Sometime early next year, the Supreme Court is expected to invalidate Section 5 of the Voting Rights Act, the most powerful and effective tool that the United States government has to combat discriminatory election practices. The expected decision, in a case called Shelby County v. Holder is not being met with shock or outrage by legal academics, but rather a dismayed shrug. Section 5 is one of the most unique civil-rights laws because it does not apply to most of the country. Instead, with a handful of exceptions like Alaska, Arizona and part of New York City, it applies only to states in the South—to be specific: all of South Carolina, Georgia, Alabama, Mississippi, Louisiana, Texas, most of Virginia, part of North Carolina and a handful of counties of Florida. In these covered areas, every decision relating to elections is subject to approval, or preclearance, by the Justice Department in Washington, D.C. And every decision means every single decision.
If a state covered by the Voting Rights Act wants to redraw its congressional districts or pass a voter-ID law, it needs to seek approval from Washington first. If a county board of elections in a covered jurisdiction wants to move a polling place from the Baptist church to the Methodist church down the street, or if a school board wants to expand its membership, that needs to be cleared by the Justice Department, too. Although this seems excessive, the logic behind it is sound. Subtle changes can have a major impact, and the most innocuous adjustments can have malicious intent.
For example, the Baptist church may be in the heart of a majority African-American precinct and easy to walk to, while the Methodist one may be at the precinct’s border and only accessible by car. Or it may be as innocent as the Baptist church having a leaky roof and the Methodists being willing to serve as a sturdier polling place. Under the Voting Rights Act, the Justice Department has to parse out which is the real reason for the move, and the burden of proof is placed on the jurisdiction to prove that the change is nondiscriminatory.
A majority on the Supreme Court has long been uncomfortable with this setup, however. The formula that determines what jurisdictions are covered by the Voting Rights Act has not been changed by Congress since the 1970s, and this intrusion into state sovereignty was justified only by the “exceptional conditions” of a century of institutional racism and Jim Crow. Although one prominent liberal academic has mused that Chief Justice Roberts would have found the provision unconstitutional in 1966, let alone 2012, the court has already ducked ruling on the law’s constitutionality once.
In a 2009 case with the excruciatingly long name Northwest Austin Municipal Utility District No. 1 v. Holder (PDF) (known as “Namudno” for short), the court reinterpreted the law to avoid reaching the constitutional issue by letting a tiny Texas utility district evade its requirements. However, the court warned that Section 5 imposed such a heavy cost on states that a history of past discrimination alone did not justify it, stating that “the Act imposes current burdens and must be justified by current needs.” Next year, it will finally determine if those needs in fact still exist.
Full Article: Do We Still Need the Voting Rights Act? – The Daily Beast.