Friday, April 10, 2009

Racism Exists, Section 5 of the Voting Rights Act is Essential

Currently pending before the Supreme Court is Nw. Austin Municipal Util. Dist. 1 v. Holder, wherein a group in Austin, Texas has argued that Section 5 of the Voting Rights Act is unconstitutional. I just read the NAACP brief in the case, and I was genuinely shocked by the voting discrimination that exists in this country. In my opinion, it is quite clear that Section 5 is still needed and, in fact, is essential.

Section 5 of the Act requires that any change in "standard, practice, or procedure with respect to voting" receive preclearance from the Attorney General or the U.S. District Court for D.C., if the jurisdiction is a covered jurisdiction within 4(b) of the Act. Covered jurisdictions are those jurisdictions that, when the Act was adopted, utilized certain tests or devices that traditionally were designed to disenfranchise minorities, such as sham reading tests. In sum, if the Attorney General determined that a jurisdiction should be classified as a covered jurisdiction, then the jurisdiction must submit a request for permission to the Attorney General or U.S. District Court for D.C. before making changes with respect to voting laws. This description is extremely basic and underinclusive, but you get the basic gist.

As noted, in Holder a group from Texas is challenging the constitutionality of Section 5. The thrust of their challenge is that Congress lacked the authority under Section 5 of the Fourteenth Amendment or Section 2 of the Fifteenth Amendment to reauthorize the Act. Section 5 of the 14th Amendment permits Congress to pass laws needed to enforce equal protection, due process, and other protected rights under the Amendment. Section 2 of the 15th Amendment permits Congress to pass laws needed to protect citizens from being disenfranchised on account of race or other, similar characteristics. If Congress had the constitutional authority to reauthorize Section 5 of the Act, then that power must have come from the 14th or 15th Amendments. If the challengers in Holder can show that there is insufficient evidence of discrimination in voting to warrant Congress's reliance on the 14th and 15th Amendments, then Section 5 of the Act must fall as unconstitutional.

In other words, the case comes down to this: If there is evidence of significant discrimination in voting, then Section 5 of the Act is constitutional. Otherwise, it is not.

It seems to me that those challenging the law are mounting a silly argument, as the NAACP brief amply demonstrates. When Congress reauthorized Section 5, it compiled a significant amount of evidence demonstrating the discrimination that still exists with respect to voting. For instance, in Texas, there is a 16% gap between the voter registration rates of Hispanics and non-Hispanic whites. The brief also noted that "no African-American ha[s] ever been elected to statewide office in Mississippi, Louisiana, or South Carolina." (emphasis added) These facts, and many others contained in the brief, make a strong case for the existence of wide-spread discrimination.

But the most compelling evidence of discrimination proffered by the brief is as follows... When a covered jurisdiction wishes to change election laws, it must obtain preclearance. If the Attorney General believes that the request violates Section 5, s/he may interpose an objection. Here is the evidence:

[The] DOJ interposed more objections between1982 and 2004 (626) than between 1965 and 1982 (490), including objections to at least one statewide change in every fully covered State and in most partially covered States; that between 1980 and 2000, 421 objections were lodged on the basis of DOJ’s determination that the proposed voting change was motivated by a state actor’s discriminatory purpose; and that DOJ has objected to more proposed changes from Texas than from any other State.
(citations omitted)

Those are shocking numbers. The rate of discrimination is quite high and, apparently, has increased in recent years.

In other words, Section 5 of the Voting Rights Act is an essential measure for the preservation of equality in voting rights, and it will be a travesty if the Court strikes it down.

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