Change is Bad. At Least for the VRA

On Wednesday, the U.S. Supreme Court heard oral arguments in Shelby County v. Holder, the fifth time the Voting Rights Act’s Section 5 has been challenged in the high court since it was passed in 1965. Section 5 requires nine states and portions of six others with a history of racial discrimination to have changes to election law “pre-cleared” by the government before going into effect. Every lower court has upheld the provision as constitutional, and Congress reauthorized it four times—always with overwhelming bipartisan support. 

But Shelby County, Alabama—the plaintiffs in this case—still wonders why it gets treated differently than Tennessee, which is not covered by Section 5 and which passed a voter-ID law—thought by many experts to be aimed at disenfranchising poor and minority voters—without pre-clearance. A similar law was blocked in Texas, which is covered, after it was deemed discriminatory by the Justice Department.

Bert Rein, attorney for Shelby County, suggested before the Court that Section 5 is itself discriminatory and should be struck down. More than once, however, Supreme Court justices asked why instead it could not be applied more broadly. If no place is immune to racism, “Why shouldn’t it apply everywhere in the country?” Justice Alito asked. Justice Kennedy later asked the same question.

It seems like a reasonable proposition, seductive even for liberals who’ve spotted voter suppression in places other than those covered by Section 5. Though temporarily blocked on state constitutional grounds, Pennsylvania and Wisconsin, which aren’t covered by Section 5, also passed voter-ID laws. In Pennsylvania, a state judge ruled that the law would disenfranchise some of its citizens, but only after a ton of literature and ads were spread across the state telling people that they needed ID to vote. If Pennsylvania had to pre-clear that law, the information campaign would not have happened unless the Justice Department approved it.

But there are also good reasons why expanding pre-clearance wouldn’t be the best idea. Experts caution that tinkering with the law could make it more vulnerable to constitutional challenges or lead to legislative debates that could eradicate it altogether. In addition, voting-rights advocates say that Section 5 is currently doing what it’s supposed to do where it’s supposed to do it—in other words, don’t fix something that isn’t broken. This claim invited skepticism from the conservative Supreme Court justices, who argued that Section 5 might be needed more broadly. This was a trap: If the U.S. conceded that Section 5’s protections might be needed elsewhere, then that weakens its raison d’etre. Shelby’s case is predicated on the present coverage formula being “irrational” because it captures places they think shouldn’t be captured. They argue that it shouldn’t be applied anywhere at all.

Debo Adegbile, the NAACP attorney who gave closing arguments in Shelby, said the idea of having Section 5 cover the entire nation has been floated since at least 1982. That year, Illinois representative Henry Hyde said that the people proposing this were “trying to strengthen this act to death” by imposing it on places that haven’t demonstrated a need for it.  

“The focus is on places with the worst records of discrimination,” said Adegbile. “Had Congress extended it nationwide, the first question from the bench today would have been, ‘Do you suggest that discrimination is worse than in 1965?’ And the answer would not have been ‘yes.’ So it’s clear that is a canard.”  

The evidence brought before Congress in 2006—over 9 months in almost 30 hearings—shows that the overwhelming majority of voting-rights violations take place in the states covered by Section 5. Christina Sanders, director of the Texas League of Young Voters Education Fund, said that in her state, which is covered by Section 5, problems like polling places being moved without warning voters and voters names not being logged in poll books continue to be problems, as they were before 1965. 

The polling place switcheroo is the number one issue caught in the Section 5 web, U.S. Solicitor General Donald Verrilli argued Wednesday. The potency of Section 5 is that it catches discrimination before it happens. The states covered have established a history of discrimination against voters of color and non-English-speaking voters such that Section 5‘s extra bite was needed. 

Furthermore, there is another provision in the act, Section 2, that is an adequate remedy for places with shorter histories of these problems. In those states, an injured party could bring a lawsuit if it found a law was passed with the intention to weaken minority voting power. But these are after-the-fact challenges that often take years to sort out. Section 2 could not work alone because the Justice Department would be spread thin putting out fires in court all the time, and most often after damage has already been done. Section 5 prevents some of these fires before they start. 

“Jurisdictions that consider passing discriminatory laws end up changing their minds a lot because of section 5,” says Anita Earls, director of the Southern Coalition for Social Justice and a former civil-rights attorney in the Justice Department. When working at Justice, Earls said many elections officials would call them to see if a law they wanted to change would end up with a discriminatory effect.

“They would get technical assistance about how to make a change that wouldn’t hurt minority voters and that’s a wonderful thing,” said Earls. She lives in North Carolina, a state that filed an amicus brief in Shelby as a covered state that wishes to remain under Section 5 oversight, and also argued against blanket or broadened coverage. Mississippi joined North Carolina on that brief.

“The legal question in the case is whether Congress struck the appropriate balance in continuing to cover the jurisdictions that have historically been covered,” said NAACP LDF director of litigation Elise C. Boddie, “What Congress did was recognize that there is a continuing problem in the covered jurisdictions and there is a disease of discrimination those jurisdictions. There was in 1965 and there was also in 2006. The question is, ‘Is the medicine still warranted?’ and unquestionably that answer has to be yes.”

As pointed out on Wednesday by Verrilli and Adegbile, Congress already acknowledged that Section 5 isn’t a perfect remedy. While no legislation is perfect, the act’s engineers already thought ahead about what may need to happen if Section 5 overreached, or if its reach needed to be expanded. If a jurisdiction kept its nose clean for ten years—meaning no Voting Rights Act violations, and no pre-clearance objections—then it can “bail out” of coverage, no longer needing the federal government’s permission for election modifications. 

Under Section 3, a jurisdiction not already covered can also be “bailed in,” if it’s been running afoul of the rights of voters of color. This has already happened 20 times, and is responsible for adding in New Mexico and Arkansas. These provisions were approved by our elected representatives in Congress, who the Constitution gives explicit and exclusive power to enforce the 15th amendment, which forbids blocking access to the vote based on race. 

“The court owes Congress significant deference and the very point of [the 15th] Amendment was to give Congress new powers partially because they didn’t want to leave the protection of rights to the Supreme Court that decided Dred Scott,” said David Gans, civil rights director for the D.C.-based Constitutional Accountability Center. 

The moral being: Congress knew what it was doing when it passed and reauthorized the Voting Rights Act. It doesn’t need to be meddled with. Leave it be. 

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