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Can Congress Design a Successor to Struck-Down Provision of Voting Rights Act?

June 25, 2013 at 12:00 AM EDT
The Supreme Court decided in a 5-4 vote to strike down a provision of the Voting Rights Act that polices voting discrimination. Ray Suarez gets debate on the fate of the law from Edward Blum of the Project on Fair Representation and Sherrilyn Ifill of the NAACP Legal Defense and Educational Fund.
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JEFFREY BROWN: And we return to our coverage of today’s Supreme Court ruling on the Voting Rights Act.

Ray Suarez examines how the law has shaped voting across the country.

RAY SUAREZ: And we turn to Edward Blum of the Project on Fair Representation. He helped Shelby County bring its challenge to the Voting Rights Act. And Sherrilyn Ifill is president and director-counsel of the NAACP Legal Defense and Education Fund. You saw both of them earlier outside the courtroom in Kwame Holman’s report.

And full disclosure: Sherrilyn Ifill is Gwen Ifill’s cousin.

Let’s start with the basics.

Did the Voting Rights Act, Edward Blum, do what it was passed to do in 1965?

EDWARD BLUM, Project on Fair Representation: Thank goodness it did.

It ended the widespread and insidious acts of racial disenfranchisement throughout the Deep South and elsewhere. And it’s a great testament to the evolution of our nation that the court today felt that the Voting Rights Act had done its thing and was no longer necessary. I think that’s a good thing for the country, and I think it speaks well to the character of the American people, both in the North and the South.

RAY SUAREZ: Sherrilyn Ifill, same question.

SHERRILYN IFILL, President, NAACP Legal Defense and Educational Fund: Well, of course, the Voting Rights Act has been called the crown jewel of civil rights litigation because it has been so effective.

But has it completed its work? By no means. And that’s why in 2006 when Congress was looking at whether to reauthorize the Voting Rights Act, they went through almost a year of hearings and heard testimony and looked at racial discrimination and voting in this country. They amassed a 15,000-page record that demonstrated the ongoing problem of racial discrimination in voting in jurisdictions throughout this country.

And, of course, the 15th Amendment to the Constitution says that Congress has the power to enforce the ban on voting discrimination that’s set out in the 15th Amendment, not the Supreme Court. And so it really hardly matters whether the Supreme Court feels that things are good enough to get rid of the Voting Rights Act. What matters is, what did Congress determine and did they do their job responsibly?

RAY SUAREZ: But Section 4, which was specifically struck down today, didn’t apply to the nation as a whole. It applied to certain sections of the country that were singled out for extra scrutiny from Congress. Could you imagine a time where those places would come out from under that? Because, today, the Supreme Court could.

SHERRILYN IFILL: Sure. Sure. I can imagine a time, and I don’t even have to imagine it, because the law also includes a provision called bailout that allows jurisdictions that have not run afoul of the Voting Rights Act over a 10-year period to be removed from the requirements of the law.

And every jurisdiction that has sought bailout since the enactment of the statute has been granted bailout. All Shelby County, Ala., had to do and all the state of Alabama has to do is not discriminate against racial minorities in voting for 10 years to get out from under the provisions of the Voting Rights Act.

So there’s a door out, but the door out is premised on a jurisdiction that ensures that its voting processes are equal, open, and fair.

RAY SUAREZ: Edward Blum, of all of the places that are now not under the scrutiny of pre-clearance, do they belong there? Have they, as Sherrilyn Ifill suggests, earned their way out?

EDWARD BLUM: Well, I think many of them have earned their way out and I feel that it was Congress’ responsibility back in 2006 not just to examine those jurisdictions that were put into this coverage back in 1965, but also to look outside of these jurisdictions in places like Ohio and Indiana and Illinois and Michigan.

Congress failed to do that. Congress assumed that because these were bad actors bad in 1965, that they are continuing to be bad actors. If Congress had cast a wider net, looked carefully at those states that were covered, made a determination some perhaps should stay in, some perhaps should come out, but also looked at the rest of the country, then I don’t think we would have this decision today.

Congress failed to do that, even though in 2009, the Supreme Court warned them that something like this could happen if another …

RAY SUAREZ: So you could have countenanced a Section 4 that was spread even in more widely over the United States?

EDWARD BLUM: I could have countenanced a Section 4 that swept in bad actors, but swept out good actors.

