A Special Feature by BPR and BPF
On February 20, the Supreme Court heard Shelby County v. Alabama, a challenge to Section 5 of the Voting Rights Act (VRA). Four Brown Political Forum participants weigh in on the pending decision.
BURDEN TO DEMOCRACY
by Oliver Hudson, Editor-in-Chief of the Brown Spectator
Like it or not, the Voting Rights Act of 1965 (VRA) is a third rail in American politics. As with many laws championed by the political left, any suggestion of scrapping or reforming the VRA is met with accusations of racism. Look no further than the media frenzy over Supreme Court Justice Antonin Scalia’s comments during oral argument in Shelby Country v. Holder, in which Scalia said that the VRA is a “perpetuation of racial entitlement.” A Google search of “Scalia racial entitlement” brings pages of articles and videos describing Scalia as backward and racist.
Not many questions at oral argument become mainstream news. That Scalia’s did confirms that the political left has succeeded in equating “voting rights” with “the Voting Rights Act” in the minds of the American public. But the VRA is more of an infringement on voting than it is a protection of voting.
Section 5 of the VRA requires particular voting jurisdictions to obtain “preclearance” from the Justice Department in order to change their voting laws, discriminating against particular areas under the auspices of protecting those citizens’ “right to vote.” In doing so, the VRA denies many citizens the right to democratically determine their local election laws solely on the theory that this infringement on voting is less severe than the potential for these areas to adopt discriminatory voting laws in the future.
This may have been a justified trade-off — in 1965. But today, efforts to create discriminatory voting laws are slim, despite the news stories. Out of all voting changes submitted to the Department of Justice for preclearance between 1982 and 2004, only 0.74 percent raised an objection. In 2004 and 2005, objection rates were 0.02 percent and 0.05 percent, respectively. This is a great accomplishment, given that the objection rate from 1964 until 1974 was 14.2 percent. The minimal number of violations of Section 5 in recent decades and their relative decline confirms that voting discrimination is not a major current problem. Today, the VRA is a greater burden on the right to vote on election laws themselves than it is a protection of the actual right to vote.
Unfortunately, racism still exists in America as well as rare incidents of voting discrimination. Pockets of racism and discrimination will always exist, but this cannot become a justification for a law burdening the voting rights of millions without racist intentions. The “preclearance” requirement of the VRA should be scrapped. That would symbolize a true victory against voter discrimination.
RATIONAL DISCOURSE KEY
by Ben Resnik, President of the Brown Political Forum
The Voting Rights Act (VRA) touches an old nerve in this country. It’s still painfully clear how temporary the beachhead is that equality has established, and how few barriers there are to that equality being swept away again. That’s why Shelby is such a bitter fight. There are very legitimate points to be made on both sides, but it’s hard to divorce reasoned discussion from the passionate history surrounding it.
There is no better example of this than the crux of Shelby County, Alabama’s defense — the argument to overturn Section 5 of the Voting Rights Act because it places an undue burden on certain states. There are valid, logical points to be made here and perfectly valid, logical arguments that prove the assertion wrong: the 15th Amendment demonstrably failed do its job for the first 100 or so years of its history, and the Voting Rights Act helps the 15th Amendment do this job. It is an unevenly applied solution because it is an unevenly distributed problem.
Objectively speaking, yes, it is true that the law imposes a disproportionate burden of proof on certain parts of the country. Whether that burden is excessive is an entirely different matter, but one that can be addressed with just as much objectivity.
What of obsolescence, the argument that the problem has moved to areas like Pennsylvania and Ohio that are not fettered by Section 5 of the Voting Rights Act? Again, there is real political thought and theory to this argument, and once proponents of social justice calm down they can use real political thought and theory to disprove it. The fact that voting equality problems have popped up outside the South isn’t grounds for an abandonment of Section 5, but for an expansion of it to every state and region that permits unequal access. That will have the double benefit of solving the problem while giving Shelby County what they wanted all along, the same privileges and consequences as every other county in the country.
The answer, as always, is conversation, not passionate but thoughtless offense. Shelby County raises very real points; there are issues of unequal access everywhere, not just in the South, and proponents of the VRA should be willing to hear that argument and adjust, doing things like setting clear, objective and location-blind criteria for opting in or out of Section 5. To do otherwise just cheapens the debate and erodes the legitimacy of counterpoint. Civil rights are dear to our national identity, but that means we must be all the more critical, and all the more introspective, in their defense.
