In Shelby County v. Holder, the Supreme Court struck down Section 4(b) of the Voting Rights Act, which includes a provision mandating that specified states “preclear” any changes in election regulations with the federal government. The court upheld other provisions of the Voting Rights Act intact, including Section 2, a permanent provision that prohibits racially discriminatory voting laws nationwide, but determined that Section 4(b) is unconstitutional. Section 4(b) constitutes the “coverage formula” used to apply Section 5. As enacted, Section 4 requires certain states and jurisdictions that were determined by the formula to have a history of racially unbalanced voting to preclear any changes in election regulation with the federal government, even changes as minor as moving a polling station from one building to another. The Court in Shelby found that the provision was unconstitutional because it was based on outmoded data from voter turnout in 1964, 1968, or 1972 elections. Further, many states and vicinities subject to preclearance no longer correspond to the same incidence of racial discrimination in voting. In fact, the Census Bureau has reported that black voters voted at substantially higher rates than whites in seven of the states covered by Section 5, a rate higher than many other states that remain unaffected by Section 5.
A main qualm that many proponents of the Voting Rights Amendment Act of 2014 have with the holding in Shelby is not its invalidation of Section 4 itself, but the consequential rendering of Section 5 as toothless. What many liberals overlook is that Section 5 is a temporary, emergency provision passed in 1965 that was originally supposed to expire after five years. In fact, the emergency provision was enacted for the purpose of providing temporary federal receivership of state elections. However, Congress renewed the so-called emergency provision for the fourth time in 2006.
I couldn’t agree more with proponents of the bill who contend that individuals should not have to jump through hoops to register to vote and locate their proper voting locations. However, I also believe that state officials should not have to overcome significant obstacles to manage insignificant changes to elections and placing the burden of proving that voting change “neither has the purpose nor will have the effect of denying or abridging the right to vote on account of race or color” on each jurisdiction every time the voting location changes from one building to another.
Requiring federal preclearance with the Justice Department or a federal court of any minuscule change to voting laws is essentially putting these states into the equivalent of federal receivership. The few benefits of the bill are simply not worth the far-reaching political intrusion that this version of the Voting Rights Amendment Act of 2014 would permit.