By Jueseppi B.
Today, the Supreme Court tossed out Section 4 of the Voting Rights Act, the key 1965 law meant to prevent disenfranchisement of minority voters. Section 4 says states and other jurisdictions that have sufficient histories of voting discrimination have to go through what’s called “preclearance” under Section 5 of the law whenever they redistrict or otherwise update their voting laws. Currently those jurisdictions cover most of the South but also Manhattan, Brooklyn, some counties in California and South Dakota, and towns in Michigan and New Hampshire.
While “judicial activism” is generally an unfortunate euphemism used by ideologues to mean “rulings I don’t like,” in this case, it has real merit. The people’s elected representatives in Congress approved the Voting Rights Act, then re-approved it on three separate occasions, each with large bipartisan majorities. It’s received the support of several presidents, also elected by the people, from both parties. This morning, five justices effectively declared, “The principles are legally sound, but we don’t like where you’re applying those principles.” This really isn’t what the federal judiciary is supposed to do, vetoing parts of laws they deem ideologically unsatisfying.
Supreme Court strikes down key voting act provision
By Sarah Kliff
In a 5-4 decision, the Supreme Court ruled Section 4 of the Voting Rights Act unconstitutional. “Its formula,” Amy Howe at SCOTUSBlog writes, “Can no longer be used as a basis for subjecting jurisdictions to preclearance.”
Read the full opinion here: Supreme Court ruled Section 4 of the Voting Rights Act unconstitutional
As Ari Berman noted on Twitter, the practical effect of the ruling is to render Section 5 of the law inoperative. It’s also the result that Rick Hasen, a UC – Irvine law professor and voting law expert, predicted in the case.
So what actually happens, now that Section 5 is defunct? Rick Pildes, an election law expert at New York University thinks some of the reactions to those questions on the voting law are hyperbolic. After the oral arguments in March, he noted that the home page of the Huffington Post Web site featured the headline “Back to 1964?” Nonsense, he argued. “No one in their right mind can think that there’s a risk that we’re on the verge of going back to the world that existed before 1965.”
So, what is the risk, if there is one? Pildes notes that the Justice Department has come to use section 5 more as a tool to that ensure minority populations are represented in legislative bodies than a way to tackle “ballot box” issues, like voter ID, wait times at the voting booth, and so forth. “For several decades now, it’s been far more significant in terms of redistricting issues than it has in ‘access to the ballotbox’ issues,” he says. “We like to talk about first generation versus second generation claims. First generation claims are about access to the ballot box. Second generation claims are about the representativeness of districts and how they are constructed.”
And Pildes isn’t convinced that doing away with section 5 would have much of an effect on second generation claims. For one thing, the Justice Department rejects only a tiny fraction of changes to voting and districting laws. An internal study found that the agency raised objection to less than 0.1 percent of all law changes between 1995 and 2004.
But, more significant, section 2 of the law allows for very similar objections to be made through federal lawsuits, rather than as complaints to Justice. “Section 2 is used in litigation all the time to challenge redistricting,” Pildes says. “Section 5 is mainly a procedural device for challenging redistricting, and the stakes are high enough generally that the losing side will turn to section 2 if section 5 is no longer available.”
What does worry Pildes is the possibility that section 5 has deterred localities from creating harmful ballot box regulations and that without it local governments would move to make it harder for disadvantaged groups to vote. But there are other tools there, he says, that could work to avert that. “There are a lot of other laws by now, both statutes at the national and local level, that provide mechanisms for challenging objections to voting,” he notes. “These voter ID laws, those were struck down in many parts of the country through litigation under state constitutions in areas that section 5 doesn’t apply to.”
But it’s worth noting that these mechanisms are less immediate than section 5. Pamela Karlan, a voting rights expert at Stanford Law who filed a brief in support of section 5 in the current case, noted to NPR that all districts have to do to be exempted from the law is have a clean record of 10 years without Justice Department objections. Shelby County, Ala., the plaintiff in this case, does not meet that requirement because it tried to redistrict a city councilor out of his seat. The councilor didn’t realize what had been going on until Justice rejected the plan. Under section 2, he would have had to take the council to court for its actions, potentially leading to a long court process before he was able to keep his seat. “Section 5 might make those challenges cheaper or easier,” Pildes notes.
But there’s a case to be made on civil rights grounds against Section 5. In a redistricting context, the Justice Department has tended to promote the creation of districts with a majority of a racial minority within their bounds (majority-minority districts), the theory being that members of oppressed groups should be represented in legislative bodies if those groups are to be represented adequately. This type of representation is referred to by political scientists and legal scholars as “descriptive representation.”
Others have argued that this is not enough. Lani Guinier, a professor at Harvard Law School, wrote a famous paper called “The Triumph of Tokenism” in 1991, arguing that a system of proportional representation would do a better job of representing black interests than does simply maximizing the number of African Americans in legislatures. “Black electoral success has neither mobilized the black community nor realized the promised community-based reforms,” she wrote.
