A Law Worth Saving

For generations after the Civil War, Southern blacks were denied the right to vote through an array of clever stratagems. Poll taxes, grandfather clauses, literacy tests, quizzes about U.S. history, and good moral character requirements -- combined with occasional brute force -- kept Southern electorates lily-white. In 1965, only seven percent of Mississippi's black population was registered to vote, compared to seventy percent of whites.

Over the last forty years, America has made great strides in securing the franchise for all of its citizens. Unfortunately, as Congress found when it reauthorized the Voting Rights Act in 2006, cases of racial discrimination in voting are not just a relic of the Jim Crow past. To take just a few of the many examples cited by Congress: In 1987, Pleasant Grove, Alabama tried to annex two areas inhabited mostly by whites while denying annexation requests from two adjacent black neighborhoods. The town claimed its decisions were based on economic considerations, but a court found that its real motivation was minimizing future black voting strength.

In 2001, the white mayor and all-white Board of Aldermen of Kilmichael, Mississippi canceled local elections after Census data revealed that blacks had become a majority of the town's population. When an election was ordered to be held two years later, Kilmichael elected its first black mayor and three black Aldermen. In 2004, the white district attorney of Prairie View, Texas threatened to prosecute students from a historically black university if they attempted to vote. When students ran for local office, the town tried to schedule early voting during their spring break.

Nor are these just scattered anecdotes. As Congress also observed: White voters in Florida, Texas, and Virginia are registered to vote at rates 11 to 31 percent higher than minorities. Blacks account for just one in five state legislators in six southern states where they comprise about one-third of the population. No black has ever been elected to statewide office in Louisiana, Mississippi, or South Carolina. Louisiana has failed to submit a single nondiscriminatory redistricting plan during the last generation. And more than 700 proposals to change voting procedures were rejected by the Department of Justice from 1982 to 2004 because of their discriminatory purpose or effect.

Confronted by this mountain of evidence, Congress voted overwhelmingly in 2006 to reauthorize the Voting Rights Act. The final tally in the House was 390 to 33, while the Senate vote was unanimous, 98 to 0. One of the provisions that Congress reauthorized requires certain jurisdictions -- mostly in the South but also including parts of certain other states -- to submit all proposed changes in voting procedures for "pre-clearance" by the DOJ. It is this pre-clearance provision that prevented Pleasant Grove, Kilmichael, and Prairie View from going ahead with their schemes. It is also this provision that the DOJ invoked more than 600 times to reject discriminatory voting proposals, and that Congress referred to as "one of the VRA's most effective tools."

In a much-anticipated decision in late June, however, the Supreme Court declared that the pre-clearance provision raises "serious constitutional questions." While leaving the provision intact for the time being, the Court complained that its coverage formula (i.e., to which parts of the country it applies) is based on decades-old data and may no longer reflect current patterns of discrimination. The Court also expressed unease about the provision's applicability to all changes in voting procedures and all jurisdictions in covered states. Surprisingly, the Court's four more liberal Justices joined in this critique without filing any separate opinions.

The message to the pre-clearance provision's supporters is therefore clear: If they do nothing, there is a strong likelihood that it will be struck down when it is next considered by the Court (though nothing is certain where Justice Kennedy's vote is concerned). On the other hand, the provision might well be saved by a targeted Congressional amendment that addresses the Court's concerns.

What might such an amendment say? The most obvious possibility is to update the coverage formula so that it reflects current data. Registration and turnout statistics from the most recent presidential election (as opposed to 1964, 1968, or 1972) would be used to determine coverage. Another option would be to revise the formula, perhaps by changing its definition of banned "tests or devices" or focusing on disparities between white and minority voting patterns. Congress could also make it easier for jurisdictions to "bail out" of the pre-clearance requirement or reduce the requirement's twenty-five-year lifespan. Most intriguingly, as Yale Law Professor Heather Gerken has suggested, Congress could replace pre-clearance with an "opt-in" regime. Under this approach, which could be applied to the country as a whole, the DOJ would only review proposals to which minority groups had first filed a brief objection.

All of these ideas would better tailor the Voting Rights Act to the evils it is meant to combat. Updating the coverage formula, for instance, would directly respond to the Court's statement that "a statute's disparate geographic coverage" must be "sufficiently related to the problem that it targets." Loosening the bailout rules, shortening the law's lifespan, or adopting Gerken's opt-in approach, similarly, would reduce the "burdens" and "federalism costs" referred to by the Court.

However, none of these amendments would be easy to enact. Congress's near-unanimity in 2006 was due largely to the coverage formula's renewal without any alteration. If the subject is reopened, currently covered jurisdictions might seek to escape the pre-clearance requirement, currently uncovered jurisdictions might oppose becoming subject to it, and a messy legislative fight would almost certainly take place.

But this is a fight that should be fought. Racial discrimination in voting, while much reduced since the Voting Rights Act's passage in 1965, remains all too prevalent in many parts of the country. The pre-clearance provision is the most powerful weapon against such discrimination that Congress has ever devised. Now that the provision's constitutionality has been pointedly questioned by the Supreme Court, Congress should do everything in its power to save it. The ensuing debate may be long and difficult, but the benefits -- defending and perhaps even improving the crown jewel of all civil rights legislation -- are incalculable.

An abridged version of this piece was published with Paul M. Smith in the Houston Chronicle.

Comments

[Vandyfrat]

What about 2008?

Black Panthers with billy clubs harrassed voters outside the polls. They were found guilty, but the Obama administration decided to toss out the results and dismiss the charges.

The laws of our country need to be applied uniformly, without regard to race.

[Sundialsvc4]

Nicholas, while I fully agree that there is good merit to your arguments, I do wonder if there is not also merit in the Court's documents -- which I have also read. The notion that the basis for the decision (census data that may be up to 10 years old) might be insufficient, is a compelling one. You are undeniably correct that discrimination does occur, but it seems to me that our society might not be so determined as you seem to fear to throw out fifty years of social progress and return wholesale to Jim Crow.