Do We Still Need the Voting Rights Act?
Follow @sarah_childressFebruary 26, 2013, 12:25 pm ET
It was 2011, and the state of Texas was preparing to redraw its electoral districts.
The 2010 census showed that the state’s population had swelled by more than 4 million — to 26 million people. Sixty-five percent of the new Texans were Latinos. The influx boosted Texas’ congressional delegation by four seats, so by law, Texas needed to redraw its electoral districts.
Lawmakers drew up the new plans in an “anteroom” off the Senate floor. Senators who represented districts with large minority populations were refused entry, according to a 2012 D.C. federal court ruling (pdf) on the case, and weren’t allowed to see the new maps until 48 hours before they were introduced on the Senate floor.
Texas officials gathered data allowing them to “draw a district that would look Hispanic, but perform for Anglos,” according to the ruling. They drew district lines to cut out a Latino representative, and drew in a country club for a white representative, and the school of another representative’s grandchildren.
They added one new minority district.
Three black and one Latino representative saw their offices cut out of their districts, but no white representatives did. One Texas official involved in the mapping testified that officials didn’t know the addresses of the representatives’ offices when they drew the map, and that their exclusion was “just coincidence,” a suggestion the court found “not credible.”
The D.C. court said Texas officials’ testimony “shows a deliberate, race-conscious method to manipulate not simply the Democratic vote but, more specifically, the Hispanic vote.”
The officials’ goal, the court found, was to dilute the Latino vote while making the changes appear to “pass muster for the Voting Rights Act.”
“New Forms” of Discrimination
Passed in 1965, the VRA is landmark piece of civil-rights legislation designed to eradicate the countless tactics state lawmakers kept inventing to keep minorities from voting. The VRA put an end to the legal whack-a-mole by banning such practices outright, and putting special restrictions on states that have a habit of discrimination.
On Wednesday, the VRA itself will be on trial. An Alabama county plans to argue before the Supreme Court that a key provision of the VRA has served its purpose, and should now be struck down.
The case, Shelby County v. Holder, centers on the heart of the VRA, a provision known as Section 5. This bars certain jurisdictions — which could be counties, cities or whole states — with a history of discrimination from enacting any changes to their voting laws without approval, or “preclearance,” from the federal government.
Most of those states are in the south. They include Texas and Alabama, and by extension, Shelby County.
Shelby County acknowledges the country’s long history of voter discrimination. But it argues that that time has passed. Gone are the discriminatory literacy tests or poll taxes, white-only primaries, and open threats of violence against those seeking to cast a ballot of decades past. The nation just re-elected its first black president, and blacks have ascended to other high offices nationwide. It’s time, Shelby County argues, to move on.
VRA supporters agree the world has changed. “People are more politically correct so you don’t see the same kind of record [of racial bias] you used to see in the ’50s and ’60s,” said Nancy Abudu, the senior staff counsel with the ACLU’s Voting Rights Project, which has filed a brief in support of the VRA.
But discrimination still lingers, Abudu maintained. The tactics have become more subtle and target different communities. The VRA that once protected blacks from poll taxes now allows Latinos to elect candidates of their choice, keeps Native Americans from being packed into powerless districts, and allows Chinese and Vietnamese Americans who don’t speak English to vote in their own languages.
Texas’ redistricting battle is just one recent example. Texas was roped into Section 5 in 1975, because of a pattern of discrimination against Mexican-American voters.
In the 2011 redistricting, the federal court found the state in violation of Section 5 and rejected the maps, which were not allowed to be used for the 2012 election. Texas, meanwhile, has appealed to the Supreme Court.
Proponents of the VRA argue that without Section 5, Texas could have approved the maps and gone forward with the 2012 election with the new districts in place before opponents could bring a lawsuit to shut it down.
The Voting Rights Act was also used before the 2012 election to block laws that the government found discriminatory before they took effect.
In Texas, the Justice Department rejected the state’s voter ID law, which was considered the strictest in the country, because it violated Section 5 of the VRA.
It also blocked a voter ID law in South Carolina, another covered state, from taking effect in 2012 for the same reason.
