The Supreme Court recently heard oral argument in Shelby v. Holder regarding the constitutionality of Section 5 of the Voting Rights Act of 1965. The VRA is a historic piece of legislation designed to enforce the 15th Amendment. Among its provisions, it outlaws the use of any “voting qualification or prerequisite to voting, or standard, practice, or procedure to deny or abridge the right of any citizen of the United States to vote on account of race or color.” But one of the enforcement mechanisms in the VRA, Section 5, places heavy restrictions on voting jurisdictions that engaged in discriminatory practices when the original law was passed. This is not only an example of major Congressional overreach, it is also archaic and makes little sense in today’s world. The Supreme Court should strike it down.
Section 5 of the VRA requires that all covered jurisdictions clear any change to voting practices, no matter how small, with either the U.S. Attorney General, or a three-judge tribunal in D.C. District Court. Section 4 defines a covered jurisdiction as any “State or political subdivision” that either previously administered a “test or device” as a prerequisite to vote or had less than 50 percent of eligible voters registered on Nov. 1, 1964. Other sections of the act include trigger provisions to “bail in” additional covered jurisdictions, as well as provisions to “bail out” individual counties — although this is both complicated and difficult to do.
The tests used to determine which districts fall under the regulation of Section 5 were broadly written and, as a result, have reached beyond the original intent of the law. Alaska was included along with the Jim Crow South. The trigger provisions have added such racist bastions as L.A. County, New York City, and parts of New Hampshire to the list.
But the vast majority of covered jurisdictions remain in the South. As Chief Justice John Roberts pointed out during oral argument, the state with the worst disparity in turnout between whites and blacks is that famous bulwark of Jim Crow, the Commonwealth of Massachusetts, while in Mississippi — one of the southern states covered by Section 5 — black turnout exceeds white turnout. Indeed, if the current voter registration and turnout had been taken into account when the bill was last renewed, it’s likely that none of the states covered by Section 5 — including the whole of the South — would remain under its direction.
Despite this, the government, represented by Solicitor General Donald B. Verrilli, has argued that there still exists widespread discrimination that is only just held at bay by the safeguards of Section 5. But of 3,700 preclearance requests it received in 2005 (the year before the VRA’s most recent renewal), Attorney General Eric Holder’s race-obsessed Justice Department objected to … one. A vast conspiracy to disenfranchise minorities this is not. When asked point blank whether the government contends that the “citizens of the South are more racist than citizens of the North,” the Solicitor General was forced to admit it did not.
Moreover, Section 5 has had numerous unintended consequences, especially in regards to redistricting, or, as the ever-subtle Justice Antonin Scalia so delicately put it, has created “a phenomenon that is called a perpetuation of racial entitlement.” Scalia’s comment, provocative as it may be, is based on wholly legitimate concerns. Section 5 has been interpreted as a justification for the drawing of minority-majority Congressional districts. But such districts naturally greatly diminish minorities’ electoral influence elsewhere. Thus, minorities are “entitled” to electoral influence in a limited number of intensely gerrymandered Congressional districts — but almost nowhere else. Such an arrangement strays closer to “separate but equal” than a colorblind society.
All of this would be moot if the states and counties covered by Section 5 were ever discharged from its control. The VRA, including Section 5, was originally set to expire after five years. But it was renewed in 1970, 1975, 1982 and again in 2006 for an additional 25 years. Each time, the law sailed through almost unopposed. Congress has refused to update the list of covered jurisdictions since the 1970s. In today’s contentious political atmosphere, no member of Congress can voice opposition to the VRA, even for legitimate reasons, without being branded a racist.
The original passage of the Voting Rights Act was a noble achievement intended to right the wrongs of minority disenfranchisement. The restrictions imposed by Section 5 made sense in 1965. But now, almost 50 years later, these provisions go far beyond the scope of “appropriate legislation” prescribed in the 15th Amendment. Section 5 is a overreach of Congressional power, and the Supreme Court should strike it down.
Jacob Grant is a UC Berkeley student.
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