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Is Discrimination History Provision of Voting Rights Act Still Relevant?

February 27, 2013 at 12:00 AM EDT
Does the U.S. still need the Voting Rights Act? Or have we made extraordinary progress fighting racial discrimination, making it obsolete? Judy Woodruff talks with representatives from both sides of the argument: Hans von Spakovsky of the Heritage Foundation and Sherrilyn Ifill from the NAACP Legal Defense and Educational Fund.

JUDY WOODRUFF: And now each side gets a chance to weigh in.

Hans Von Spakovsky is a senior legal fellow at the Heritage Foundation and he filed a brief in this case alongside former Justice Department officials. And Sherrilyn Ifill is president and director-counsel of the NAACP Legal Defense and Educational Fund. An attorney from her group argued before the court today.

Full disclosure: She is Gwen’s cousin.

And welcome to you both.

SHERRILYN IFILL, NAACP Legal Defense and Educational Fund: Thank you.

JUDY WOODRUFF: So, Hans Von Spakovsky, here first — to you first. What is the best argument for keeping the Voting Rights Act — for getting rid of Section 5 of the Voting Rights Act?

HANS VON SPAKOVSKY, Heritage Foundation: Section 5 was an emergency provision. It was supposed to be temporary, only supposed to last five years.

And it was put in place because of widespread and persistent discrimination. The conditions that justified it in 1965 don’t exist today. And, in fact, the Supreme Court said back in 1966 that it was an extraordinary intrusion into state sovereignty, but it was justified by the unique circumstances.

That kind of widespread, systematic official discrimination doesn’t exist. There are still incidents of discrimination, but those can be remedied by Section 2 of the Voting Rights Act. That’s the nationwide permanent provision that bans racial discrimination in voting.

JUDY WOODRUFF: Sherrilyn Ifill, his argument is widespread racial discrimination doesn’t exist anymore; therefore, that provision, Section 5, isn’t needed.

SHERRILYN IFILL: Well, Congress had to take up that question in 2006, and they did. And over the course of nine months, they determined that it does exist.

The 15,000 pages of testimony that were described earlier, the 90 witnesses who testified, the 1,200 objections that the Justice Department had to make to voting changes, the 650 objections, over 400 of which were a determination that there was discriminatory purpose in voting changes throughout the jurisdictions that are covered by Section 5, that was the evidence that was before Congress in 2006.

And based on that evidence, not opinion, they determined that we still do need Section 5.

JUDY WOODRUFF: How does that square, Hans Von Spakovsky, with what you are saying, that there is no widespread racial discrimination? If there are that many examples of violations or alleged violations, how does that square with what you’re saying?

HANS VON SPAKOVSKY: Let’s talk about Alabama for just a second.

In the last 12 years, there’s been exactly one objection made in Alabama. And over the last 20 years …

JUDY WOODRUFF: When you say objection, objection to?

HANS VON SPAKOVSKY: An objection to a voting change that was submitted to the Justice Department for pre-clearance.

Out of the 12,000 jurisdictions that are covered, that’s all states, municipalities, counties, city governments, in the last 10 years, there have only been 37 objections. In fact, today, the chief justice asked the solicitor general, in 2005, the year before renewal, how many submissions were made of voting changes? Thirty-seven hundred. How many objections were made? Just one.

The point of that is, there is no longer systematic widespread discrimination. And the record that Congress established didn’t show that.

JUDY WOODRUFF: Sherrilyn Ifill?

SHERRILYN IFILL: That’s simply too narrow a vision of what Section 5 does.

Objections are when the community or the jurisdiction proposes a plan, the Justice Department reviews it, and determines that that plan is going to discriminate against minority voters. But there are other things that happen as well. Sometimes, the jurisdiction submits a plan. The Justice Department says, we think this plan is problematic. Give us more information.

And the jurisdiction at that point will decide to withdraw the plan. There are over 800 instances in the period that Congress studied in which a jurisdiction did precisely that.

JUDY WOODRUFF: So what about that point, Hans Von Spakovsky?

HANS VON SPAKOVSKY: Look, over the lifetime of Section 5, there have been something like over 120,000 submissions. The number of objections is extremely small, even when taking into account that particular factor.

And the point is …

JUDY WOODRUFF: When a provision was — when a jurisdiction brought — took it back and changed it; is that what you’re saying?


But the point of that is those instances can be remedied through Section 2. That’s when the government or private citizen goes to court and proves discrimination. Section 5, like I said, it’s an intrusion into state sovereignty, because you can’t make a change without getting the pre-approval of the government.