“We Have Repented”
The covered states argue that extending the Section 5 protections to the present day was unfair. “We have repented, and we have reformed, and now, as Fannie Lou Hamer famously said, ‘I am sick and tired of being sick and tired,'” said Lynn Westmoreland, a representative from Georgia, invoking the tireless black voting-rights activist in 2006 remarks before Congress.
In 2006, Congress renewed the Voting Rights Act for another 25 years — through 2032 — after reviewing 15,000 of pages of documentation showing that racial discrimination persisted.
In its case before the Supreme Court, Shelby County argues that the preclearance requirements are too burdensome, and the process used to determine which states should be covered are out-of-date. (Read the full brief here.)
It claimed that Congress, in its 2006 investigation, found only “scattered and limited interference with voting rights, a level plainly insufficient to sustain Section 5 preclearance.”
“Nothing in the record suggests that covered jurisdictions remain engaged in the pervasive voting discrimination and electoral gamesmanship that once made case-by-case adjudication of constitutional violations a futile enterprise and spurred Congress to act,” the brief argued.
It also noted that while preclearance was only designed to eradicate practices that keep voters away from the ballot box, many of the more recent cases involved vote dilution through redistricting, such as in the 2011 Texas case. “Preclearance is not an appropriate remedy for practices that affect the weight of votes cast,” Shelby’s petitioners wrote. Instead of using Section 5, Shelby argues, those who want to bring cases alleging vote dilution should take their complaints to court.
“You Have to Look at the Real World”
The VRA does have an escape-hatch for covered jurisdictions.
Those that can demonstrate a clean record for 10 years, with no objections from the Justice Department, are allowed to “bail out” of the preclearance requirement.
So far, 136 jurisdictions have done so. The city of Pinson, Ala. was granted an exemption in April 2012 after proving it had no history of discrimination (pdf) since it was incorporated in 2004. Sandy Springs, Ga., was also bailed out of the preclearance requirement in 2010 — the only city in its state to do so.
The state of Virginia tried to bail out in 1974, but was turned down because it had imposed a literacy test for voters. Still, today, more than two dozen counties and cities in Virginia have bailed out of the preclearance requirement.
All of the original states, however, remain covered almost in their entirety.
Shelby County petitioners argue that’s because the bailout standards, which require 10 years of good behavior, are too difficult. “It isn’t adequate, and the practical side is that there haven’t been a lot of bailouts,” said Bert Reins, an attorney at Wiley Reins who is arguing the case for Shelby County. “You have to look at the real world.”
VRA supporters argue that the data shows, instead, that the bailout provision works. “If a jurisdiction is clean-living and no longer needs to be covered it can bail out,” said Laughlin McDonald, director of the ACLU Voting Rights Project.
At least four states covered by Section 5 agree. Mississippi, New York, North Carolina and California filed an amicus brief (pdf) in support of the VRA. “In Amici States’ experience, the substantial beneﬁts of the preclearance process have outweighed its burdens on covered jurisdictions.”
The states said that preclearance improves transparency, and serves “as a critical means to identify and deter retrogressive and discriminatory voting-related changes.” It also helps avoid costly lawsuits, they noted, for both the states and federal government.
The Supreme Court’s Decision
The Supreme Court upheld challenges to the act four times in four years after the act was passed. In deciding South Carolina v. Katzenbach, a 1966 landmark case that required states to comply with the law, the court wrote: “Congress had found that case-by-case litigation was inadequate to combat wide-spread and persistent discrimination in voting, because of the inordinate amount of time and energy required to overcome the obstructionist tactics invariably encountered in these lawsuits.”
Were the Supreme Court to eliminate the preclearance requirement, the Justice Department, or local civil-rights groups, would have sue jurisdictions each time they objected to voting changes — a time-intensive and expensive process, but one that Shelby’s supporters argue would be enough to combat today’s voter discrimination.
It’s not clear how the court will rule. Chief Justice John Roberts has already suggested in a 2009 ruling that he thinks the VRA is outdated. Justice Clarence Thomas indicated in a dissent filed in that case that he considers Section 5 unconstitutional, but the other justices could sway either way.
And though it isn’t likely, the court could also make a decision that skirts the question of Section 5’s constitutionality.
“It all depends on where the votes are and what the conversation is within the court,” said Steven Shapiro, the ACLU’s legal director. “There’s every reason to believe this is going to be a battle in the court.”
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