And if that meant that parts of Alabama were to be swept out, yet parts of Illinois and Massachusetts would be swept in, I can live with that. And I think most of the supporters of the Voting Rights Act could. Congress failed to do that.

That’s why we’re here, where we are.

SHERRILYN IFILL: If Mr. Blum could live with that, then he wouldn’t have been behind the effort to challenge the Voting Rights Act, because, in fact, I just described a bailout provision in the Voting Rights Act. The Voting Rights Act has a bail-in provision.

It allows jurisdictions that are not covered by Section 5 of the act who have engaged in discrimination and who have been found by a judge to engage in discrimination to be bailed in. Arkansas was bailed in for a time. New Mexico was bailed in for a time. So any jurisdiction, including the jurisdictions that you have identified, who have engaged in voting practices that have been found by a judge to discriminate in voting can under the strictures of Section 5 be bailed into the Voting Rights Act.

The genius of the statute is that it has a door that goes both ways. The problem is that jurisdictions, many jurisdictions, have not simply done the job that they need to do in order to be permitted to get out.

RAY SUAREZ: But, as you heard Mr. Blum point out, Congress was also not using the mechanics that’s right there in the law to separate the good and bad actors.

SHERRILYN IFILL: Well, I’m not sure exactly what that means. The mechanics that are in the law are the provisions that allow jurisdictions working with the Justice Department and federal judges to allow jurisdictions to either exit or to compel jurisdictions to enter the provisions of the act.

Congress made a statute that it thought was going to survive precisely because it had this ability to move states in and out. What Congress did in 2006 was it looked at the current states that were under the provisions of Section 5 and it looked at voting discrimination in those states to determine whether they should still be covered, and what it found, to its surprise, I should say, was that there was an overwhelming evidence of voting discrimination continuing in those covered jurisdictions.

And as a result, Congress reauthorized the formula to cover those jurisdictions and maintain the bailout and bail-in provisions that allow some states to come in or jurisdictions to come in and some jurisdictions to go out.

RAY SUAREZ: Well, now the action moves to Congress, Mr. Blum. Can they design a successor to the struck-down part of the law that will do the things you want and also provide the protections Ms. Ifill wants?

EDWARD BLUM: Well, I was on another panel earlier today with Congressman Bobby Scott of Virginia, and he was quite clear about this. -

He thinks that there is momentum in Congress across the aisle to do a do-over, if you will. Congress can systematically look at voting conditions for minorities from coast to coast, from Maine to California, Florida to Washington, and do a thorough analysis of what is happening today. If they can identify repeat offenders who are intentionally disenfranchising or diluting the votes of minorities, then those jurisdictions can be targeted by Congress and Section 5 will have an opportunity to prevent them from doing that in the future.

RAY SUAREZ: Well, now that it’s moved across the street the Supreme Court to Capitol Hill, what do you think the chances are?

SHERRILYN IFILL: We feel pretty confident. The Voting Rights Act has been reauthorized several times and always with a bipartisan Congress, signed, the reauthorization, in 1982 by President Ronald Reagan, the reauthorization signed by President George W. Bush in 2006.

It’s never been a Democrats’ — Democratic statute or Republican statute. It’s always been bipartisan. It’s always been about democracy. I think the real question on the table is really, are people like Mr. Blum and is a majority of the United States Supreme Court willing to allow Congress to do the job that the framers of the Civil War amendments said Congress should do, which is that Congress should have the power to make the judgment about how best to do it?

Sure, they can come up with another formula, but are we willing to credit the United States Congress with the authority that it has under the 15th Amendment to do precisely that?

RAY SUAREZ: Sherrilyn Ifill and Edward Blum, thank you both.

SHERRILYN IFILL: Thank you.

EDWARD BLUM: My pleasure.

JEFFREY BROWN: Online, you can listen to stories collected through our Oral History Hotline. We asked what people remember about the Voting Rights Act.

And, as we heard from Marcia, the court will hand down its final decisions tomorrow, including the highly anticipated rulings on California’s Proposition 8 ban on same-sex marriage and a challenge to the federal Defense of Marriage Act. And we will carry live coverage from SCOTUSblog beginning at 10:00 a.m. on our home page. And while you’re there, you can review our full Supreme Court coverage from this term.