationwide, increases deployment of federal observers and expands Washington’s ability to suspend potentially discriminatory state laws pending litigation.

Just as important, the amendment is a bipartisan effort. Senators Patrick Leahy (D-Vt.), Dick Durbin (D-Ill.) and Chris Coons (D-Del.) in the Senate and Representatives Jim Sensenbrenner (R-Wis.), John Conyers (D-Mich.), Steve Chabot (R-Ohio) and Bobby Scott (D-Va.) in the House sponsored the legislation.  It has received strong support from civil rights and good government groups, and was co-sponsored by 35 members of Congress to date.

Congress should end the nearly year-long paralysis over voting rights and restore this critical provision of the legislation. Before summer recess at the end of July, the leadership should hold hearings in the House and bring the bill to the floor in both chambers.

Post Shelby, the federal government’s inability to pre-approve new voting laws  has forced the Justice Department to rely on other provisions of the Voting Rights Act. They are no replacement, however, for this uniquely preemptive measure. Provisions like Sections 2 and 3, though useful mechanisms for challenging discriminatory laws after they have been passed, are insufficient protections to ward off widespread voter suppression of the kind noted above.

The expensive and slow-moving battles in Texas and North Carolina demonstrate that these provisions are no substitute for a pre-clearance process that would never have permitted passage of such laws in the first place. In the absence of a pre-clearance check, the right to vote — the bedrock of our democracy — is dangerously vulnerable.

There is another, equally important democratic value at stake if Congress does not act — institutional competence. The Roberts Court substituted its judgment for Congress’ when it declared outdated Congress’ assessment of the record it relied on in reauthorizing Section 5 in 2006. In the Shelby oral argument, Justice Antonin Scalia called Congress’s deliberative integrity into question, stating that Section 5 is a “perpetuation of racial entitlement” for which there isn’t “anything to be gained by any senator to vote against [its] continuation.”

The foundational principle of separation of powers that has sustained our democracy since its founding cannot succumb, or appear to succumb, to such baseless attacks. Instead, Congress must remain steadfast in its protection of voting rights, thoughtfully repair the safeguards the court dismantled in the Shelby decision and redeem its role as the nation’s sole legislature.




PHOTO (INSERT 1): Chief Justice John Roberts listens to arguments from George Washington University law students during a moot court competition in Washington, Feb. 9, 2006. REUTERS/Jim Young

PHOTO (INSERT 2): The Supreme Court building seen in Washington, May 20, 2009. REUTERS/Molly Riley

PHOTO (INSERT 3): People wait in line to vote at a fire station near downtown, during the U.S. presidential election in Miami, Florida, November 6, 2012. REUTERS/Andrew Innerarity


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First, there isn’t any legislation needed. The Shelby County decision was aimed at only one section of the Voting Rights Act – the preclearance provision, requiring some (mostly southern) jurisdictions to get permission in advance from the federal government before making any change related to voting – and the rest of the Act remains in full force, including other, potent enforcement provisions for every jurisdiction in the country.
And, indeed, for better or worse the Justice Department and civil-rights groups are now using those other provisions to try to advance their agendas, which amount to a war on voter-ID requirements and ensuring the continued racial gerrymandering and segregation of voting districts. There’s no evidence that the Left needs more weapons in its arsenal; all that’s different in the post–Shelby County world is that now its lawyers have to prove racial discrimination before they can get court relief, which is the way that every other civil-rights law works.
The second point: Much in the bill has nothing to do with Shelby County at all. Rather, the Court’s decision is being used as an excuse to enact the Left’s wish-list in voting policy. In particular, the Left wants to promote its plaintiffs’ lawyers to the status of the attorney general in making civil-rights enforcement decisions, and to give attorneys general like Eric Holder nearly boundless authority to bring politically correct lawsuits under the Fourteenth Amendment. All this is a standard demand for the civil-rights groups whenever they (deservedly) lose a case and run to Congress.
The Left’s agenda is, of course, a decidedly color-conscious one. Thus, the bill itself features racial classifications, and offers protections for “minority voters” that it withholds from “nonminority” voters.
Key provisions of the bill attempt to reinstate the “preclearance” provision of the Voting Rights Act by amending another section of the Act so that it is triggered even when there has been no constitutional violation, as is now required by that section. This raises the same sort of constitutional issue that resulted in the Shelby County decision in the first place, since Congress would again be acting to limit state prerogatives even though it lacks a constitutional predicate for doing so.
What’s more, the new legislation is an attempt to ensure that the Voting Rights Act works principally as a “disparate impact” statute. This approach to civil-rights enforcement is favored by the Obama administration, as shown by its new school-discipline “guidance” this year. But that approach is not about stopping real discrimination; it’s about ensuring racial proportionality by eliminating legitimate standards and procedures.

Posted by RogerClegg | Report as abusive

Was there a similar op-ed piece in 2008/09 when the Black Panthers intimidated white voters in Philadelphia? I am pretty sure Holder didn’t think that was worth investigating and dropped the case. So why is it the demise of voter rights when some conservative group in the South wants to observe polling places but it isn’t when the Black Panthers, carrying sticks and shouting racial slurs at whites, do the same thing in the Northeast? Is it racial? Is is geographic?

This whole piece is written with a racial and regional bias, full of references to supposed problems in Southern states and the “Jim Crow South”. The “bipartisan effort” is led by six Northerners and one Congressman from Virginia, who happens to be a minority. I’m sorry but I don’t see the story here. Why is it acceptable to show proof of ID to get government aid, a driver’s license, a passport, etc but not to vote? You show an ID to cash a check, to pick up a registered letter, to get admitted to a hospital, to report for jury duty. The list goes on and on.

And as for gerrymandering, it is a joke regardless of who does it. But let’s remember it has been around for 200 years and is used the world over. And one of the driving forces for it in the US today is racial, mandated by the Federal government. And all it does is perpetuate a racially divided electorate. Why is it so hard to believe that a black president is capable of representing the entire US effectively but a white candidate is incapable of representing a diverse congressional district?

Posted by Tarheel72 | Report as abusive