The Reconstruction Congress that proposed the Fifteenth Amendment to prohibit racial discrimination in voting recognized that recalcitrant states and localities might employ some ingenious devices, like poll taxes or literacy tests, to deny suffrage to newly freed slaves. The drafters feared, however, that putting specifics into the amendment could jeopardize ratification. So they made do with a prophylactic safeguard that gave future Congresses the power to “enforce” the amendment “through appropriate legislation.”
Over the next century, states in the Deep South and elsewhere resorted to any number of ostensibly neutral but patently discriminatory devices to keep African Americans from voting. Only after decades of disenfranchisement of African Americans, often accomplished through brutal force, did Congress finally pass “appropriate” legislation: the Voting Rights
Act of 1965.
Act of 1965.
Today, the Voting Rights Act is recognized as the essential instrument in gaining a nearly equal franchise for African Americans to that of white Americans. Paradoxically, it has been so successful that one of its two central provisions is now under constitutional challenge as no longer necessary. And that issue is only one step away from the Supreme Court, after a ruling this month (May 18) to uphold the act’s so-called preclearance provision despite doubts raised by the high court itself.
The preclearance provision, section 5 in the act, requires covered states and localities to submit any change in election law or procedure to the U.S. Justice Department or a three-judge federal court in Washington before adoption. Five Deep South states are covered (Alabama, Georgia, Louisiana, Mississippi, and South Carolina), based on criteria included in the original act and tweaked several times since. Virginia was also originally covered in toto, but some local jurisdictions have used the act’s so-called bailout provision, section 4(a), to get out of the requirement. Alaska and portions of other states have come under the requirement in the years since because of low registration of minority voters.
Evidently, the South of the early 21st century is much different from the South of the 1960s. Among those noting the difference is Chief Justice John G. Roberts Jr., writing in the decision three years ago that left the preclearance provision in place, at least for now. “Things have changed in the South,” Roberts wrote for an all but unanimous court in Northwest Austin Municipal Utility District No. 1 v. Holder (2009). “Voter turnout and registration rates now approach parity. Blatantly discriminatory evasions of federal decrees are rare. And minority candidates hold office at unprecedented levels.”
Congress, however, was not so sanguine in 2006 when it renewed the Voting Rights Act, including the preclearance provision, for another 25 years and by substantial bipartisan majorities. The ruling by the U.S. Court of Appeals for the District of Columbia Circuit in the new challenge, Shelby County (Ala.) v. Holder, cites some of the evidence that Congress heard before deciding to leave section 5 intact.
Writing for the majority, Judge David Tatel noted several modern instances of blatant racial discrimination in the covered Deep South states. As one example, Walker County, Texas, sought to lower black voting in 2004 by reducing early voting at polling places near a historically black university and threatening to prosecute students for illegal voting. In another, Kilmichael, Miss., abruptly canceled an election in 2001 when “an unprecedented number” of African Americans ran for office. Another: Webster County, Ga., redrew school board districts in 1998 after a majority black school board was elected for the first time.
Just as important in the appeals court’s view are the instances of potential discrimination that have not been instituted thanks to the preclearance requirement. The Justice Department continues to use section 5 to block questionable election law changes by interposing objections – about 28 times per year. That rate that has remained somewhat constant since 1965. In addition, jurisdictions sometimes withdraw proposed changes after the Justice Department requests more information. Congress counted about 800 such instances from 1990 to 2005.
The Justice Department also combats racial discrimination with the act’s other central provision: section 2, which prohibits nationwide any election law change that has the effect of denying or abridge minorities’ voting rights. Between 1982 and 2005, the government won 653 section 2 suits in covered jurisdictions – more than 25 per year. As Tatel noted, however, section 2 litigation is less effective than the preclearance provision at preventing racial discrimination because the remedy kicks in only after the questioned changes have been put into effect.
In dissent, Judge Stephen Williams saw no logic to continuing to single out some states and localities for disfavored treatment. He noted the paradox that the Supreme Court allowed Indiana to implement a photo-ID voting requirement, but the Justice Department has blocked similar laws in South Carolina and Texas. The majority’s answer lies with statistics that show voting rights issues continue to crop up disproportionately in the Deep South states. And they note that the law has been revised to make it easier for jurisdictions to prove a clean voting rights record and get out from under the preclearance requirement.
Those considerations were good enough for Congress to pass and President George W. Bush to sign a long renewal of the Voting Rights Act. It remains to be seen whether they will be good enough for a Supreme Court that professes judicial restraint but often practices something else.