The American Spectator

Even worse, the bureaucratic nit-picking can tie up the court system. In several examples from Alabama, the Justice Department actually did preclear new election laws more than once, only to have judges order further preclearance proceedings years later. Why? Because (in one case) even though the state had submitted the entire law to the Justice Department with every change outlined in red, the judges faulted Alabama because its accompanying letter requesting preclearance did not specifically direct Justice’s attention to one of those red-lined changes. The court ruled thusly even though it acknowledged no discernible ill will or ill effects from the alleged lack of preclearance, and even though it found the supposed ambiguity “unintentional.”

The statistics, meanwhile, show that all this rigmarole is an unnecessary waste of time. In the past 24 years, according to the U.S. Commission on Civil Rights, “the ratio of objections to submitted changes dropped to 0.7 percent.” In the last ten years, there have been only 37 objections. Last year the Justice Department made only one objection out of 4,734 preclearance submissions. And since 1982, courts nationwide have found unconstitutional discrimination in voting procedures only 18 times — only 12 of them in the targeted states, with six of those violations unconstitutionally discriminating against not black voters but white ones. In several of those cases, too, the violations involved no new actions by the states, but instead merely isolated leftover effects of forgotten laws as ancient as 80 years old.

TO BE PERFECTLY CLEAR, nobody is suggesting that the Voting Rights Act be gutted, or that the act as a whole isn’t one of the best things Congress ever did. And even most of the critics of the temporary provisions believe that Section 5 as a whole ought to be renewed — but in substantially different form. Indeed, critics from the political right and left all seem on the same page as to several necessary changes. To wit:

First, preclearance requirements should apply to major electoral changes, not small ones such as the movement of polling machines (with adequate notice) from one corner to the next. Second, the provisions at issue should be renewed not for a whopping 25 years, as is currently proposed, but only for another five or seven. Third, if preclearance of major electoral-system changes is to be required at all, it should apply nationwide rather than only to certain targeted states. Fourth, all jurisdictions covered by preclearance requirements ought to be able to escape those requirements more easily upon demonstration of a clear record of nondiscriminatory practices.

Fifth, the “baseline” used to determine if preclearance remains necessary ought to be a recent year; most covered states right now are forced to compare their electoral practices to those in place in either 1972 or 1964. The absurdity of judging states by 42-year-old racial practices is almost self-evident; the nation has changed substantially for the better since then.

As Professor Swain put it to Congress — while testifying in favor of “renewal, but not in its present form” — “The bill under consideration risks falling into the category of poorly crafted legislation that will not serve national interests, the interests of minority voters, or the legacy of slain civil rights activists and civil rights leaders.”

It’s a damning indictment of Congress’s work product on this issue so far. Damning, and entirely accurate.