THE WORST POSSIBLE TIME
by Sofia Fernandez Gold, President of Brown Democrats
My missing Juris Doctor title aside, I find the current threat to Section 5 of the Voting Rights Act (VRA) worrisome at best and dangerous at worst. There are myriad arguments to be made in favor of upholding Section 5, many of which have been made by the Court’s justices, the Solicitor General and the Obama administration. But it boils down to one simple fact: voting discrimination still exists.
When Congress passed the VRA, circumstances were far different than they are today. State-sponsored discrimination was commonplace, carried out through poll taxes, complex residency requirements and literacy tests. Progress has been made since 1965, but discrimination is far from obsolete. Between 1982 and 2006, Section 5 ensured that more than 1,000 proposed discriminatory voting changes were not enacted in jurisdictions singled out for preclearance. The problem is not that discrimination exists as it did in 1965, but rather that it continues to exist in increasingly subtle ways. In short, the poll tax of 1965 has become the voter ID laws of 2012.
Yet many of the states that passed or attempted voter suppression laws in the last five years fell outside the counties covered by Section 5. Last year Rhode Island, too, joined the ranks of disenfranchising states, alongside Florida, Pennsylvania, Wisconsin and tens of others, none of which are explicitly mentioned in Section 5. To consider eliminating an integral piece of American civil rights law at a time like this seems foolish. Why not expand preclearance? By holding all states to the same standards, we can better protect the voting rights of all our nation’s citizens, regardless of political party, skin color or location.
Would such an expansion be burdensome? Yes. Is it worth the equality it provides? Of course. A case like Shelby, in which the very democratic nature of our country is at stake, requires a strong response from the Court. If expansion is not an option — doubtful given the ideological makeup of the present Court — we must not let the perfect be the enemy of the good. Voting discrimination still widely exists — both in preclearance counties and many others. Let us not forget that the work we started nearly 50 years ago is not yet finished — indeed, we’ve only just begun.
LEAVE OUT THE A.G.
by Adam Asher, senior columnist for the Brown Daily Herald
Shelby County v. Holder got off to a rocky start for Bert Rein. The star conservative litigator had barely begun his argument in favor of the small county in Alabama when Justice Sonia Sotomayor interrupted. “Assuming I accept your premise that some portions of the South have changed,” she said, “your county pretty much hasn’t.” In other words, even if Section 5 of the Voting Rights Act (VRA) should be struck down, Shelby County’s history of discriminatory voting regulations and transgressions makes it a poor candidate to bring a lawsuit.
If Section 5 were a permanent, no-way-out clause for the precincts it affects, I would have no choice but to agree that it should be repealed. However, municipalities can — and often have — “bailed out” of federal preclearance for voting procedural changes, including a recent bailout in New Hampshire this March. The law stipulates that if a precinct has shown it does not engage in discriminatory practices, it does not have to remain under the supervision of the federal government. If we’re going to debate the VRA, our focus should be on making the “bailout” requirements clearer, not repealing Section 5 entirely.
In 1982, Congress passed the “bailout” option in an amendment to Section 4 of the VRA to make it easier for municipalities to “obtain relief” from the law’s requirements. In 2009 the Supreme Court further clarified these requirements in Northwest Austin v. Holder, stating that if an applicant can show it has not engaged in discriminatory practices for the past 10 years, it may be exempt from federal preclearance.
But there are numerous places in the process of seeking an exemption in which the attorney general can step in and exert undue influence over the application, a complexity that both the VRA’s supporters and opponents should be wary of. In this scenario, an overly zealous attorney general could hand out more exemptions than are reasonable, or continue to capriciously “punish” counties and states as he sees fit.
The tempting alternative is a “legislative test”— a metric to fairly and simply determine federal overreach — but there is significant danger here, too. If the standard for exemption was solely statistics-based, for instance, it might encourage election administrators to fudge the numbers to better make their case. More importantly, what would such a test be? Black voter-turnout percentage? Number of black candidates elected? Utilizing these specifically targeted statistical tests only invites an entirely new set of problems.
In a perfect world of perfectly impartial judges, there would be no issue with the judicial test for bailing out of Section 5. But judges’ personal opinions and sentiments routinely come into play more often than not. If the burdens of Section 5 are as onerous as the petitioners in Shelby claim, one solution is to take the attorney general out of the picture, leaving the issue of assessing bailout petitions instead to local federal district courts where judges can be closer to the areas under consideration.
However, for the next 10 years — the review period mandated by Section 4 of the Voting Rights Act — Shelby may have to stomach playing by the Justice Department’s rules. After that, the county can be free to do whatever it wants.