Section 5 of the Voting Rights Act was an ingenious solution in 1965. Its extension in 2006 was mere political expediency. Now the Supreme Court must decide whether that extension was also constitutional.
The 1965 Voting Rights is the nation’s most successful civil right law. On the eve of the Act’s passage, massive disfranchisement of blacks in the South was a glaring blight on our democracy. Open discrimination plus literacy as a voter registration requirement combined to deny the first right of citizenship to a substantial segment of South’s population. Years of traditional litigation under earlier civil rights statutes had hardly dented the problem. In Mississippi, the most extreme state, extensive litigation resulted in an increase in the percentage of blacks registered to vote from 4.4% in 1954 to 6.4% in 1965. With the Voting Rights Act, Congress by-passed litigation and Southern registrars by banning literacy tests and providing a federal administrative process to add blacks to the voting rolls in the states where disfranchisement was most severe. The Act’s impact was immediate and dramatic. In September, 1967, just two years after the Act became law, nearly 69% of Mississippi’s age-eligible blacks were registered, with the majority voluntarily added to the voting rolls by local registrars. By 2006, 76% of age-eligible African Americans were registered to vote in Mississippi, a percentage greater than that of white Mississippians, and also of blacks outside the South.
To guard against the possibility that officials might enact new devices to replace the literacy test or to otherwise interfere with blacks’ access to the ballot, Congress included Section 5, a provision that required the offending states to obtain prior federal approval (“preclearance”) before implementing any change in their procedures affecting voting. Long after blacks had achieved substantial registration parity with whites, Section 5 continued to require covered jurisdictions to obtain prior federal approval of voting changes ranging from moving a polling place across the street to redrawing of election district lines, as constitutionally mandated following each census. Initially adopted in 1965 as a temporary, five-year, measure, Section 5 was extended on several occasions, eventually continuing its special federal supervision until 2007, when it was scheduled to expire.
On very little evidence that it was still needed, Congress extended Section 5 in mid-2006, a year earlier than necessary in order to remove it as an issue in the fall elections. In its haste, Congress failed to adequately address what should have been the only issue that would justify continuing special supervision of these states for an additional 25 years. Were Section 5’s draconian measures still essential for protecting minority voting rights in covered states? The answer should have been no. Section 5 was adopted in 1965 to address conditions that no one suggests exist today. In 2006, there was no credible evidence that the permanent provisions of the Voting Rights Act and other laws that apply nationwide were not sufficient protection for minorities everywhere.
Later this month, the Supreme Court hears arguments on the constitutionality of the 2006 extension. Hopefully the justices will come to understand that Section 5, once an essential and ingenious solution to an intractable problem, well before 2006 became a tool with which to manipulate and distort the political process in covered jurisdictions.
Even in 1965, when it was essential, Section 5 stretched notions of federalism. Today it remains the single most unusual federal law ever enacted. First, it is the only federal law limited to certain states. The formula for selecting the initial states was based on voter registration statistics from 1964 and was not changed in 2006. Thus these states will be subjected to 25 additional years of special supervision, not based on recent acts of discrimination, but on conditions which no one suggests exist today.
Second, Section 5 reduces “covered jurisdictions” to less than sovereign status by rendering unenforceable laws they enact, unless approved by an arm of the federal government — typically the Department of Justice (“DOJ”). Third, Section 5 empowers DOJ to determine an aspect of a democracy second in importance only to the issue of who may vote — the means by which the “governed” select those who “govern.” Using this power, DOJ has re-ordered the basis of representation for all citizens of the covered states and has done so with limited judicial supervision and even less public awareness.
In 1965, five unique circumstances in states Congress targeted for the Voting Rights Act justified its unprecedented measures, including Section 5. In the absence of these circumstances today, the 2006 extension of Section 5 was unjustified and unconstitutional.
