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What the Voting Rights Act Ruling Means for Voters

July 5, 2013 at 12:00 AM EDT
Without Section 4, will what remains of the Voting Rights Act of 1965 be enough to protect the interests of minority voters? Ray Suarez discusses the practical effects of the Supreme Court decision with Nina Perales of the Mexican American Legal Defense and Educational Fund and James Burling of the Pacific Legal Foundation.
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JEFFREY BROWN: And we turn next to the continued reverberations of the Supreme Court’s end-of-term rulings. The justices struck down a key provision of the Voting Rights Act.

Ray Suarez recently hosted a debate on how the decision will play out at polling places across the country.

RAY SUAREZ: Looking ahead to the practical effect of the high court’s voting rights ruling in coming election cycles in a changing America, I’m joined by Nina Perales vice president of litigation for MALDEF, the Mexican American Legal Defense and Education Fund, and James Burling, director of litigation for the Pacific Legal Foundation.

Ms. Perales, minus Section 4, will what remains of the Voting Rights Act be enough to protect the voting rights and interests of minority voters?

NINA PERALES, Vice President of Litigation, Mexican American Legal Defense and Education Fund: Well, we’re going have to work with what we have.

But the decision invalidating Section 4 has removed protections from millions of African-American, Latino and other voters. And, certainly, it is incumbent on Congress to try to restore those protections as quickly as possible.

RAY SUAREZ: James Burling, how do you see it?

JAMES BURLING, Director of Litigation, Pacific Legal Foundation: I see it very differently.

I think this is a tremendous step in the right direction. I think that we are going to continue and we must continue to have protections for minority voters in this country, but we can do it in a much more nuanced way. We can do it in a way that reflects the fact that we are right now in 2013, no longer in 1965. Times have changed tremendously, and the law must change with the times.

RAY SUAREZ: Well, Mr. Burling, there are lots of moving parts involved in running elections, re-maps following census, each state and jurisdiction’s laws about how you sign up to vote and where you vote.

With the authority to create these jurisdictions, these pre-clearance jurisdictions for now taken away, how do individual voters and groups of voters around the country protect their right if they feel that they have been violated?

JAMES BURLING: The same way they protect them in all the other states that are not subject to pre-clearance. You can file a lawsuit.

And, more importantly, the political dynamics, I think, make it very difficult and rare for the sort of discrimination that occurred in the 1960s to happen again. You have states like Mississippi that has a higher percentage of African-Americans registered to vote than white Americans. And I think the idea that we need to have pre-clearance only for the Southern states or just at any state actually is just outdated.

And I really think this does give us a good opportunity through Section 2 of the Voting Rights Act, which allows people to bring lawsuits if there are discrimination problems, and through other civil rights statutes as well. I think that we can move forward. And this is a way of moving forward.

RAY SUAREZ: Ms. Perales, Mr. Burling bring up a good point. When the Voting Rights Act was passed in the mid-’60s, we were just coming out of the struggles of the civil rights era. Now, almost 50 years later, Asian Americans and Latino Americans are the fastest growing voter groups in the country.

What is different about assuring their rights from the days when the United States was trying to get out from under Jim Crow?

NINA PERALES: Well, luckily, the Voting Rights Act has been vibrant and evolving.

Congress reauthorized the Voting Rights Act in 2006 after looking at exactly that, what is the state of voting and discrimination against minority voters in 2006, and amassed a tremendous record in support of the reauthorization.

Latinos, of course, have been in the United States since before even it was those parts of the United States where you find many Latinos today, California, Arizona, Colorado, Texas, New Mexico. And Latinos have struggled, as many other minority voters have, to cast an effective ballot.

So, for instance, the practical implications of the court’s ruling on Section 4 is that Texas doesn’t have to pre-clear, for example, its redistricting plans, which are currently in litigation. And Texas in every round of redistricting since the ’60s has been found to have discriminated against Latinos in its drawing of boundaries.

RAY SUAREZ: So, Mr. Burling, the who has changed, but maybe not the what?

JAMES BURLING: Well, you still do have Section 2, which allows people to bring lawsuits if there is discrimination.

And, yes, the things — things are more complicated today than they were in the 1960s, because we have a variety of other immigrant groups that didn’t play the political role that they do today back then. But I think, despite the fact that the composition of minority groups is changing, this country’s commitment to civil rights, this country’s commitment to voting rights is undiminished.

And this decision doesn’t diminish that at all. It just, as I said before, brings it into the future.

RAY SUAREZ: Well, outside of the states of the Confederacy and a scattering of other counties across the country, minority groups are growing apace. And Mr. Burling suggests they have the same remedies under Section 2 that all Americans have always had, without that pre-clearance requirement in place.

NINA PERALES: That is true.

We still have portions of the Voting Rights Act remaining. But Section 2 cases are very different than the protections that we have under Section 5. For example, we have litigated Section 2 cases to the U.S. Supreme Court. It takes years. It takes many, many dollars. And during that time, minority voters have to suffer under what will eventually be proven as a discriminatory system, right?

So hundreds of thousands of Latinos were casting ballots under a discriminatory redistricting system before it was struck down by the Supreme Court in 2006. And that was the last round. In this round, we had the ability to have Section 5 prevent those changes before they went into effect.

And, later, a court found that they were intentionally racially discriminatory, and that was the decision in 2012. And because of Section 5 and its shifting of the burden onto the jurisdiction to prove nondiscrimination, Latino voters were not subjected to discriminatory voting schemes in the interim.

RAY SUAREZ: Let me start with you, just check with you both before we go.

One of the least talked-about parts of Section 4 was one that required foreign language voting materials in many places in the country. Now that Section 4 has been struck down by the high court, James Burling, is providing foreign language voting materials to Spanish speakers in Texas, to Vietnamese speakers in Louisiana now an option in a way that it wasn’t when Section 4 still stood?

JAMES BURLING: I think that those jurisdictions will still continue to provide voting language materials and voting materials in foreign languages because it’s the right thing to do.

With Section 4 gone, I don’t think it’s going to take very long for Congress to mend the act in a way that makes sense. And if you can show that the denial of alternative language voting materials is a violation of somebody’s right to vote, then there are effective remedies.

Yes, it was just pointed out that utilizing Section 2 in individual lawsuits can be a long and difficult way of doing things, but sometimes the right way of doing things, sometimes the constitutional way of doing things is not the easiest, but that is our system of government. The pre-clearance provisions put an undue burden on a select number of states, based on analyses that were from the 1960s.

And now it is time to move forward and to make sure that there is no discrimination in voting. And that could include foreign language voting materials it.

RAY SUAREZ: Quick reply before we go?

NINA PERALES: Well, the Voting Rights Act has not been hanging around since the 1960s. It has been a vital tool.

What has been unconstitutional are the acts of discrimination. And Section 5 has served that important role to block it, until now. Congress is going to have to step in and restore those protections.

RAY SUAREZ: Nina Perales, James Burling, thank you both.

NINA PERALES: You’re welcome.