Hawaii is a very pretty place. I know because I’ve been there.
But, pretty as it is, it belongs in the penalty box.
The penalty box I’m talking about is Section 5 of the
Voting Rights Act. In 1965, Congress put nearly all of the Southern
States under the thumb of Section 5 of the Voting Rights Act
because they were good at discriminating against their
African-American citizens when they tried to vote. Congress devised
a formula that captured only those States that it wanted to
penalize, states like Mississippi, Alabama, and Georgia. That
formula has two parts (a) whether the jurisdiction used a “test or
device,” like a literacy test administered in a biased manner, as a
way of discriminating against minorities who wanted to register to
vote or vote on November 1, 1964; and (b) whether less than 50
percent of the voting age population was registered to vote on
November 1, 1964 or voted in the elections in 1964, 1968, and
1972.
Covered jurisdictions cannot change their voting laws and
practices without permission. That permission can be obtained
either judicially from the U.S. District Court for the District of
Columbia or administratively from the U.S. Department of Justice.
But if permission is not obtained, the covered jurisdiction is
stuck, even if it wants to do something that noncovered
jurisdictions are already doing.
Things have changed for the better in the almost 40 years
since 1972. When Congress was thinking about extending the life of
Section 5 in 2006, two scholars, Keith Gaddie of Oklahoma and
Charles Bullock of the University of Georgia, used the 2000 voter
registration data to show that the average registration and turnout
rates for minority voters for the six covered Southern states were
not just better than 50 percent, those average rates were better
than the national average. In Georgia and South Carolina, the black
registration and turnout rates were higher than the white
registration and turnout rates, and the registration rate was
higher for black voters in Mississippi. In short, none of the six
covered Southern states meets the second part of the Section 5
formula today.
They don’t meet the first part of the Section 5 formula
any more either. In fact, nobody has for some time, given that
Congress prohibited the use of tests or devices temporarily in 1965
and permanently throughout the country several years
later.
So, an apples-to-apples comparison of states would look at
voter registration and participation data. That’s where Hawaii
comes in. If we looked at only the last three presidential
elections before 2006 instead of looking at 40-year old elections,
Hawaii would be the only state covered.
Congress brushed aside the suggestion that the coverage
formula be updated when it extended Section 5 for another 25 years.
Some said it was inappropriate to compare Hawaii with the covered
jurisdictions, thinking that Hawaii doesn’t have a history of
voting discrimination.
But, that’s not entirely true. In 2000, the Supreme Court
held that Hawaii violated the 15th Amendment by allowing only those
that it defined as being of Hawaiian “ancestry” to vote for the
trustees of the Office of Hawaiian Affairs. In Rice v.
Cayetano, the Supreme Court concluded that Hawaii was
improperly using “ancestry as a racial definition and for a racial
purpose.”
That’s not all. For the past several years, Congress has
been considering the proposed Native Hawaiian Government
Reorganization Act, also known as the “Akaka Bill,” whose
co-sponsors include Senators Akaka and Inouye of Hawaii. That bill
would end-run Rice v. Cayetano and treat native Hawaiians
like Indian tribes. As National Review pointed out, an
effect of the bill would be to “partly disenfranchise a portion of
the state’s residents ….” “[P]artly disenfranchis[ing]” some of a
state’s residents in violation of the 15th Amendment got the
covered jurisdictions into trouble in 1965. Somehow, trying to do
that isn’t enough to put Hawaii into the penalty box.
Moreover, with the proposed Akaka Bill stalled in
Congress, Senator Inouye is apparently
working on a fix. A paragraph in the Senate Appropriations
Committee’s draft bill for Interior, Environment and Related
Agencies Appropriations would pave the way for making Native
Hawaiians an Indian tribe, even though Hawaiians belonged to a
kingdom, not an Indian tribe. Senator Inouye’s current move comes
after he called allegations that he was trying to sneak the Akaka
Bill into a 2009 Defense Appropriation bill “nonsensical” and
claimed that the process for enacting the Akaka Bill was “fully
transparent.”
Maybe, the Voting Rights Act is really about politics, not
whether Hawaii should be a covered jurisdiction. There is no way
that reliable Democrats like Senators Akaka and Inouye, who
apparently believe it’s OK to “partly disenfranchise” some of
Hawaii’s residents, would make Hawaii submit all changes in its
voting standards, practices and procedures to the Department of
Justice for approval. The same holds true for any other Democratic
Senators from non-covered jurisdictions; they could never vote for
a formula that would include their home states. It’s far easier for
them to tell other states to do it.
Capturing states that have long since improved and leaving
out states that should be included is a serious geographic mismatch
that runs afoul of what the Supreme Court has called “the
fundamental principle of equal sovereignty.” The States enter the
Union on an equal footing and must be treated equally afterwards
unless Congress has a good reason not to. Congress had such a
reason in 1965, but it’s not 1965 anymore. Even so, Congress still
treats Alabama differently from Tennessee and Mississippi
differently from Hawaii.
Some suggest that, when Congress decides to treat States
differently, it doesn’t have to act with surgical precision. Maybe
they’re right, but a surgeon who removed six good toes and left one
bad one would be guilty of malpractice.
Right now, at least one challenge to the constitutionality
of the coverage formula is working its way through the courts. The
district court did not side with the challengers, but perhaps the
Court of Appeals or the Supreme Court will tell Congress that it’s
no longer 1965.