First, the problem of entrenched, widespread racial disfranchisement was largely limited to the South. Second, Southern blacks were outside the power structure, politically, judicially, economically, and socially, and thus were dependent on others to address the problem. Third, and perhaps the key factor in the constitutionality debate, existing federal laws providing traditional, fact-dependent judicial remedies had proven incapable of solving the problem and any remedy requiring adjudication was likely to be equally unavailing. Fourth, judicial remedies were more ineffective because their enforcement depended upon Southern federal judges, some of whom were unsympathetic or outright obstructionist. Fifth, Section 5’s “freezing of voting laws” was essential to the success of other parts of the Voting Rights Act, which banned outright the chief disfranchising tool, the literacy test, which Congress justifiably feared might be replaced by alternative devices. Thus, Section 5 provided a partial stand-in for absent black legislators by assuring that black interests were considered when whites changed the rules.
Regardless of how challenges to the constitutionality of the Act were framed in 1965, the simple fact was that a means had to be found to guarantee blacks the opportunity to vote — an essential step for the group’s ability to fend for itself. Arguments that the Act “infringed state sovereignty” lacked legitimacy when made by jurisdictions that were systematically excluding a substantial segment on their citizens from the political process.
In 1965, it was a rare Southern county where even literate blacks were registered at rates comparable to those of whites and in many, no blacks were registered. Today, literacy tests are banned permanently. Surely there are very few places where black registration is not comparable to that of whites, or if not comparable, where there is credible evidence to suspect discrimination. No problem remotely comparable to the racial disfranchisement of the 1960s existed in 2006.
In 1965, the entire electoral process was controlled by whites. Few, if any, blacks worked in registration offices, served on registration boards or as poll workers. Certainly few were part of political parties’ leadership. Few held positions of influence in the larger community, or had personal and financial resources to hold white political actors accountable. Black elected officials were virtually nonexistent. Thus, blacks could not observe, prevent, or address discriminatory practices. Obviously they could not assure that their legislative interests received the consideration their numbers should have compelled from the political process.
Today, it would be rare in a jurisdiction with even a modest black population not to find blacks fully involved in all aspects of the election process. In much of the South, African Americans dominate the Democratic Party, and enjoy public employment and the benefits of political patronage. Surely proportional election of African Americans is more common in legislative bodies at all levels than their absence.
In 1965, the Constitution and existing federal anti-discrimination laws were incapable of dismantling system-wide racial disfranchisement. The fledgling U.S. Civil Rights Division and the small number of underfunded civil rights organizations also had to fight discrimination in housing, education, and employment. Today, additional federal laws, including the permanent provisions of the Voting Rights Act, guarantee that all qualified citizens have access to the ballot, and that minorities have viable means to challenge other forms of voting discrimination. A well-funded section of the Civil Rights Division devoted exclusively to voting, the greater number of civil rights organizations, and many well-educated, well-positioned African Americans with the means to discover and address discrimination guarantee that these laws will be utilized. The vetting process for federal judges insures that they will be enforced. It is inconceivable that without Section 5, minority citizens would be without the means to guarantee the political influence their numbers fairly mandate.
Society has also changed. In 1965, the overwhelming majority of all adult residents of the South were natives of their state, and had lived their entire lives in a segregated, socially and economically stratified society. Racial disfranchisement was a “present and endemic evil.” Many, indeed likely most, blacks of the day were its victims. Most white political leaders had at a minimum acquiesced in measures that limited black political influence, measures the local press all too often applauded. Gross malapportionment resulted in legislatures dominated by rural, and likely the most conservative, legislators.
Today, while the decrease varies by state, a larger percentage of the citizens of Southern states were born outside the state of their current residence. Only a very small percentage of today’s population is both of an age (at least 66) and was in a place in 1965 (a Section 5 state) to have been either a perpetrator or victim of racial disfranchisement. Most of today’s adults came of political age post de jure segregation and have become acculturated to an integrated society. Every person in office today was elected in an era of heightened public scrutiny of political “misdeeds” in general and of any that smacked of racial discrimination in particular. Today’s press is more likely to erroneously see racial discrimination than to intentionally or inadvertently fail to reveal it. Voters, candidates, and elected officials have long adjusted to the presence of a highly cohesive, often highly vocal, bloc of minority voters. Per chance rural legislators remain more conservative, malapportionment no longer bolsters their influence. Indeed, many rural counties once strongholds of conservative whites are today represented by African Americans.
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