Political scientists Charles Cameron, Sharyn O’Halloran and David Epstein backed up that argument when they found that majority-minority districts like those created by the Voting rights Act do not maximize substantive representation, or the election of legislators who agree with the prevailing view of a racial minority group. That’s because they concentrate like-minded minority voters into certain districts, meaning those voters have little representation outside those districts. That makes it easier for candidates judged by members of the relevant minority group to not share their interests to gain those outside seats. Epstein and O’Halloran have found that each additional majority-minority district increases the number of conservative-held seats by two.
Still, even O’Halloran and Epstein think section 5 is worth preserving, as in truly egregious cases it’s better than less efficient mechanisms and it doesn’t make the situation markedly worse than it would be with only section 2. Heather Gerken, a professor at Yale law school, adds that majority-minority districts provide safe seats that allow minority groups to build seniority and thus better serve their constituents. “That’s where having stability really matters,” she says. But Gerken acknowledges that there’s a tradeoff. Promoting minority interests, legal scholars are increasingly arguing, requires balancing a need for equitable representation in government with the potential that districting allowing for such representation will end up hurting the very community it was designed to help. Whether we’re on the right side of that tradeoff curve is perhaps a more interesting question than “is the Voting Rights Act unfair to the South.”
The Voting Rights Act of 1965 (42 U.S.C. §§ 1973–1973 aa-6) is a landmark piece of national legislation in the United States that outlawed discriminatory voting practices that had been responsible for the widespread disenfranchisement of African Americans in the U.S.
Echoing the language of the 15th Amendment, the Act prohibits states from imposing 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.” Specifically, Congress intended the Act to outlaw the practice of requiring otherwise qualified voters to pass literacy tests in order to register to vote, a principal means by which Southern states had prevented African Americans from exercising the franchise. The Act was signed into law by President Lyndon B. Johnson, who had earlier signed the landmark Civil Rights Act of 1964 into law.
The Act established extensive federal oversight of elections administration, providing that states with a history of discriminatory voting practices (so-called“covered jurisdictions”) could not implement any change affecting voting without first obtaining the approval of the Department of Justice, a process known as preclearance. These enforcement provisions applied to states and political subdivisions (mostly in the South) that had used a “device” to limit voting and in which less than 50 percent of the population was registered to vote in 1964. The Act has been renewed and amended by Congress four times, the most recent being a 25-year extension signed into law by President George W. Bush in 2006.
The Act is widely considered a landmark in civil-rights legislation, though some of its provisions have sparked political controversy. During the debate over the 2006 extension, some Republican members of Congress objected to renewing the preclearance requirement (the Act’s primary enforcement provision), arguing that it represents an overreach of federal power and places unwarranted bureaucratic demands on Southern states that have long since abandoned the discriminatory practices the Act was meant to eradicate. Conservative legislators also opposed requiring states with large Spanish-speaking populations to provide bilingual ballots. Congress nonetheless voted to extend the Act for twenty-five years with its original enforcement provisions left intact.
In the 2013 case Shelby County v. Holder, the United States Supreme Court struck down Section 4(b) of the Act and its formula for requiring preclearance as unconstitutional based on current conditions, saying it was rational and needed at the time it was enacted but is no longer necessary, notwithstanding the fact that Congress had nearly-unanimously reauthorized the Act in 2006. Preclearance itself was not struck down, but has no effect unless Congress passes a new formula.
|Long title||An act to enforce the fifteenth amendment to
the Constitution of the United States, and for
|Nickname(s)||Voting Rights Act|
|Enacted by the||89th United States Congress|
|Effective||August 6, 1965|
|Voting Rights Act Amendments of 1970 Public Law 91–285
Voting Rights Act Amendments of 1975 Public Law 94–73
Voting Rights Act Amendments of 1982 Public Law 97–205
Voting Rights Act Amendments of 2006 Public Law 109–246
|United States Supreme Court cases|
|South Carolina v. Katzenbach (1966)
Allen v. State Board of Election (1969)
Beer v. United States (1976)
Mobile v. Bolden (1980)
Shaw v. Reno (1993)
Bush v. Vera (1996)
Reno v. Bossier Parish School Board (2000)
Georgia v. Ashcroft (2003)
Bartlett v. Strickland (2009)
Northwest Austin Municipal Utility District No. 1 v. Holder (2009)
Shelby County v. Holder
I am no expert on The U.S. Constitution, I am an expert on common sense and my common sense tells me that to throw out any item of law that helps erase racism and discrimination BEFORE RACISM AND DISCRIMINATION HAS BEEN ERASED FROM AMERICAN SOCIETY, IS WRONG AND SHOULD BE ILLEGAL.
There is a vital need for affirmation action AND The Voting Rights Act Of 1965, until there is no need any longer, and that need will no longer be necessary when, and only when, racism in America is no more.
If you’re stupid enough to believe that on June 25th, 2013, racism is no more…..just turn on the evening news.
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