And that violates basic notions of sovereignty. And you can only do it if you have extraordinary circumstances. Those don’t exist anymore.

JUDY WOODRUFF: Sherrilyn Ifill, why isn’t Section 2 — I know we’re using a lot of terminology here.


JUDY WOODRUFF: But the provision that applies to the whole country, why isn’t that …

SHERRILYN IFILL: Right. The provision that applies to the whole country enables you to sue after discrimination has happened.

But what do you do in a circumstance in which the polling place, as happened in a native Alaskan village just in 2008, that the jurisdiction decides to move the polling place out of that native Alaskan village to a location that would require those villagers to take either a plane or a boat to vote?

What do you do when that polling place change happens right before an election? Is it enough to say, I can file a lawsuit? What Congress wanted under Section 5 was to stop the discrimination before it happened. And what they said in 1965 wasn’t just that they recognized that it was an intrusion, but what they said is, we need something that allows us to get at voting discrimination we can’t even imagine yet, that will allow us to capture all of the ingenious methods that jurisdictions might use to discriminate against minority voters.

JUDY WOODRUFF: So, why isn’t it better to move ahead of time, rather than waiting until after a violation has happened?

HANS VON SPAKOVSKY: Well, that issue came up in the court today. And one of the justices said, well, apparently the government hasn’t heard of the fact that you can go immediately to court and get a temporary restraining order to stop that kind of behavior.

The point of this is that, under Section 5, we do something that is just unique in American jurisprudence. The burden of proof is not on the government is to show that discrimination has occurred. The burden of proof is on submitting jurisdictions to somehow prove a negative that they didn’t discriminate.

And you can only put that kind of burden on if you have the kind of circumstances that justify it. And under the Supreme Court’s own holding in 1966, that doesn’t apply today.

JUDY WOODRUFF: How do you answer that?

SHERRILYN IFILL: This is precisely what Congress intended.

What Congress wanted was for the burden to be removed from the victims of discrimination and placed on the jurisdiction. And the Supreme Court has looked at this four times. The Voting Rights Act and the constitutionality of Section 5 has been challenged four times — four times — and each time, they have upheld the authority of Congress, who has the power under the 15th Amendment to protect the right to vote and to keep denials of the right to vote based on race and color from being enacted.

And what Congress tried to do was to make sure that not the victims of discrimination could bring lawsuits, costly lawsuits, but that instead the jurisdiction would have to submit to the federal authority to determine whether or not that voting change was discriminatory.


JUDY WOODRUFF: What about his other point about the option of doing a temporary injunction?

SHERRILYN IFILL: That still requires those native Alaskan villagers to find a lawyer, to go into court and to find a lawsuit.

And that’s what Congress didn’t want. It’s actually ironic that people are saying it’s better to have costly litigation that lasts years than to have an administrative process in which a jurisdiction can simply submit the documentation to the Department of Justice and get pre-clearance.

JUDY WOODRUFF: She’s talking about what Congress intended when it wrote this law.

HANS VON SPAKOVSKY: I know, but what Congress said when it wrote this law was that this was supposed to be a temporary provision that would only last five years.

We have now renewed it for a fourth time. It is going to last until 2031. And an important issue we haven’t discussed is the triggering formula. The jurisdictions that are covered today are covered based on registration and turnout data in the 1964, 1968, and 1972 elections. If you updated it, they would no longer be covered, because registration and turnout is now so good.

JUDY WOODRUFF: Just quickly, what about this out-of-date point?

SHERRILYN IFILL: We’re talking about reauthorization.

In 2006, what Congress did was, they looked at these jurisdictions to determine what is happening in those jurisdictions now. That’s the 15,000 pages of testimony. And it’s based on that determination of the ongoing nature of discrimination in those jurisdictions that they reauthorized.

Moreover, the act has built into it a process for getting out from under Section 5. It’s called bailout. And every jurisdiction that’s sought bailout has been granted bailout. You have a clean voting record for 10 years, you can get out from under Section 5. New Hampshire has a pending bailout petition right now. Many people think that the state of Virginia is very close to be able to bail out.

All the jurisdiction has to do is have clean hands, which Alabama — and almost every justice on the court conceded that today — does not.

JUDY WOODRUFF: We are going to leave it there.

Sherrilyn Ifill, Hans Von Spakovsky, we thank you both.

HANS VON SPAKOVSKY: Thanks for having us.

SHERRILYN IFILL: Thank you, Judy.

GWEN IFILL: You can listen online to a collection of viewer stories about the Voting Rights Act as part of our special oral history project.